Title: Arguments before the Committee on Patents of the House of Representatives, on H. R. 11943, to Amend Title 60, Chapter 3, of the Revised Statutes of the United States Relating to Copyrights - May 2, 1906.
Author: United States. Congress. House. Committee on Patents
Language: English
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ARGUMENTS BEFORE THE COMMITTEE ON PATENTS
OF THE
HOUSE OF REPRESENTATIVES
ON
H. R. 11943,

TO AMEND TITLE 60, CHAPTER 3, OF THE REVISED
STATUTES OF THE UNITED STATES RELATING TO COPYRIGHTS.

MAY 2, 1906.

COMMITTEE ON PATENTS, HOUSE OF REPRESENTATIVES,
FIFTY-NINTH CONGRESS.

  FRANK D. CURRIER, NEW HAMPSHIRE, _Chairman_.

  SOLOMON R. DRESSER, PENNSYLVANIA.
  JOSEPH M. DIXON, MONTANA.
  EDWARD H. HINSHAW, NEBRASKA.
  ROBERT W. BONYNGE, COLORADO.
  WILLIAM W. CAMPBELL, OHIO.
  ANDREW J. BARCHFELD, PENNSYLVANIA.
  JOHN C. CHANEY, INDIANA.
  CHARLES McGAVIN, ILLINOIS.
  WILLIAM SULZER, NEW YORK.
  GEORGE S. LEGARE, SOUTH CAROLINA.
  EDWIN Y. WEBB, NORTH CAROLINA.
  ROBERT G. SOUTHALL, VIRGINIA.
  JOHN GILL, JR., MARYLAND.

  EDWARD A. BARNEY, _Clerk_.

WASHINGTON:
GOVERNMENT PRINTING OFFICE.
1906.



ARGUMENT (CONTINUED) ON H. R. 11943, TO AMEND TITLE 60, CHAPTER 3, OF
REVISED STATUTES OF THE UNITED STATES, RELATING TO COPYRIGHTS.


  COMMITTEE ON PATENTS,
  HOUSE OF REPRESENTATIVES,
  _Washington, D.C., May 3, 1906_.

The committee met at 11 o'clock a.m., Hon. Frank D. Currier (chairman)
in the chair.

The CHAIRMAN. I have received a telegram regarding the bill now before
the committee from John Philip Sousa, which reads as follows:

    NORTHAMPTON, MASS., _May 3, 1906_.

    _The Chairman and Members of Congress_,

    _Committee on Patents, Washington, D.C._:

    Earnestly request that the American composer receives full and
    adequate protection for the product of his brain; any legislation
    that does not give him absolute control of that he creates is a
    return to the usurpation of might and a check on the intellectual
    development of our country.

    JOHN PHILIP SOUSA.


STATEMENT OF MR. A. R. SERVEN, ATTORNEY FOR THE MUSIC PUBLISHERS'
ASSOCIATION--Continued.

Mr. SERVEN. Mr. Chairman and gentlemen of the committee, during the
last hundred years and more the inventors of the country have been
liberally dealt with by the lawmakers, and the result is to-day no
country in the world stands higher in everything in the line of
mechanical and industrial development than the United States does, and
I think you gentlemen who have this matter of patents in charge may
justly take pride in yourselves that your committee in the past has
done such magnificent work for the wealth, the prosperity, and the
reputation, and the ability of the United States at home and abroad. It
is conceded, I think, to-day all over the world that the American
inventor is the most industrious, the most ingenious, and is the most
valuable part of the real wealth of the United States, and that is so
because from the very start the laws have been most liberal to protect
the American inventor for every bit of the right of property which he
could possibly have in anything that is the creation of his brain and
his genius.

