Mr. FROEMNE. Mr. Chairman and gentlemen of the committee, first I would
wish to try to straighten out a few false statements that were made
yesterday, and I want to say that they were made not by mistake, but
absolutely----
The CHAIRMAN. I don't think we want anything of that kind to go in the
record.
Mr. FROEMNE. I wish to say that according to these very interests and
the statements made in evidence the rights of performance can only be
secured by the purchase of a copy of the score for each and every
singer taking part. A copy of each score was bought for the past
fifteen years by Mr. Tams. The publishers knew he was renting it out.
It has only been a few months ago they wanted to make a stop of it, and
I will now say that for the future--from now on--he should not have the
right, or any other library have the right, to rent them out; but he
certainly has a right to the use of the stock he has, which he bought
and paid for. He does not reprint them, you understand. My friend
refers you to a patent. Look at a patent. A patent has two sides to it.
You have a right to buy a patented machine, but you have no right to
manufacture it.
Now, we are not making plates to print these books. We don't buy one
book and print a thousand of them and rent them out. That would be an
infringement; but we are paying whatever the price of it is, 20 cents
or 30 cents or a dollar for each book, and we have bought thousands of
books, and these music publishers have received from Mr. Tams from
$3,000 to $4,000 a year for the past fifteen years. Where is the
justice now, when he has his place stocked up, in preventing him from
making any profit on it? He has his musical library in connection with
his other library; he rents out dramatic compositions and other things
on which royalties are being paid.
Mr. GILL. May I make a suggestion? As to what he has already purchased,
his rights in that connection and the conditions under which he
purchased would be for the courts to determine, would it not?
Mr. FROEMNE. Yes.
Mr. GILL. We can not affect that in any way?
Mr. FROEMNE. True. But I am saying now where one of these church choirs
can rent the music it is a great blessing. I have some letters here to
that effect, saying it is a great advantage to them to have a place
where they can rent a book which is sold for from 50 cents to a dollar,
the rent being, probably, only 10 cents apiece, or, say, one-sixth the
cost. As I explained yesterday--some of you gentlemen were not
here--these societies can only use a book once a year. They can not
give the same performance two years in succession, and it is to their
advantage either to change it, or, if they bought the books, to turn
them over to another society, which it seems they should have the right
to do, as they have once paid for the book. If you buy a sewing machine
or any other patented article you have a right to sell it or rent it or
give it away, although you have no right to manufacture it--that would
be an infringement of the patent.
Mr. CHANEY. What is that suit you were going to explain?
Mr. FROEMNE. I will explain it. There are in this association of
publishers about 25 members, and of those 25 members, I believe I told
you yesterday, a number of them are absolutely fair and just; and like
any other organization, you will find a few that are not; and this
circular, in which there was an attempt made to have every member sign
them, only secured seven signatures, or eight, of which Mr. Ditson
represented three. He is from Boston, New York, and Philadelphia, as he
told you himself. This circular was sent out last January, and has
injured Mr. Tams, not in the renting of these particular cantatas,
masses, and so forth, but other works which he has, and publications of
his own. Now, I will show you where Mr. Tams's profits come in on
publications which he owns. He can print thousands of them, costing him
only 1 or 2 cents apiece, which he rents out at the same price as the
publications which he has to buy at 50 cents or a dollar apiece. This
circular has stopped him. We have letters in our possession from
parties writing to him. I saw one to-day. [Addressing a gentleman.]
About what is that last one? I mean before we left New York? [After
receiving a suggestion from the gentleman.] "The Crucifixion," a
publication by Mr. Tams. Therefore that interferes with the other
business, or his library business, for it is conceded, and my friends
will not deny, that Mr. Tams has the largest library in the world.
Before coming before your committee to show you we were absolutely fair
and just and didn't want anyone to take advantage of this amendment,
that the phraseology was absolutely correct, we met their attorney, Mr.
