Mr. CHANEY. The person who proposes to organize such an oratorio
usually proposes it to the church.
Mr. SERVEN. As a matter of fact, I have been informed that Mr. Tams is
the principal gentleman in the United States who is doing that sort of
thing, to persuade people to violate this statute. Why? Because it is
to his profit. At least we assume it is, because, according to his
ratings, and so forth, we understand he has made a large amount of
money in this particular business. In fact, it has been suggested that
Mr. Tams's financial standing compares very favorably with some of
these musical composers we have heard about.
The CHAIRMAN. I want to put into the record at this point this notice.
Mr. TINDALE. May I correct a typographical error?
The CHAIRMAN. No; read it just as it is.
Mr. TINDALE. (reading from the first page of a musical composition):
The copying of either the separate parts or the entire composition
by any process whatsoever is forbidden and subject to the penalties
provided under section 4965 of the copyright laws, right to
performance can only be secured by the purchase of a copy of this
score for each and every singer taking part.
You do not allow any comments?
The CHAIRMAN. We will ask for comments. How lately have you been
putting that notice in your copyright books?
Mr. TINDALE. For about four years.
The CHAIRMAN. Does that give any notice to the purchaser of this book
that he can not rent or loan it?
Mr. TINDALE. It states it in a positive manner instead of a negative
manner.
The CHAIRMAN. Let me ask you how it gives any notice whatever that the
purchaser can not rent or lend the book?
Mr. TINDALE. It says that the performing rights are given only by
purchase of this copy.
The CHAIRMAN. But the original purchaser purchases a copy for every
single member of the chorus.
Mr. TINDALE. Then we have no objection.
The CHAIRMAN. No objection to their loaning them? Then we can fix this
in a moment. I want to ask where there is anything in that notice that
would give notice to the purchaser that he could not rent or loan those
books?
Mr. SERVEN. He may loan or rent or do what he pleases, but the fellow
that borrows is the fellow that that notice affects.
The CHAIRMAN. Not at all.
Mr. SERVEN. It is the fellow that wants to give the public performance.
The CHAIRMAN. You call attention to a certain section of the Revised
Statutes, and that has nothing to do with this matter at all--the very
section you call attention to.
Mr. SERVEN. Even with such a notice, it strikes me that that does not
affect what the law does require.
The CHAIRMAN. That is not the question. What the committee is getting
at is whether you give the people you sell these books to any notice at
all that they can not rent them?
Mr. CHANEY. What information would that notice give them?
Mr. TINDALE. I take it that they would have notice that they had to do
something, Mr. Tams having bought the copy.
The CHAIRMAN. I am not talking about Mr. Tams at all; I am trying to
find out whether there is any notice to any musical society--whether
there is any warning that they must not lend these books?
Mr. TINDALE. The warning consists in the word "only"--can only be
secured; and more recent copies----
The CHAIRMAN. I am not talking about the people that borrow; I am
talking about the people that lend--the church society that buys the
copies. Is there anything in that notice that would caution them that
they must not lend these books?
Mr. TINDALE. The notice has to speak for itself. We think that is a
warning.
Mr. SERVEN. We have no objection to the lending; that is not our point;
it is the public performance from the copy that is loaned.
Mr. WEBB. For charity or profit or any reason?
Mr. SERVEN. For any purpose. It is the public performance that is the
thing we object to.
The CHAIRMAN. What do you think the public would borrow these for if
not for public performance?
Mr. SERVEN. They might want to look at them; somebody might borrow it
to look it over.
The CHAIRMAN. I don't think they would borrow many copies for that.
Mr. SERVEN. That is what I say, that we sell almost no copies except
for public performances. There are very few people who ever buy these
for private inspection. Almost every single copy of this sort is sold
for the purpose of public performance, and that is why this very thing
has damaged us so much and estimated to have cut down our sales on
those particular productions from 75 to 80 per cent.
The CHAIRMAN. Who makes that estimate?
Mr. SERVEN. Primarily I make that estimate from the best information I
can get from gentlemen in the publishing business, and secondly, it is
made from those who make the sales, whose sales are reduced.
The CHAIRMAN. It ought to be very easy for the musical people to
furnish their books and give us a verification of that statement. If
before Mr. Tams and the gentlemen engaged in that business entered the
field they were making, for instance, $10,000 a year, and that business
has shrunk, according to your statement yesterday, 85 per cent, it
ought to be very easy for them to give the committee that information.
Mr. SERVEN. It so happens, Mr. Chairman, that our music publishers have
other things to depend on. If they had only this I venture to say that
the probability is that there would not be a single extended music work
published in the United States to-day unless it was done solely through
philanthropy. As to this question of notice, while I consider that
aside from the point, because the law does not say that there shall be
notice, but it says that we have complied with certain other things in
the law, and we have to subscribe to that before we can get our
copyright from the Librarian of Congress, yet this is a copy of the
circular which last January, I understand, was sent to every musical
society that the publishers knew of in the United States, specifically
calling attention to the fact that there was such a law. So, in
addition to whatever the law might have required in the question of
notice, it would not be our fault that they did not have such notice,
and in addition to that we have unanimously recommended that in case of
every right of that sort where the right was reserved it should carry
notice of it somewhere in a conspicuous place on the front of the work
itself, so that there can not be in the future any question as to
whether the fellow that uses it knows he is violating the law.