Now, unfortunately, as I remarked yesterday, the record is not just
that way in regard to the musical inventors--if I may use that term--of
the United States, and that, and that alone, is the reason why we have
to-day almost no names of composers that have a world-wide reputation.
Perhaps the sender of the telegram we have just heard read is as well
known in other countries as any composer we have; possibly his music
has been heard by more people than the music of any other composer of
the United States; and yet the musical critics all over the world say
America has no national music because she has no national composers. It
is true that there is not in existence to-day, perhaps, a single
ambitious musical drama that can claim popularity and reputation that
may be expected to be handed down as one of the musical classics that
had as its composer a citizen of the United States. I am informed by
these musical gentlemen that probably the greatest composer we ever had
was compelled, in order to surround himself with the necessities which
he required to prosecute his musical work, to leave the United States
and take up his residence in Europe, where he continued to live, I
believe, to his death. I think that Mr. Furness, who is much better
informed than I--and possibly in the opinion of the Musical Publishers'
Association, anyway, he is the one man of all those in the United
States who knows most about these things--would like to tell you
something about this composer this morning, because it is a unique part
of the national history, and not by any means a creditable one.

Mr. WEBB. Who was it?

Mr. FURNESS. McDowell.

Mr. SERVEN. The reason that the composer has not gone hand in hand with
the literary man and with the inventor, who produce their works from
the brain, is because thus far our country has not been so ready to
concede to them the right of absolute use and control of their works.
The inventor has the right to say just who shall produce his invention,
just what it shall be sold for, if he wants to limit it as to that, and
just who shall buy it, even, if he wants to go as far as that.

Mr. DRESSER. I doubt that.

The CHAIRMAN. An idea has just occurred to me. I understood you to say
yesterday that this movement to enforce the law arose from the fact
that men like Mr. Tams had gone into the renting or lending of musical
works as a business.

Mr. FURNESS. I would like to treat of that later.

The CHAIRMAN. And that that was the feature which you wished to reach.
Suppose this committee should amend this law so as to provide that the
renting or lending of these books should be confined to the societies,
as we indicated yesterday, that give charitable performances without
profit, so that they could only borrow from other similar societies.

Mr. FURNESS. Mr. Chairman, if you will allow me, I would like to speak
of that a little later.

The CHAIRMAN. That would entirely wipe out the evil which you suggested
to the committee yesterday.

Mr. FURNESS. I doubt whether there is any great number of those people
in the United States. You take choirs and churches. Of course churches
are not in commercial line of business; they have no means of earning
money except by general subscription by members or sale of the seats,
and there are a very few cases where the Sunday school wishes to give
an entertainment for charity. Those compositions are very inexpensive.

Mr. Tams yesterday tried to make you believe that some of them cost $2
apiece. That is not true. The short cantatas and little operettas run
from $4 a hundred to 35 cents apiece, and in very few cases higher than
40 cents. In regard to the renting, we have made provision for that in
the new copyright draft that is being framed, the publisher or author
or owner of the copyright, whoever he is, should have the right to make
such loan, but that it should not be done through what we term the
scalper.

The CHAIRMAN. Do you think the publishers would greatly object if the
lending of these books was confined to a religious or school society,
and the loan was made to a similar society for charitable performances?

Mr. FURNESS. We have in Massachusetts, in Worcester, a musical society
that gives an entertainment each spring, called the May Festival.

Mr. SERVEN. Do they charge an admission?

Mr. FURNESS. They charge an admission, and they get the best talent
they can procure. They have a few hundred books, and many times they
loan them out to other societies for similar entertainments, to
societies that are not so poor but what they could afford to buy them.
That is one of the great evils that is interfering with the business of
the music publishers.

Mr. GILL. Do the singers and musicians give their services free?

Mr. FURNESS. No; they do not. They are well paid. They have Caruso and
Sembrich and others of that class.

Mr. SERVEN. There may be a single song or instrumental piece which, of
course, can be produced on three or four pages and sold separately; but
anything other than something like that in the line of a musical
composition is simply valuable to the producer of it because of the
fact that it is going to be performed, and it is written especially for
that purpose, just as the dramatic compositions are written solely for
the purpose of performance, and not for the purpose of their literary
merit or as a matter of reading. And for that reason the performance of
the extended musical composition is exactly the same as the performance
of the dramatic composition.

