Part 25

But if I should go into a photograph gallery and have somebody pose me who did not have that skill--and also because the subject would not admit of it, and would not produce any particularly attractive effect--and the attempt should be made to copyright that photograph, he would go right up against the decision of the Supreme Court in the Sarony case, and he would be told that the copyright was invalid, because it did not involve any intellectual effort in its production.

Mr. CHANEY. I think your picture would influence the committee quite as much as Oscar Wilde's. [Laughter.]

Mr. WALKER. Well, Oscar Wilde is dead, and not here to speak for himself; and I am living still.

Mr. CHANEY. I hope you will live long, sir.

Mr. WALKER. Thank you.

The next case, and the last case in which these matters have been before the Supreme Court, is the case of Higgins _v._ Keuffel, decided by that tribunal in the October term of 1890, and reported in 140 U.S.

In that case a copyright had been issued, in strict conformity with the copyright law of 1874, upon a label used for manufacturing purposes, as a label on a bottle or a package. There was no doubt whatever but what the copyright was in strict conformity with the statute, but the Supreme Court held that the statute was unconstitutional, because although the label was a writing, it was not a writing in the sense that the Supreme Court had defined that word in the Trade-Mark cases. Here Justice Field delivered the opinion of the court, and he said:

The clause of the Constitution under which Congress is authorized to legislate for the protection of authors and inventors is contained in the eighth section of Article 1, which declares that "the Congress shall have power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

This provision evidently has reference only to such writings and discoveries as are the result of intellectual labor. It was so held in the Trade-Mark cases, where the court said that "while the word 'writing' may be liberally construed, as it has been, to include original designs for engravings, prints, etc., it is only such as are original and are founded in the creative powers of the mind."

In the year 1888, a suit was brought in the United States circuit court for the eastern district of Massachusetts for the purpose of subjecting a perforated roll like one of these [exhibiting] to the domain of a copyright upon a sheet of music which had been lawfully and regularly copyrighted. That case was elaborately litigated, and was the subject of argument on both sides before his honor, Judge Colt, then the circuit judge and now the chief judge of the circuit court of appeals for the first judicial circuit.

Judge Colt in that case, commonly called the McTamanny case, gave an elaborate and learned decision to the effect that this perforated paper roll, or any sheet of perforated paper like it, intended for the mechanical reproduction of a tune, did not infringe a copyright upon the tune thus reproduced.

That was in 1888, and that decision was universally acquiesced in by all the judges and all the people of the United States for thirteen years. During that thirteen years a number of gentlemen devoted themselves to making the machines, pianolas, or whatnot, that are capable of being used with these perforated sheets; and among those gentlemen is the modest and excellent inventor, Mr. Davis, who appeared before the committee yesterday. Those men proceeded in full reliance upon the decision of Judge Colt, acquiesced in by everybody that they had a perfect right to perforate those sheets of music and use them in mechanical playing instruments; and great amounts of ingenuity have been devoted to the development of that particular art, and large amounts of capital have been devoted to it, in full reliance upon the decision of Judge Colt, in which everybody acquiesced. But the Æolian Company, of Meriden, Conn.--and in the statement that I am about to make I am going to state what is true; I can not prove the statements here to-day, but I could prove them if the committee should sit and take testimony and send for persons and papers----

Senator SMOOT. You can file the proof, can you not, Mr. Walker?

Mr. WALKER. It would be like a big litigation to do so, and it would be putting a very heavy expense upon me that I would hardly be called upon to bear. But I can tell you how I know.

Mr. CURRIER. If the statements that you are to make now are not true, gentlemen can controvert them.

Mr. WALKER. Certainly. They have had chances to controvert them heretofore. This is not the first time that I am making these statements in public. I have made them in court over and over again, and they have passed entirely unchallenged, because they are perfectly true.

The Æolian Company made certain contracts with a large number of members, and I think with every one of the members of the Musical Publishers' Association----

Mr. BURKAN. I beg to deny that----

Mr. CURRIER. Later on you can be heard, if you wish.

Mr. WALKER. A gentleman showed me one of the contracts to-day, and I have it in my pocket.

Mr. BURKAN. It was the one offered in evidence.

Mr. WALKER. I can not be interrupted. I am telling what I know to be true.

The CHAIRMAN. You shall not be interrupted, Mr. Walker.

Mr. WALKER. Thank you. The Æolian Company made contracts with nearly all or all of the members of the Musical Publishers' Association. Each of those contracts provided as follows: That the particular member of the Music Publishers' Association granted to the Æolian Company the exclusive right to make perforated sheets of paper to play the tunes represented by all of the music published by that particular publisher; and that contract also provided that the Æolian Company should never pay any money for that exclusive right until the Æolian Company succeeded in getting some court to decide that the copyright laws covered the perforated paper roll. That contract also provided that the Æolian Company should pay all the expenses of some test suit made for the purpose of testing that question.