Serven, a few days ago, and I explained to him my purpose. He himself
saw the justice of it. Mr. Bayly, who represents a reputable house here
in Washington (Ellis & Co.)--they didn't sign the circular, by the
way--didn't see any impropriety in it, but they said they expected two
men from New York, and if they could arrange with them, no doubt the
matter would be adjusted. I said: "Change the phraseology; do whatever
you like; do not interfere with that property which we have bought and
which we claim we have a right to rent in order to at least get our
money back, many thousands of dollars, which they cost us." It can not
be denied, we can prove it by the bills, that Mr. Tams has paid for the
past fifteen years from three to four thousand dollars for books which
he bought of them. They knew he had a library; they permitted him to
rent it; they knew he had rented it, and it is only recently that they
are trying to stop it.
Mr. SULZER. Do you mean $3,000 or $4,000 a year?
Mr. FROEMNE. Yes. So making it altogether from $45,000 to $60,000. As
he explained to you yesterday, a work can not be loaned out more than
five years once a year. It is then worn out, the pages break, and you
can not use them any longer. He can not reprint them; if he did, of
course he would make himself liable to the provisions of the law. So he
doesn't get more than what it costs him for renting it, and it is a
blessing to those who rent from him--that is what those societies say.
They can go to Mr. Tams or to anyone else, or to another society, and
rent these books for 10 cents apiece, or whatever the price.
Now, I want to say that these gentlemen are very unjust, as has been
brought out by some of the questions asked by the committee. "What do
you object to if this is done without profit?" Well, they don't know
exactly, except that they object. That is about the only conclusion I
could reach as to what their answers mean. Now, they show great feeling
toward charitable organizations--they show what great philanthropists
they are----
The CHAIRMAN. The time has expired. Anything further you desire to
submit can be submitted in writing before next Wednesday, and will go
in as part of the hearing. The same privilege will be extended to the
music publishers. I want to ask the representatives of the latter
gentlemen present what their objection is to a bill if we amend the law
in this way:
Nothing in this act shall be construed so as to prevent the
performance for charitable purposes, and not for profit, of
religious and secular works, and so forth, rented or borrowed by a
public school, church choir, or vocal society, when rented or
borrowed from a public school, church choir, or vocal society.
Mr. FROEMNE. Or from the libraries up to the present time.
The CHAIRMAN. In the amendment I suggest now I will strike out "from
any person or musical library."
Mr. TINDALE. That would be very easily evaded.
The CHAIRMAN. You can state your objection in the supplementary
statement you file. I wish to say for myself--and I think I speak for
the committee--that as the thing now rests in the minds of many members
of the committee we had better endeavor to reach some kind of a
compromise proposition. I think you had better direct your attention to
some modification of the law.
Mr. TINDALE. We are speaking for the American composer who furnishes
this entertainment.
The CHAIRMAN. You have run for more than a hundred years with no
serious trouble, as you stated to us yesterday. Then came the musical
libraries, men conducting an establishment like that of Mr. Tams, and
the objection urged yesterday by you gentlemen to any modification of
the law was on account of that. Now, suppose we cut that all out?
Mr. FURNESS. In going back for a hundred years this international
copyright law has changed very materially the native publications in
this country. Previous to that time we had hardly anything but foreign
publications worthy of any great value, nothing but a few light
cantatas and light operas; but now the protection of the international
copyright causes a foreigner to spend money in this country to make his
publications known and give a better showing to the American author and
publisher.
The CHAIRMAN. The committee must adjourn.
(Thereupon, at 12.05 o'clock, the committee adjourned.)
_Memorandum in support of H. R. 11943._
It is unfortunate that sufficient time could not be granted to me on
the hearing in favor of the amendment proposed by Congressman Bennet to
section 4966 of the copyright law, especially as those opposing it
consumed more than three times the time on the first day of the hearing
than was consumed by our side, and that in addition thereto
three-quarters of an hour was consumed by counsel for the opponents to
the bill on the hearing held on the 3d instant.