And, to follow the comparison with the patent, in the same way that the
manufacture of the patent is to the right that is granted under the
patent so is this performance to the right that is granted under the
copyright, and the proceeds of the production are directly proportional
to the performance of the production. There is, to be sure, a limited
amount of private sales to persons who, for instance, find some one
little theme in a composition and like to have it in their homes and
occasionally sing it in their homes and possibly somewhere else, but I
should think it would be safe to say that not less than 90 per cent of
all the sales of oratorios or operettas or cantatas--I am speaking both
of religious and secular musical works--are either directly or
indirectly solely for the purpose of public performance and connected
with public performance.

The CHAIRMAN. But one of these societies that bought the books for the
purpose of giving a performance would only loan it to some society near
by.

Mr. SERVEN. Unless, as they sometimes do, they would send from
Worcester to California for something. It is easy to do those things,
and they do it, or have done it.

The CHAIRMAN. There might be persons in a society in California that
had friends belonging to a similar society in Massachusetts, and in
such cases there might be some correspondence and exchange, but that
would rarely happen, I should say.

Mr. SERVEN. They are in correspondence all over the country--the
different societies. For instance, there is a Cincinnati society that
has an annual festival there, and it carries on a correspondence with
similar societies throughout the country.

Mr. WEBB. Your idea is that nobody but a person who buys a piece of
copyright music should have a right to perform it publicly?

Mr. SERVEN. That is what is doing to-day. The person that buys it has
the right of public performance.

Mr. CHANEY. Carrying out the analogy with patents, what would you say
about the right of a man who buys a patent to dispose of it in any way
he pleases?

Mr. SERVEN. He buys the patent right.

Mr. CHANEY. He buys a machine, for instance.

Mr. SERVEN. The object that is patented under the patent?

Mr. CHANEY. Yes; take a reaper or a mower or a trashing machine.

Mr. SERVEN. In a case of that kind it seems to me that the owner of the
patent, if he likes, can do just as he pleases, and as a matter of fact
in very many instances they sell the right to manufacture for certain
districts----

Mr. CHANEY. Exclusive of manufacturing, I mean.

Mr. SERVEN. I will follow it from the manufacturer. I remember in my
own county--my native county--that a certain variety of fence that was
patented, in which case rights were sold in every township, not only to
manufacture, but also to sell to other residents of that town the use
of that particular kind of fence, whether it was manufactured by the
fellow who bought the use, or whether it was manufactured by the fellow
who had a license for that town, and nobody else who did not get that
from the original patent-right owner, or the licensee under him, could
build that fence, and I remember that there were several farmers who
liked the fence but who didn't like to pay the price, and they
attempted to build it, and they were hauled up in the courts, and my
remembrance is that it cost them $1,500 or $1,800 altogether to settle
for a little strip of fence that was not worth more than $50.

Mr. DRESSER. I don't believe a court would ordinarily give such a
judgment as that in such a case.

Mr. CHANEY. Suppose you limit it as to a machine, without any statement
as to his rights further than there is a machine for his use. Now, has
he not the right that he can dispose of that machine to anybody he
chooses?

Mr. SERVEN. Undoubtedly, because the law provides expressly that thing
now.

Mr. CHANEY. Now, then, what difference would there be----

Mr. SERVEN. The law provides expressly the opposite in regard to the
public performance of the musical composition, and under that old
principle let the buyer look out! He is supposed to know what the law
is.

Mr. CHANEY. That being so, ought not a man who buys a musical
composition to have the right to do just as he pleases with it, the
same as a man who purchases a mowing machine? For instance, I sing some
myself. If I buy a piece of music ought I not to have a right to do
what I please with it?

Mr. SERVEN. Certainly, if your contract covers that.