In pursuance of that contract, the Æolian Company caused the White-Smith Music Publishing Company to bring a suit against the Apollo Company, in the southern district of New York, upon a couple of little negro melodies, one of which was entitled "Little Cotton Dolly" and the other of which was entitled "The Kentucky Babe Schottische." I fancy that the copyright on both those negro melodies was not worth as much as a dollar and a half, and that certainly $3 would cover the value of both of them; but they answered the purpose of a test case.

The Æolian Company poured out money like water in that litigation, and endeavored to secure from the United States courts a reversal of the decision of Judge Colt, which had been made many years before. In the course of that litigation I was retained by the Automusic Perforating Company, which was not a party to this litigation, but which had an interest a hundred times greater than that of the nominal defendant. In pursuance of that retainer I presented a petition to Judge Hazel, before whom the case was heard, and in that petition I asked that my client be made a defendant. And I set forth in that petition the whole Æolian scheme in full, with all the clearness of statement of which I was capable, and it was sworn to by my client.

When that statement was filed before the judge, a printed copy was served upon the attorney for the Æolian Company, Mr. Charles E. Hughes, one of the ablest men in the United States, who has distinguished himself in the recent insurance investigation in New York. Anything that he does not think of is not likely to be worth thinking of, and when he put in, as he did, an elaborate brief in reply to my petition, he did not controvert one solitary word of the statement of evidence set forth in the petition about the inherent character of the Æolian scheme, which he would have done if he could have done so.

The CHAIRMAN. What was his reply--raising questions of law?

Mr. WALKER. I do not think his reply amounted to a row of pins.

The CHAIRMAN. Is that a matter of printed record?

Mr. WALKER. His reply? I have a copy of his brief in my office in New York.

The CHAIRMAN. Will you send that to the committee?

Mr. WALKER. I will; yes.

Senator CLAPP. And your petition?

Mr. WALKER. Yes.

Mr. SULZER. He raised the question of jurisdiction in his reply, did he not?

Mr. WALKER. No; not at all.

Mr. SULZER. What was his reply, if you remember?

Mr. WALKER. I would rather not tell, because I do not think it is particularly creditable to Mr. Hughes.

Mr. SULZER. You just complimented him very highly.

Mr. WALKER. And I do not desire to deduct anything from that compliment.

Mr. BONYNGE. You are going to file a copy of it, are you not?

Mr. WALKER. Yes; but my time is limited, and if I gave the honorable gentleman from New York an account of that it would take me ten minutes to do so.

The CHAIRMAN. You will have an opportunity to inspect his reply and that petition when we have the records here.

Mr. WALKER. Now, let me tell you the rest of the story. His reply did not contain a word controverting my statements of fact in the petition. He did not take any issue with the statements of fact in the petition at all--not the slightest. But so far as his reply contained any matter at all, it was first of all an attempt to show that my client was not entitled to be admitted as a defendant anyway, and that, if I was entitled to be heard, he took the ground that my argument was not very conclusive. He did not reflect upon the petition at all; his reply applied entirely to my argument.

Judge Hazel afterwards overruled the petition, and the same day that he overruled the petition he decided the case in favor of the defendant, and followed my brief in his decision. So that the intellectual origin of Judge Hazel's decision can be traced back to the brief that I filed in pursuance of the petition which he overruled.

Very well. The Æolian people then caused that case to be appealed to the circuit court of appeals. When the case came up there I filed a petition in that court to be permitted to argue the case on behalf of the defendant, and also file a brief, both of which petitions were granted. In that petition I repeated the whole Æolian story over again, and I served a copy of that petition on Mr. Hughes a week before the argument came up, and he had abundant opportunity to reply to it. I also called him up and asked him if he was going to reply to it, and he said "No." And when he came to the argument he was as silent as the grave; though he had nearly two hours for his speech, he was as silent as was the grave in respect to all the allegations I had made about the inherent character of the Æolian scheme, and confined himself entirely to attempting to persuade the court that a perforated paper roll was an infringement of sheet music, and that however unconscientious the Æolian scheme might be as the representative of the Æolian company it was entitled to the pound of flesh.

And that was the way he met the second presentation of the Æolian scheme. Afterwards, two weeks ago yesterday, the circuit court of appeals for the second circuit decided against him again.

Mr. BONYNGE. How long ago?

Mr. WALKER. Two weeks ago yesterday.

Mr. CURRIER. The decision is in the record already.