In addition to what has been said in favor of the bill and by way of
reply to opponent's argument, we beg to submit that it must have been
apparent that the music publishers will consent to none of the
suggestions made by the chairman of the Committee on Patents. It will
be remembered that the opponents to the amendment have made the
ridiculous and false statement that their sales have decreased from 80
to 85 per cent by the renting of its copyrighted publications, and they
should be required, as suggested by the chairman of the Committee on
Patents, to submit statements from their books showing the amount of
sales prior to the passage of the act--section 4966 of the copyright
law--and since the act has been in existence.
It is safe to say that by this method it would be shown, if true
statements are presented, that the decrease of sales would not amount
to over 5 per cent, and this 5 per cent is more than offset by the
benefit derived by the publishers from the fact that in nearly all
cases where a choir, vocal society, or school rents copyright music
certain members thereof, and also individuals in the audience
witnessing such performances also purchase a copy so used to be kept
for their personal use. Thus the publishers reap the benefit of the
copies sold after a performance given from rented copies.
In answer to a question put by me to Mr. Tindale as to whether or not
it was not a fact that his firm owned outright most of its
publications, he made a statement to the effect that they did not own
more than one-ninth or one-tenth per cent of all their publications,
but could not say how many publications it amounted to. As a matter of
fact, as far as my knowledge goes, I understand that Schirmer & Co.,
who was represented at the hearing by Mr. Tindale, own outright most of
their publications. I am attorney for many authors and composers, and I
know that when they need money they take their composition to a
publisher and he will pay them a small amount--$25 to $100--for a
musical composition, and no matter what the income may be, whether it
is $25,000 or $100,000, these music publishers are not philanthropists
enough to hand any additional sum to such author or composer.
The statement has not been denied that Mr. Arthur W. Tams has purchased
of the various music publishers publications of secular works, such as
oratorios, cantatas, masses, and octavo choruses amounting to three to
four thousand dollars per annum, and he has since ascertained that it
was nearer $5,000 per annum, and that this has been going on for the
past fifteen years. These publishers knew the nature of his business
and have never interfered with the renting thereof. I believe it has
already been stated that these publications were bought by Tams as a
convenience to the various church choirs, schools, and vocal societies
who rent and perform the same without profit, and that it takes five
years or more for Mr. Tams to get back the amount which it cost him for
the publication. It is conceded that Mr. Tams is the proprietor of the
largest music library in the world, and that his profit is derived from
publications of his own of which he can print any number of thousands
of copies at a cost to him of from 1 to 2 cents apiece, and that in
addition thereto that he rents operas and other plays belonging to him
which are being produced for profit and on which royalty is paid by
him, and it was on account of the pressure of his various customers
throughout the United States that he did bother with buying the
publications of religious or secular works, such as oratorios,
cantatas, masses, and octavo choruses for the purpose of renting the
same to church choirs, schools, and vocal societies that performed the
same without profit.
Mr. Tams is willing that libraries should not be permitted to rent the
same, provided that it shall refer to future and new works, in which
case he would not need to buy the publications and have them on hand
for that purpose. It is an extraordinary claim on the part of the music
publishers to say that, while they admit that when they sell copies of
their publications it carries the performing rights with the copies
sold, yet the music publishers claim it only carries these performing
rights to such persons who purchased the same from them, and that these
books which have been purchased from them can not be used for
performance by any other society to whom they may be loaned or rented
by the society or person purchasing the same originally.
Take any patented article, like a sewing machine; one who has bought it
clearly has a right to lend it to another, to sell it, or to rent it
without any infringement on the rights of the patentee, but when he
attempts to manufacture the same that is another question, just the
same as if Mr. Tams or any other purchaser of books from the music
publishers would attempt to reprint them. This would be clearly wrong;
but as long as this is not done and the books have once been paid for,
how can the music publishers, composer, or author be wronged if it was
performed by A., B., and C., so long as these very books have been
purchased and paid for originally?
It seems to me that section 4966 of the copyright law should not be
permitted to be used as a club by some of the unscrupulous music
publishers in any case where they hear that one of their publications
is to be performed by one of our schools or a church or a vocal society
for the purpose of charity and without profit, and threaten them by
imprisonment and damages. The imprisonment clause seems to be a most
obnoxious and unjust clause, and not inserted for any good to society.