Mr. CHANEY. But suppose it does not.

Mr. SERVEN. There must be an express or implied contract as to what he
is buying.

Mr. CHANEY. He buys the machine.

Mr. BONYNGE. I do not understand that he has not the same right if he
buys a piece of music he can do what he wants to with it; but the other
question is in regard to the public performance.

Mr. SERVEN. For profit; yes.

Mr. CHANEY. In the case of a musical composition, he buys it for the
purpose of public performance.

Mr. SERVEN. Not necessarily.

Mr. CHANEY. For instance, take a Sunday-school book----

Mr. FURNESS. It does not cover that at all.

The CHAIRMAN. You state that this law refers to the use of these books
for a public performance for profit. I do not understand the law that
way.

Mr. CHANEY. I do not, either.

The CHAIRMAN. The committee has suggested yesterday and to-day an
amendment which would put the law as you state it, and you object to
that.

Mr. SERVEN. For this reason: It is proposed to make certain exceptions,
to allow privileges to certain beneficiaries under this law, which
would really defeat the law, because that sort of a proposition is
solely for financial profit, the sort of entertainment that is referred
to. Upon investigation it will be found that nearly every entertainment
of the kind referred to is really for profit; that instead of lending
or renting for a charitable enterprise pure and simple, it will be
found that it is a money-making enterprise; there is hardly an
exception. You will find that such an entertainment is not a social
affair. It is not that sort of a thing. It is an institution solely
devised as an expedient to raise money for certain specific purposes,
whatever they may be. Now, if we simply give, as, for instance, for the
benefit of the occupants of a hospital, or something of that kind,
where there is no charge or anything of that sort, we give simply for
the entertainment of a company of gentlemen and ladies, where the
public is not shut out unless they had the price, then I am sure these
gentlemen would not have the slightest objection to it whatever; in
fact, they like to encourage that sort of thing, and they even lend
their music for such purposes.

Mr. CHANEY. But you want the power of doing that lending yourselves?

Mr. SERVEN. Yes; if our music is gone, we like to do the lending.

Mr. CHANEY. Suppose I buy this composition [holding up musical
composition]: haven't I a right to sing it, and have not my friends a
right to sing it at my expense?

Mr. SERVEN. You have, so far as any private performance is concerned.

Mr. CHANEY. Well, in public?

Mr. SERVEN. I don't think so.

Mr. CHANEY. Ought I not to have that right?

Mr. SERVEN. That depends on what the contract is when you buy it.

Mr. FURNESS. You could not sing that yourself [referring to musical
composition]; that requires more than one voice.

Mr. GILL. How was the use of that restricted when it was purchased?

Mr. FURNESS. The law says that if he does that willfully, or for
profit--I think the words "for profit" are in the statute--that he is
guilty of a misdemeanor, and, upon conviction, is subject to
imprisonment not less than a year, I think, the same as for the
dramatic public performance; it is the same remedy for both.

Mr. GILL. You sell that without any restriction?

Mr. SERVEN. Without any notice of restriction.

Mr. GILL. Without any restriction?

Mr. SERVEN. No.

Mr. GILL. Is it not a matter of fact that you make the sale without any
contract? I concede that if you make a contract of course you can
restrict its use, the same as you can make a contract for the use of a
patent; you can give the whole use of a patent or limit it to a town or
a county, or you may restrict the patent as to whom it shall be sold,
or in any way you please, and I admit that you could restrict this; but
I ask, as a matter of fact, what are the contracts? It is a matter of
contract?

Mr. SERVEN. It is solely a matter of contract.

Mr. GILL. You sell it without any contract.

Mr. SERVEN. No----

Mr. GILL. Does not that, then, give the man a property right which he
can use as he pleases--where you have made no restrictions whatever?

Mr. SERVEN. We have done everything the law says we shall do in order
to put this matter under the protection of 4966.