But to come to what I think is the real meat of this question. This is
purely a business question and nothing else, a question of contract----
The CHAIRMAN. I beg your pardon, you are not relying on your contract
at all; you are relying on your statutory rights.
Mr. SERVEN. Which have to be read into our contract, of course. The
only way we could make a contract which would give public-performance
rights would be by furnishing the purchaser a contract or with an
agreement from us that they should have the performing right, and it
seems to us that the sole matter that is at stake in this controversy
between these gentlemen and ourselves is simply this: Not whether or
not we have sold them performing rights in the past, but whether or not
we shall sell them performing rights in the future, and should you pass
this act I think if the publishers should decline under that to sell
performing rights, I think I see very clearly that they would have the
right to go into the courts and compel it.
Mr. CHANEY. You would not make any sales.
Mr. SERVEN. We would sell to the people who came to us, if they wanted
us to. We might sell them the right to perform it anywhere in the
United States, or we might say that we would sell them the right to
perform it once or ten times or whatever way we might want to limit it,
in a certain place, or at certain places, for instance.
Mr. BONYNGE. Would not that be a good deal better than the way it is?
Mr. SERVEN. Possibly it would; I am not sure. But from the point of
view of the fellow who proceeds in an enterprise without investigating
the law, that would certainly take care of him, and while it would mean
a little more trouble and expense on our part, it would tell him, "If
you steal our performing rights you will be subject to punishment, and
therefore if you do not buy it, we will send you up for a term;" and if
we do it for other things, I do not know why we should not do it for
music.
The CHAIRMAN. I must tell you that you only have two or three minutes
left.
Mr. SERVEN. I will just take one minute more. We have not made
exorbitant profits, as may perhaps be suggested by a copy of the letter
which the chairman showed yesterday--a good many of them. That seems to
be a stock letter, prepared by somebody who is directly interested in
the enactment of this legislation----
The CHAIRMAN. We will not be able to hear any other gentlemen on your
side this morning.
(Informal discussion followed about the method of procedure.)
Mr. WEBB. Would you be satisfied if we were to restrict the performance
of your music to charitable performances or where no charge was made?
Mr. SERVEN. If you will hand in hand with that restrict the persons who
perform our music to doing so without compensation, I think I may say,
can I not [addressing some of the music publishers present], that we
would be willing to do that. But we do not understand--we do not
believe that you ought to say to us that we must furnish our property
without compensation, while all the rest get compensation.
Mr. FURNESS. Providing those people would write to the author--the
composer. Let us be the controller of the property belonging to us.
Mr. TINDALE. They pay for everything else; they pay for the carpet on
the floor and the lights and carriages that come to the church
entertainments.
Mr. FURNESS. I am sure in the case of the firm I am connected
with--Oliver Ditson Company, of New York, Philadelphia, and
Boston--that we would not object to helping charitable performances at
any time; that where the people were not able to buy books we would be
glad to lend them.
The CHAIRMAN. Would you object, then, to an amendment that they might
be loaned for charitable purposes, the only prerequisites being that
they should notify the publisher that they would desire the loan of the
books, or do you desire to pass on each application?
Mr. FURNESS. Yes; we would prefer to pass on each application. I think
we would hesitate to agree to anything else.
Mr. FROEMNE. As a matter of fact, don't you buy most of your
publications? Aren't they your own property?
Mr. TINDALE. Absolutely not. Nine-tenths of them are published on a
royalty.
Mr. FROEMNE. Then you don't buy them outright?
Mr. TINDALE. Very seldom.
Mr. FROEMNE. How many publications have you in your establishment that
are bought outright?
Mr. TINDALE. One out of ten.
Mr. FROEMNE. How many?
Mr. TINDALE. That would take a calculation.
Mr. FROEMNE. I would like to know for the information of the committee
how many they have. As a matter of fact, most of them are bought
outright. They give them a trifling sum of $50 or $25--even $10.
Mr. FURNESS. That is not true, Mr. Chairman, and I want to be put down
on the record as saying it is not true. We have publications to-day,
and we are paying large royalties on the full retail price of the
article, which never retails for that price, and in most cases at
one-half that price.
The CHAIRMAN. Just a minute. The members of the Publishers' Association
may have until next Wednesday to file any statement they please, which
will be made a part of the record.
Mr. SERVEN. I would like five minutes more.
The CHAIRMAN. I can not give you the time.
Mr. BONYNGE. That is all the time we have.
The CHAIRMAN. We will hear you for five minutes [addressing Mr.
Froemne].