It seems that the music publishers, authors, and composers got along
swimmingly prior to the adoption of the statute, section 4966 of the
copyright law, and it is admitted that either the whole act should be
eliminated or an amendment made by which these poor societies should
not be held up in the case where the books have been paid for. They
should be permitted to rent to each other or borrow from each other or
buy from each other the books which have originally been bought of the
music publishers, and the music libraries that have purchased the books
from the various music publishers should be protected to date on such
publications, if it should seem, in the wisdom of the Committee on
Patents, that they should not be permitted hereafter to rent them.
The music libraries of the country to these poor societies are a
blessing and are actually necessary, as they act as a clearing house,
as, for instance, one society in St. Louis might wish to use a
copyrighted work, such as Hiawatha's Wedding Feast, and if the various
other societies in the neighborhood do not own copies of this
particular work, it is necessary for a music library to be in existence
that can furnish the work desired, and which at the time might be
unobtainable from a sister society, or any society owning the work
desired, as they might be using it at the time themselves, and there is
absolutely no wrong in the renting of publications by these libraries
of books which they have purchased, and they should not be prevented
from renting them to the various societies for the reason that they
have once been bought and paid for, and there can not be any profit
derived therefrom by their renting it, as it has already been argued
that it takes about five or six years to obtain the return of the cost
of the publication, and that at the end of such time the books become
useless from the handling they have received and have to be thrown
away, as each society performs only one publication each year.
The publishers themselves are among the largest customers of the music
libraries, and have at various times arranged with the Tams Library to
make at his own expense orchestrations to their various works, and hold
them in stock, so as to have them available for the use of the
publishers, so that if a customer of a publisher desired to purchase a
large number of copies of any particular work that purchase would be
contingent on the ability of the purchaser or publisher to obtain the
orchestra parts (which are in manuscript), and publishers have been
writing to their customers, after selling a lot of vocal scores, that
they, the customers of the publishers, could obtain the orchestra parts
to the various works desired at Tams's library, and we have letters
from various publishers, Ditson, Schirmer, and others, to prove this,
and the publishers themselves, in many instances, before selling one of
their customers a particular work, would send to Tams's library and
obtain from him the orchestra parts to send to accompany the goods
sold, and in many instances had notified Tams that they proposed to
sell a particular work and desired to know if he wished to furnish the
orchestra parts to the same.
In conclusion it is urged that the Committee on Patents should render
immediate relief by recommending the amendment, or some amendment,
favorably on which immediate action by the House may be taken in the
passage of the same. We submit that the matter of the passage of the
amendment should not be delayed on the pretense that the same can be
inserted and taken care of in the general codification of the copyright
law, for it seems on a casual perusal thereof that there are many
imperfections and unfair and unjust discriminations therein and that it
is safe to say that it will take some time to come before it can be
reported if it will be reported at any time.
Although the Bennet bill has been introduced in January, we have
received no invitation to attend any of the conferences in the
preparation of the codification of the copyright law, and knew nothing
of the kind being contemplated until we arrived at Washington for this
hearing, and it is safe to say that there are a great number of others
interested in the copyright law who have been ignored.
It is therefore respectfully submitted that action on the Bennet
amendment should not be delayed, but that relief should be granted at
this session.
Respectfully submitted.
HERMAN FROMME.
_287 Broadway, New York City.
Counsel for F. N. Innes, of Chicago, Ill.; The A. W. Tams Music
Library, of New York, and George Lowell Tracy Music Library, of
Boston, Mass._
_Brief in opposition to H. R. 11943 to amend the copyright law
respecting public performance of musical works._
On behalf of the Music Publishers' Association of the United States,
the following is submitted supplementing the hearings already had on H.
R. 11943, "A bill to amend title 60, chapter 3, of the Revised Statutes
of the United States, relating to copyrights."
The music publishers and the composers of music whom we represent are
opposed to the bill, which in effect provides for the public
performance of religious and secular works of a musical character
without first obtaining consent therefor from the copyright proprietor.