Mr. WALKER. Certainly.

Now, I wish to say this to the committee, that that Æolian scheme is the most ingenious scheme that I ever knew to be invented by anybody in this country for the purpose of acquiring wealth by means of a patent or a copyright monopoly. And, further than that, I wish to say that the Æolian scheme is so ingenious that it does not violate any law whatever except one, and that is the golden rule. You can not square the Æolian scheme with the Sermon on the Mount, but you can square it with the Sherman antitrust act, and you can square it with every statute on the statute books. They have dodged a violation of every statute in inventing their scheme. And now they lack nothing at all to consummate their scheme except for Congress to pass this bill in the form in which it is drawn. That will place the capstone upon the monument, and will give to the Æolian Company a million of dollars a year out of the pockets of the people of the United States. And of that million of dollars they will keep at least $900,000, and about $90,000 of the rest will go to the music publishers, and not one cent over $10,000 of the whole million will go into the pockets of any music composers during their natural lives.

In the nature of the case it must be so. My statements are not based alone upon any special contracts or facts; but as long as human nature remains as it is, as long as the business problem involved in mechanical playing instruments remains as it is, it must be true that a proposition, if enacted and enforced, to subject perforated music rolls to copyright protection will enormously burden the American people for the benefit of corporations and middlemen, and only very slightly for the benefit of musical composers.

These distinguished gentlemen--Mr. Herbert and Mr. Sousa--are so distinguished that they can make their own terms, and this bill would enrich them. I do not see that they need to be enriched. I believe that these gentlemen, for amusing the American people, are each one of them receiving more money than Theodore Roosevelt is receiving for regulating the affairs of mankind. [Laughter.] And I myself have contributed many a dollar to their coffers, and I have always obtained full value therefor. I have had the pleasure of listening to two of their operas lately, and if any of you gentlemen get a chance to hear one of them I hope you will not miss it, because it is worth the price.

But this business problem that I am expounding is one of great complexity, and while the result of many years of experience with this general topic and the result of many months of special investigation of this subject convinces me that all my statements as to how the thing must work are correct, I can not, in any brief period of time, prove these statements to be true by depositions or testimony of witnesses.

Mr. CHANEY. Can you give us an illustration of the respect in which the mere copyrighting of the music roll will do all that?

Mr. WALKER. Yes; I can. I think I can do it in three or four minutes.

The music that the American people want to play now is made up of two kinds--classic music, uncopyrighted music, and the current music that comes out. Now, if this scheme were carried out the Æolian people would have the exclusive right to perforate paper rolls in accordance with all the current music covered by their contracts with the music publishers; and those contracts cover at least nine-tenths of all the music being produced month by month and year by year.

Now, inasmuch as the Æolian Company would have the exclusive right to perforate sheets for half the music that the people want, nobody could sell a music-playing instrument unless it was manufactured by the Æolian Company, because the Æolian Company as a part of their policy would refuse to sell their perforated sheets except for use in connection with their own instruments; and this would be the situation: You want to buy a pianola. You go to New York and call on the Æolian people. They say: "We will sell you a pianola, and if you buy it from us you can use it to play any tune known to man, classical or modern. Go over to our neighbor across the street, and he will sell you a pianola, too, but he can only sell you music rolls to represent classic music and uncopyrighted music. If you are contented with Beethoven and Mozart and the masters, and do not care for Sousa and Victor Herbert and their contemporaries, go across the street and buy your pianola. But if you want a pianola that will enable you to play any copyrighted music at all, you must buy it from us; for there is not another party in the United States that can sell you one of those machines."

So that the passage and enforcement of this bill would practically give the Æolian Company, of Meriden, Conn., a permanent patent on an old machine, namely, the automatically played piano, and all other musical instruments played by perforated paper roll.

I assure you, gentlemen, that this bill must in the nature of the case have that operation. So that the moment that the Congress passes that bill, if it were to be enforced by the courts afterwards, Congress would be giving to the Æolian Company, of Meriden, Conn., a permanent patent on that great industry, without those people ever having invented a solitary part of the origin of the business, and without ever having composed a single piece of music played in their machines.

The CHAIRMAN. Mr. Walker, had you intended to speak specifically about the provisions of this bill?

Mr. WALKER. I had, but I have been interrupted so much that I have not been able to do so up to this point. Now I am going to devote myself entirely to that.

The CHAIRMAN. You have only twenty-five minutes.

Mr. WALKER. I realize that.

Mr. CHANEY. You were going to speak of the constitutionality of the bill, also.

Mr. WALKER. That is what I am going to take up now.

