Part 4

The league had stood for a copyright commission instead of this conference. But when we find this bill, sir, presented as the result of only a year's work, and remember that the English copyright commission took years to produce a draft which has not yet, after nearly a generation, been enacted into law, we can not but express the greatest satisfaction with the result now before you. We do not feel, sir, that any bill can be presented to your committee which does not call for the most careful consideration, for protest from outside interests, and for discussion, not only in your committee and in the halls of Congress, but throughout the public. We do not feel that any such bill would be possible; and I wish very heartily, sir, to record the American copyright league as favoring the fullest discussion and the fullest consideration of any of what may be called the minority interests. We believe that the interests of the office are perfectly consistent with the interests of the public; and in that view, sir, we support most heartily, individually and as members of the conference, the bill which you have before you.

STATEMENT OF FRANK D. MILLET.

Mr. MILLET. I shall have very little to say, Mr. Chairman. The artists are interested in this bill because, as the committee undoubtedly understands, the copyright of a picture is often, almost always, more valuable to the artist than the original work--that is, of greater money value. We have had long experience with the law, and we have not found that we have been protected. So little protection has been afforded that it is no longer the habit for the artist to copyright his picture. We have gone out of the business of copyrighting, practically, as you will find if you will go to any exhibition, because we have not been able to get any relief in case our work had been infringed upon. We have always objected to the copyright notice which we have been obliged to put on the picture, because it is considered a disfigurement. That is another reason why we have not copyrighted. That has been a very great loss to us as a class. That has been one of the reasons why we prefer, many of us, to spend much of our time abroad.

If you will pardon me for a moment I will give a personal instance.

I have painted in England and in Europe over twenty years. I never had one bit of difficulty with my copyrights over there, and I have had considerable income from my copyrights; and I think $7 or $8 is about all the money I have ever gotten in America out of copyrights here.

Since the conferences began last winter two of my pictures have been reproduced by a journal in New York, one of them in color. They cut off my name and copyrighted the picture themselves. In the case of the other they left my copyright on and published it without my consent. I have absolutely no redress, because the law says that I can get a dollar for every copy found in their possession, and they were not fools enough to have any copies in their possession, of course. I relate this little personal tale, because that is what has been the experience of all the artists, painters, and sculptors.

We do not pretend to say that this bill, in these particular cases, or in the first case of notice, meets our highest desire, because we would like to have it exactly as it is abroad, no notice being required whatever. But we met our friends, our dearest foes, the reproducers, and made this compromise, which is satisfactory to us on the question of the notice, as to what we shall put on the picture without disfigurement, and we think that the bill is the best one that we could possibly agree to, and we are all of us fully in favor of the bill as it stands.

I thank you.

Mr. SULZER. Is the bill as it is drawn at present satisfactory to you?

Mr. MILLET. It is satisfactory to us.

Mr. SULZER. And you want it passed just as it is?

Mr. MILLET. We would like to have it passed as it is.

Mr. SULZER. That would protect the artists?

Mr. MILLET. As far as we can make out, that would protect us.

Mr. CURRIER. Is it the criminal remedy that is provided by this bill that would give the protection you need?

Mr. MILLET. That is one of the things.

Mr. BONYNGE. What are the new remedies given to the artists by the provisions of this bill?

Mr. MILLET. At the end of the bill you will find them.

Mr. CHANEY. Just state them from memory.

Mr. MILLET. There is a misdemeanor clause that we are very keen on, the same as for the dramatists. We do not see why it should not be a misdemeanor, to apply to us as well as to the dramatists--sections 23 and 25.

STATEMENT OF JOHN PHILIP SOUSA.

Mr. SOUSA. Mr. Chairman, I would much rather have my brass band here. I think it would be more appreciated than my words will be. [Laughter.]

Mr. CHANEY. We would rather have you, just now.

Mr. SOUSA. Thank you.

Mr. Chairman, I would like to quote Fletcher, of Saltoun, who said that he cared not who made the laws of the land if he could write its songs. We composers of America take the other view. We are very anxious as to who makes the laws of this land. We are in a very bad way. I think when the old copyright law was made, the various perforated rolls and phonograph records were not known, and there was no provision made to protect us in that direction. Since then, the talking machines have come out, and the claim is made that the record of sound is not a notation.

There are three ways for the composer to make a living by his music: By sight or by sound or by touch. The notation of my compositions or the compositions of any other composer for the blind must be entirely different from the ordinary, because it must be read by the sense of touch. The notation that is made for a combination of instruments is brought out by sound. The claim that is made about these records is that they can not be read by any notation--simply that no method has been found to read them up to the present time, but there will be. Just as the man who wanted to scan the heavens discovered a telescope to do it. No doubt there will be found a way to read these records.

