Part 3
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.
PROPERTY RIGHTS OF COMPOSERS.
The laws of the United States have recognized two distinct property rights in a musical composition that has been copyrighted.
1. The copyright proprietor has the exclusive right to reproduce copies of the original work. This he may assign in toto or with any limitations he may choose to impose on such assignment.
2. The copyright proprietor has the exclusive right of public performance of the copyrighted work. This right also may be assigned in part or in toto.
The United States has adopted these provisions from the English copyright laws, as have most of the other Christian nations. Under English statutes--
"The right to present and perform a dramatic piece or musical composition is a right distinct from the copyright in a book containing or consisting of such dramatic piece or musical composition, and no assignment of the copyright of any such book conveys any right of representation or performance unless so specified; and by the twenty-second section of 5 and 6 Vict., chap. 45, an entry of every such assignment should be made in the registry book." (Copyright Office Bulletin No. 5.)
This is in accordance with the modern idea of copyright protection and seems to be fully justified. For why should the exclusive right of performance be denied to the creator of the work if he is to enjoy any exclusive rights because of his contribution to the knowledge and usefulness of mankind? Under the common law this right certainly belongs to him, and he can be deprived of it only by voluntary or involuntary assignment.
A QUESTION OF CONTRACT.
The whole question presented by the proposed amendment to section 4966 of the Revised Statutes seems to be one rather for the court than for Congress to determine. Either the copyright proprietor has or he has not the exclusive right of public performance. If he has it the next question is, Has he assigned any part of it by the sale of a book or any number of books containing his copyrighted musical conception, unless somewhere he has "so nominated in the bond?" The English law requires that the right of performance must be expressly specified in the contract. This is clearly in exact harmony with the principle of "caveat emptor," under which all other purchases are made in our country and in England.
The proprietor of the musical library, if he desires, may purchase the right of general public performance when be buys his books. If he simply buys the books without specifying that general right, he is getting all his contract calls for and all he has paid for. Our laws do not require that there shall be a notice of express reservation of this right in order to reserve control of it to the copyright proprietor, but some of our publishers have put such notices in their publications, and this association of publishers has recommended that a requirement of such notice be made a part of our copyright law.
NO LEGISLATION NEEDED.
No legislation is needed in this matter unless you intend to deprive the composer or his assignee of the right to control the public performance of his work. Should this be done it will lessen the value of the composer's efforts and of necessity restrict the production of important musical works because of less encouragement to the composer, and consequently restrict the business of all the trades now employed in supplying it to the public.
The 6,000 retailers of music, as well as the composers and the 500 publishers of musical works in our land, are vitally interested in whatever tends to deprive them of their occupation and its compensation. In the face of what all other enlightened nations are doing to protect, encourage, and reward the genius of their countrymen, will the United States take this backward step and thereby begin to discourage the tardy development of its citizens in musical learning and progress?
INTERNATIONAL COPYRIGHT TREATY.
Previous to the international copyright treaty of 1891 few works of American composers were on the market, because the foreign works monopolized the trade. Since then our composers have been on an equality at home with the foreign works, and the rewards have been more equitably distributed to American composers, as our people have spent more of their money at home for music.
The result is seen in the schools and colleges of music in America, more eminent teachers, and much better training for our students, who can now obtain at home the same grade of instruction they formerly received in European conservatories.
VALUE TO THE UNITED STATES.
All of this has been of great value to us as a nation, not only in the highest sense, but from the purely selfish view of financial profit. Therefore our composers should be considered and protected in their compensation, which comes solely from the sale of their works under the prevailing methods of trade. When a work is rendered many times from one purchase of books there is but small return to the creator of it; consequently for this privilege a higher price should be demanded than if the book is purchased for home use or for a few performances.
DAMAGES THREATENED BY BILL.
While each work costs the same labor and expense to prepare for publishing, yet it is admitted that not more than from two to three out of each one hundred are successful, and not more than one in twenty of them ever pay for the cost of printing. When limited first editions cost from $5,000 to $15,000 to bring out, it can readily be seen why the publishers are so active in trying to protect their clients, the composers, and their own interests, so covertly threatened by this bill. If this bill becomes a law they will be obliged to adjust their business to the change, and no doubt the better composers will be driven to adopt the methods of the dramatists and deny all use of their works to the public at large.
Shakespeare says, "The man that hath no music in himself is fit for treason, stratagems, and spoils." The love of music has from the dark ages been the inspiration for all progressive peoples. It is earnestly hoped that your committee will not lend itself for the advancement of any measure which is not primarily designed to encourage and foster the best ability of the American composer.
Respectfully submitted,
A. R. SERVEN, _Attorney for the Music Publishers' Association of the United States_.
May 8, 1906.
MCGOWAN, SERVEN & MOHUN. _1419 F Street NW., Washington, D.C._
NEW YORK, _May 8, 1906_.
THE CHAIRMAN AND COMMITTEE ON PATENTS, _Washington, D.C._
GENTLEMEN: At the recent hearings on the Bennet bill, the music publishers were represented, and the committee, of course, represented the interests of the people. There was, however, one party at interest in the matter who was not represented. That party is the American composer, and it is in his behalf that we ask you to please consider a few words.
