Part 2

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].

STATEMENT OF MR. HERMAN FROEMNE.

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.