We are entirely in favor of this bill. The provisions satisfy us, and we want to be protected in every possible form in our property. When these perforated-roll companies and these phonograph companies take my property and put it on their records they take something that I am interested in and give me no interest in it. When they make money out of my pieces I want a share of it.

Mr. SULZER. They are protected in their inventions?

Mr. SOUSA. Yes, sir.

Mr. SULZER. And why should you not be protected in yours?

Mr. SOUSA. That is my claim. They have to buy the brass that they make their funnels out of, and they have to buy the wood that they make the box out of, and the material for the disk; and that disk as it stands, without the composition of an American composer on it, is not worth a penny. Put the composition of an American composer on it and it is worth $1.50. What makes the difference? The stuff that we write.

Mr. BONYNGE. What is the protection by the terms of this bill that is given you?

Mr. SOUSA. That in any production of our music by any of these mechanical instruments they must make a contract with us or with our publishers; that they must pay us money for the use of our compositions.

The publishers of this country make contracts with the composers, and agree to give them a sum outright or a royalty on sales for each and every copy that they publish and sell.

The companies making records for talking machines take one copy of a copyrighted piece of music and produce by their method a thousand or more disks, cylinders, or perforated rolls. If they would buy one copy from my publishers and owners of my copyright and sell that one copy, I would have no objection; but they take the copyrighted copy and make what they claim is a noncopyrighted copy, sell it, and do not give the owner of the copyright a penny of royalty for its use; and they could not do this if the composer had not written it and the publisher had not published it, and I want to be paid for the use they make of my property.

Mr. WEBB. Does this affect records already made?

Mr. CURRIER. No; it does not affect existing copyrights.

Mr. SOUSA. No. That is a sop--I am willing to let it stand for the sake of the future, but I think it is wrong. That is a sop to them, the talking-machine companies, and hereafter they will make money after this law passes on the pieces that I made before the law went into effect.

Mr. CHANEY. So that we will get "El Capitan" from the phonographs in various places?

Mr. SOUSA. Yes, sir; and I'll get nothing for it; and I am the man that made "El Capitan." [Laughter.]

I speak in the interest of the publishers and the composers, and some of them asked me to come here because I could talk from the heart, and I do. I am sure of what I say. There may be some interests opposed to the bill for selfish reasons, but these interests know the bill simply gives us rights we are entitled to.

As to the artists, Mr. Millet said that he got $8.75 for one of his pictures. You can take any catalogue of records of any talking machine company in this country and you will find from 20 to 100 of my compositions on it. I have yet to receive the first penny for the use of them.

There is another point to consider. These talking machines are going to ruin the artistic development of music in this country. When I was a boy--I was born in this town--in front of every house in the summer evenings you would find young people together singing the songs of the day or the old songs. To-day you hear these infernal machines going night and day. [Laughter.] We will not have a vocal chord left. [Laughter.] The vocal chords will be eliminated by a process of evolution, as was the tail of man when he came from the ape. The vocal chords will go because no one will have a chance to sing, the phonograph supplying a mechanical imitation of the voice, accompaniment, and effort.

On this river, when I was a young man, we went out boating and the music of young voices filled the air.

Last summer and the summer before I was in one of the biggest yacht harbors of the world, and I did not hear a voice the whole summer. Every yacht had a gramophone, a phonograph, an æolian, or something of the kind. They were playing Sousa marches, and that was all right, as to the artistic side of it [laughter], but they were not paying for them, and, furthermore, they were not helping the technical development of music. Go to the men that manufacture the instruments that are nearest the people--the banjo, the guitar, and the mandolin--and every one of them will tell you that the sale of those instruments has fallen off greatly. You can not develop music without these instruments, the country singing school, and the country brass band. Music develops from the people, the "folk songs," and if you do not make the people executants, you make them depend on the machines.

Mr. CURRIER. Since the time you speak of, when they used to be singing in the streets----

Mr. SOUSA. Well, Mr. Currier, I am 50 years old----

Mr. CURRIER. I was just going to ask you: Since that time, the law has been passed to protect the authors of musical compositions, which would prohibit that. Is not that so?

Mr. SOUSA. No, sir; you could always do it.

Mr. CURRIER. Any public performance is prohibited, is it not, by that law?

Mr. SOUSA. You would not call that a public performance.

Mr. CURRIER. But any public performance is prohibited by the law of 1897?

Mr. SOUSA. Not that I know of at all. I have never known that it was unlawful to get together and sing.

Mr. CURRIER. It probably has not been enforced to that extent.