The effect of this amendment would be to put the American composer out of business, so far as the writing of serious or important works is concerned. It would be our saying to him: "You are good enough for writing coon songs and a few rag-time pieces, but we don't want you to attempt anything better. We don't want American composers; we prefer to use what is written in Germany, France, Italy, Russia."
The amendment under consideration seeks to remove the present copyright protection from religious works; and in the hearing which your committee was kind enough to give last week, frequent mention was made of charitable work and entertainments given by churches, poor singing societies, and our poverty-stricken public schools. From certain questions asked by members of the committee it was indicated that they might favor a compromise measure in which, by exception, the renting of copyrighted musical works would be legalized in the case of entertainments given by religious bodies or not given for profit.
We yield to no one in reverence toward religious matters, and trust that what we shall say will not be misconstrued, but religious bodies first of all should be and are noted for dealing justly with all men. They have taught us that "the laborer is worthy of his hire;" and next to observance of divine laws they advocate obedience and respect to human laws. It would seem, therefore, that churches do not need nor do they ask for anyone to exploit his own business under the guise of obtaining for the church the right to do what it is unlawful for others to do.
In seeking to give this exemption to churches, societies, etc., a serious matter is that we entirely forget and lose sight of the musical composer or author, who, in most cases, is not a rich man. It is about the composer that we wish to say a few words. To illustrate what we should like to say, we ask you, Mr. Chairman and the committee, to picture the fact that a certain church or society has prepared to publicly perform on a certain date a work of average size, costing, say, 40 cents each copy. The average number of copies required for such performance is about 30 copies, making a total outlay of $12, of which $1.80 accrues to the composer as royalty for the performing rights.
Instead of buying the music, we find that for economy the church has been persuaded to hire or to borrow copies that have been used elsewhere. Imagine the large and well-dressed audience assembled on the night of the performance. Listen to the delicate arias, the grand choruses, the pealing organ, and notice the swelling enthusiasm of the people during some of the climaxes. Picture this brilliant and enjoyable scene, but let us also not forget the one man whose brain and heart created this music and made the entertainment possible. The pittance of $1.80 which he would receive is all too small; but such as it is, it should not be taken from him. When copies of the music are rented or borrowed and not bought, all the composer gets is glory and applause. Now, glory is all well enough, and applause to most men is sweet. But we wish to say to you, gentlemen, that glory alone will not put a coat on that man's back; it will not help him to protect his wife; nor will glory alone clothe and feed his children.
Furthermore, and in closing, in giving the above supposed entertainment a fair admission price has been charged, or in lieu of a fixed admission the plate has been passed; and few of us would care to listen to the music and neglect the opportunity to contribute. So that we may say that there is practically no such thing as performances of this kind without a revenue. In giving such an entertainment everything else is paid for. The light and heat are paid for, programmes are paid for, parties from whom the books are rented are paid, the organist--even the sexton is paid--but not the composer. We, the signers of this paper, do not believe that American churches are so poor, or American societies ever so needy as to make this injustice necessary; and it is hoped that your committee in protecting the American people will also at the same time not forget fair play toward the American composer.
VICTOR HERBERT, _Composer_. REGINALD DEKOVEN, _Composer_. BRONSON HOWARD, _Author and Playwright_. HARRY ROWE SHELLEY, _Composer and Organist_.
_Constitution and by-laws of the Music Publishers' Association of the United States._
CONSTITUTION.
ARTICLE I. This organization shall be known as the Music Publishers' Association of the United States, and shall have for its object the uniting of the music publishers of the United States for their own interest and the general welfare of the music trade.
ART. II. The officers of this association shall consist of a president, vice-president, secretary, and treasurer, and an executive committee consisting of five members, who shall be elected at each annual meeting, to serve one year from the date of their election, or until their successors are elected; and the president and secretary shall be members of the executive committee ex officio.
ART. III. There shall be an annual meeting of the association, for the election of officers and the executive committee and the transaction of business, on the second Tuesday of each month of June, at such place as may be determined upon. All elections shall be by ballot, and the votes of a majority of the members present shall constitute a choice.
ART. IV. Each member, whether an individual or firm, shall be entitled to one vote, and ten members shall constitute a quorum for the transaction of business.
ART. V. This constitution may be altered or amended by a two-thirds vote of the members present.
BY-LAWS.
ARTICLE I. The president, and in his absence the vice-president, or in the absence of both a chairman selected by a majority of those present, shall preside at all meetings of the association.
ART. II. The secretary shall keep a record of the proceedings of every meeting, give necessary notices of meetings, receive all moneys and pay the same over to the treasurer and take his receipt therefor, and perform such other duties as pertain to his office.
ART. III. The treasurer shall take charge of the funds of the association and disburse the same by order of the association signed by the president, and shall make a report of his receipts and disbursements at the annual meeting subsequent to his election.
ART. IV. The executive committee shall transact all necessary business in the interval between the annual meetings of the association.
ART. V. Any music publisher or firm of music publishers in good standing in the United States is eligible to membership, and may become a member by making application through the secretary, upon payment of $10 and receiving a majority of votes of those present at the annual meeting. The executive committee shall have the power to admit members during the period intervening between the annual meetings, subject to the approval of the association at its next annual meeting.
ART. VI. The regular dues of this association shall be $10 annually, payable on or before November 1 of each year, and no member in arrears shall be entitled to vote or participate in the meetings.
_Members Music Publishers' Association, June, 1905 to 1906._