The Constitution provides that copyrights may be granted on writings. This bill provides that copyrights may be granted on works. The fourth section of this bill reads as follows:

That the works for which copyright may be secured under this act shall include all the works of an author.

Although this bill purports to be founded on the Constitution, and although the Constitution is confined to the word "writings," that word "writings" does not appear among the 8,000 words of that bill. It is not there once. This bill is based upon the theory that Congress has power to grant an exclusive right to works, and the word "works" is used more than 30 times where the word "writings" ought to have been used, and the word "writings" is not printed in that bill from its beginning to its end.

I am not reflecting upon any gentleman who drafted the bill in that way, because the bill was drawn upon the theory that the Constitution justifies copyright upon an author's works. Now, the word "works" includes "writings" and is far more comprehensive than "writings." Take the case of Theodore Roosevelt. He has published and printed 15 volumes of original works, and he has delivered without writing more than 1,500 speeches. Now, those books that he has printed and those speeches that he has delivered are equally his works, but they are not equally his writings, because he never has reduced those speeches to writing. So that there is a plain distinction between works and writings, and that distinction is recognized in this bill, as follows. (Now I will devote myself for the rest of the time to strict analysis.)

SEC. 4. That the works for which copyright may be secured under this act shall include all the works of an author.

Then twelve classes of works are enumerated. The third of those classes of works is said to be "oral lectures, sermons, and addresses." Now, those productions come under the head of works, and do not come under the head of writings, confessedly.

Mr. BONYNGE. But they could not be copyrighted until they were reduced to writing, could they?

Mr. WALKER. Yes; they could, under this bill.

Mr. BONYNGE. How?

Mr. CURRIER. What would you file in the copyright office?

Mr. WALKER. You do not have to file anything for a year.

Mr. CURRIER. I know that; but you have got to file something then.

Mr. WALKER. But you get a year's copyright without ever doing that, and this bill would give a man a monopoly of a whole year on a speech never reduced to writing, and that is a "limited time." And if he chooses ever to reduce it to writing, then all he has got to do is to file one copy in the office of the Library of Congress and not publish it at all.

Mr. CHANEY. Well, you must remember that we must confine this to copyrighted matter.

Mr. WALKER. You must confine it quite narrowly, I think; but please let me develop my particular thought.

It is perfectly plain that under this bill a man may have a copyright on an oral sermon, lecture, or address and maintain that copyright for a whole year without that discourse ever being even put into typewriting during that period. That is a perfectly plain case, therefore, of copyrighting a work that is not a writing.

Now, come down to subsection G, "works of art." There is another item. Now, that word is much broader than "writings." I have made a good many works of art myself. Everybody that invents a complicated machine produces a work of art and a work of high art. There are a great many works of art here in this room which could not by any possible strain of language be denominated "writings." There is a perfectly plain case of attempting to copyright, under this statute, a work which is not also a writing.

Mr. CURRIER. What change would you suggest in subsection G?

Mr. WALKER. I have formulated such a change as that, but it would take a little time to explain it.

Mr. CURRIER. Very well. Take your own course.

Mr. WALKER. I am very glad to be at the disposal of the committee, but it would take me five minutes to explain. It is a very important point.

Subsection H covers "Reproductions of a work of art." There is a perfectly flagrant case of attempting to copyright not only a thing that is not necessarily a writing, but also a thing that is not even original; whereas the Supreme Court has told us over and over again that nothing can be copyrighted that is not original.

Now, go over to the next page, page 4, Class L:

Labels and prints relating to articles of manufacture, as heretofore registered in the Patent Office under the act of June 18, 1874.

That was the very act that the Supreme Court held fifteen years ago was unconstitutional as not authorizing copyright on things which are not writings. So that there is a recommendation to this committee to reenact a law that the Supreme Court has expressly held to be unconstitutional.

Now, come, if you please, to the second page of this bill. The first section of this bill enumerates exclusive rights to be covered by copyright. Subsection C is:

To deliver, or authorize the delivery of, in public for profit, any copyrighted lecture, sermon, address, or similar production prepared for oral delivery.

Mr. CAMPBELL. What page is that?

Mr. WALKER. The top of page 2.

Senator SMOOT. Subdivision C.

Mr. WALKER. (Reading):

To deliver, or authorize the delivery of, in public for profit, any copyrighted lecture, sermon, address, or similar production prepared for oral delivery.

A lecture could be copyrighted under this statute without any copy ever being put even into typewriting, as I stated a little while ago, and that copyright could be maintained for a year, when the discourse has no existence whatever except in the mind of the man who delivers it, and in the ears of those who heard it, and in the air that transmitted it from the vocal organs of the lecturer.

D--To publicly perform or represent a copyrighted dramatic work.