Mr. MCGAVIN. You think it ought to be against the law for some people to attempt to do it, do you not, Mr. Sousa? [Laughter.]

Mr. SOUSA. Yes.

Mr. CURRIER. It is possible that that has deterred the young people from singing.

Mr. SOUSA. Would you not consider it a greater crime to turn on a phonograph----

Mr. CURRIER. I do not consider singing a crime.

Mr. SOUSA. If you would make it a misdemeanor, do you not think it much worse to have a lot of these machines going than to have a lot of fresh young voices singing?

Mr. CURRIER. I think a great many people in this country get a great deal of comfort out of the phonograph.

Mr. SOUSA. But they get much more out of the human voice, and I will tell you why: The phonograph companies know that. They pay Caruso $3,000 to make a record in their machine, because they get the human voice. And they pay a cornet player $4 to blow one of his blasts into it. [Laughter.] That is the difference. The people, the homes, want the human voice. First comes the country singing school, and next comes the country brass band. Let us do something to help them. You can do it by making these people pay me for everything that I compose. [Laughter.]

STATEMENT OF VICTOR HERBERT, ESQ.

Mr. HERBERT. Mr. Chairman and gentlemen, it is hardly necessary for me to add anything, I think, to Mr. Sousa's statement. I think he has made the question very plain and clear.

I would like to say this, that both Mr. Sousa and I are not here representing ourselves as individuals and our personal interests, but we stand here for many hundreds of poor fellows who have not been able to come here--possibly because they have not got the price--brother composers whose names figure on the advertisements of these companies who make perforated rolls and talking machines, etc., and who never have received a cent, just as is the case with Mr. Sousa and myself.

I do not see how they can deny that they sell their roll or their machine, because they are reproducing a part of our brain, of our genius, or whatever it might be. They pay, as Mr. Sousa said, the singer who sings a song into their machines. They pay Mr. Caruso $3,000 for each song--for each record. He might be singing Mr. Sousa's song, or my song, and the composer would not receive a cent. I say that that can not be just. It is as plain a question, Mr. Chairman, as it could be, to my mind. Morally, there is only one side to it, and I hope you will see it and recommend the necessary law.

Mr. CURRIER. Just an incident: The talking machine company that pays a singer gets no protection on that record under the law, either, does it?

Mr. HERBERT. I think they do.

Mr. CURRIER. Could not a competing talking machine company immediately reproduce those records?

Mr. HERBERT. Well, they would go for them.

Mr. CURRIER. I have an impression that there is no law under which they could.

Mr. HERBERT. I think they would.

Mr. CURRIER. I think there is no protection at all.

Mr. HERBERT. I know that we are not protected. Since the courts have held that the perforated roll is not an imitation of the sheet music we have absolutely no ground to stand on.

STATEMENT OF MR. HORACE PETTIT.

Mr. PETTIT. I represent the Victor Talking Machine Company. While I am not here as one of the advocates or proponents of the bill, it is very fitting, I think, at this time, immediately after Mr. Sousa's and Mr. Victor Herbert's appearance, that I should state what we have to say in regard to the talking machines. It may be that Mr. Herbert and Mr. Sousa have been somewhat abused by the talking-machine companies. They, however, certainly do not show it in their appearance.

Our position is to be equitable and just in the matter. We believe that there should be protection, and we are willing that this bill, with certain amendments we have to suggest, should be passed, substantially on the lines indicated, so that the composer should have the protection against his music or his compositions being copied on a record of a talking machine; with the understanding, however, that it does not apply to subsisting copyrights. I believe that is the understanding as expressed, although there is some ambiguity in the language, and therefore I would suggest that section 3, in that regard, be modified, either by striking out the section or by adding to it. Section 3 reads (reading):

SEC. 3. That the copyright provided by this act shall extend to and protect all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting, but without extending the duration of such copyright.

I therefore would add to that, in view of that somewhat ambiguous language:

_And provided_, That no devices, contrivances, or appliances, or dies, or matrices for making the same, made prior to the date this act shall go into effect shall be subject to any subsisting copyright.

This, I believe, is the intention of the framers of the bill, although it is somewhat doubtfully expressed. So much in that regard.

Further, gentlemen, if the talking machine companies are to pay the author and composer, as they will under this act if passed, a royalty on the copyrighted compositions, the talking machine companies should also be protected. We might pay Mr. Herbert or Mr. Sousa or Mr. Caruso, or any of the opera singers, a thousand dollars for making a record. It is perfectly possible, within the known arts, for that record, after we have made it, to be reproduced by a mere copperplating process by somebody else and copied, so that we would pay the thousand dollars or so and have no protection against the party manufacturing a duplicate of it. Therefore, not only for that reason, but for the other reasons which I shall briefly mention, the talking machine manufacturers should be entitled to register the particular records which they prepare, and that, therefore, should be included in the act.

The bill evidently is intended to cover talking-machine records, although it is somewhat doubtfully expressed.

Section 4 is the section upon which everything more or less hangs, and that is [reading]:

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

That is all that it says in that regard. The purport, however, is to cover substantially everything that was covered by the former copyright act. In section 18 the different things copyrighted are specified, in which section the duration of the terms are provided. Section 18 states, for instance:

For twenty-eight years after the date of first publication in the case of any print or label relating to articles of manufacture.

Then comes a proviso, and then:

(b) For fifty years after the date of first publication in the case of any composite or collective work; any work copyrighted by a corporate body or by the employer of the author or authors; any abridgment, compilation, dramatization, or translation; any posthumous work; any arrangement or reproduction in some new form of a musical composition; any photograph; any reproduction of a work of art.

I would suggest that you include in there, on line 14 of page 14, after the word "composition," the words "any talking-machine record;" so that there would be no room for doubt but what talking-machine records are intended to be included.

For this purpose I would also amend section 5 (p. 4, lines 2 and 3) by adding between lines 2 and 3, before the word "Phonographs," the following: "(j) Talking-machine records."

I want to say one more word in that regard: The talking-machine record is a new art. At the time that the former acts were passed and the Revised Statutes it had not acquired the state of perfection in which it is to-day. The talking machine is a writing upon a record tablet--not to be read visually, but audibly to be read through the medium of a vibrating pencil engaging in the record groove. This reproduces the thing that is uttered, in the characteristic manner in which it is uttered, and therefore that particular thing ought to be the subject-matter of a property right.

For instance, we might say that a particular piece would be sung or played by some country brass band, such as Mr. Sousa alludes to. The instrumentation there of that particular piece as recorded would be as different from the instrumentation of the particular piece when played by Mr. Sousa himself, from the stage of one of the great opera houses, as could be imagined; and what should be protected there is the particular instrumentation as it is played by Mr. Sousa, as he has rendered it. The same thing applies to any orator, or any actor, or any recitationist. It is a picture of the voice, as perfectly as a photograph is the picture of a man, or of a thing; and all the personality and all the characteristics of speech of the man uttering it are there recorded.

Mr. BONYNGE. Do you mean that if that lecturer delivers the lecture to one of the talking machines that you should take a copyright upon that disk, or whatever it is, that record, I suppose is what you call it, so as to prevent him from giving another reproduction of the same lecture to another talking machine?

Mr. PETTIT. No, sir. That would be his right. His lecture is copyrightable. He has a perfect right to copyright that in the ordinary manner, and he has the further right, if he pleases, to have it copyrighted through the means of a talking-machine record, or, with his permission, we could do so. But wherever the thing is primarily copyrighted we could not use it in any sense without his permission.

Mr. BONYNGE. Yes; but after he has copyrighted it and you have got his permission to use it in your particular talking machine and have paid him whatever you may have agreed to pay him as compensation for the use of it, would you seek to prohibit him from giving that same lecture to another talking machine?

Mr. PETTIT. That would depend entirely on the terms of the contract; but that is not the idea at all. It is merely the means of recording a voice, the production of a particular man or band, or instrumentation, with all the characteristics of that particular voice or instrumentation, which we think should be subject to copyright.

Mr. CHANEY. Do you not think, then, if you want that sort of an amendment to section 18 that you should also amend section 4?

Mr. PETTIT. No, sir; I do not think that is necessary.

Mr. CHANEY. You think that includes it?

Mr. PETTIT. I think section 4 is broad enough to include it. You will understand that section 4 is understood to include a photograph. It is understood to include everything which is the subject-matter of copyright.

Mr. CHANEY. I was just about to ask this: Understanding that this talking machine is a new arrangement, and was invented later than the date of the original copyright law, by that very fact it might be necessary to mention it in section 4.

Mr. PETTIT. Well, I assumed that the word "author," as used by the Librarian of Congress in presenting the bill, was sufficiently broad to include anything which was originated of that character: and, as interpreted by the courts, for instance in the Sarony case (111 U. S. Repts., 59), it has been decided that the word "writing" was broad enough to include a photograph, and that therefore it would not be necessary to amend section 4, provided section 18 had specifically in it the words "talking-machine record," showing that it was meant to be included. Of course I should not object to including it. I should not object at all to having section 4 amended for that purpose, but I doubt whether it would be necessary under the circumstances.

Mr. CHANEY. You would be satisfied without its amendment?

Mr. PETTIT. I think so, provided the talking-machine record was inserted in sections 5 and 18.