Mr. GILL. Have the courts interpreted this in any way?

Mr. SERVEN. This penalty clause of it?

Mr. GILL. Has this been brought up?

Mr. SERVEN. This penalty clause has not been interpreted, for this
reason: That so far as the music publishers are concerned, probably the
same as the dramatic producers, they have not endeavored to press the
penal provisions; they have felt that if the provision was in the law
it was a warning to the man who was attempting to violate that
provision, and that the moral effect, possibly, of such a paragraph
ought to pretty largely protect their interests; yet they have a number
of times considered that question, and I am not at all sure but what
some day they may reach the conclusion that they would like to have the
court pass upon the question whether Mr. Tams is violating the law.

Mr. GILL. But there is no practical notice or warning to a person who
goes into a music store and buys that, because there is nothing on the
book you sell that indicates that there is any limitation or
restriction in regard to its use by the purchaser?

Mr. FURNESS. The only way that has been brought before us publishers is
this: That when they have asked for a public performance, or probably
to rent the orchestral part, then we have asked them, "Have you got the
score yet?" They may reply, "Yes; we have rented the score," from such
and such a man. Then we refuse to give them permission to render the
public performance; we say to them, "You must buy the books from the
publishers--the owner of the copyright or his authorized agent, the
music dealer." So far as an individual goes, and so far as a society
goes, we have never brought any suit at all, and the only suit that has
been brought on a question of this kind emanates from Mr. Tams, who
brings a suit for $200,000 against the music publishers for trying to
restrain him from renting these books for public performances.

The CHAIRMAN. The committee does not get a clear idea of what the law
is from your statement of it. My understanding of that law is this:
That so far as the civil remedy is concerned it makes no difference at
all whether the performance is given for profit or not. You can sue
them and recover damages, no matter whether it is given for profit or
not; but it must be given for profit in order to subject them to the
criminal remedies.

Mr. SERVEN. Yes; that is it, willfully and for profit.

The CHAIRMAN. So far as the civil remedy is concerned, it makes no
difference.

Mr. BONYNGE. As far as I understand, there has been no prosecution
under the penal clause.

Mr. SERVEN. So far there has not; no.

Mr. BONYNGE. And the only use of the penal clause so far has been that
it has been a sort of a club to enforce damages.

Mr. SERVEN. No; no action has been taken under that; it has simply been
held there, and we have sent broadcast such notices as this which you
have in your record, notice to people who were in the habit of
violating that section, telling them that we might at some time be
compelled to proceed under that section.

Mr. CHANEY. That is, you have threatened them with that penalty.

Mr. SERVEN. If that is the proper word; we have given them specific
notice that there is a law and that they have been violating it, and
that we do not want them to violate it.

Mr. BONYNGE. As a matter of good legislation, do you think we ought to
have a criminal procedure of that kind where the ordinary person would
not conceive that he was guilty of a crime?

Mr. SERVEN. The ordinary person, who is not a musician, who does not
play in any musical society, would not pick that up; but not one person
in a million is attempting to perform such a production without
associating with himself many persons who are familiar with the law.

Mr. BONYNGE. My friend Mr. Chaney says he is a singer. Until this
matter was called to his attention it is not at all unlikely that he
would rent such a book and sing it, together with other singers, at an
entertainment given for charity, and according to this he would be
guilty of a crime.

Mr. SERVEN. I doubt it, unless he had attempted to form a company for
the purpose of performing it.

Mr. CHANEY. Of course you would have to get the singers together.

Mr. SERVEN. You would have to do more than that; you would have to do
the same thing that is done with a dramatic composition, and the remedy
is the same in this case for a musical drama that it is for a tragedy
or any other drama; the condition is the same, the remedy is the same,
and if it is a wrong to the dramatist in one case it is a wrong to the
music publisher in the other.

Mr. CHANEY. You take a church organization that seeks to raise money,
for instance, to buy a pipe organ; they send to Mr. Tams or somebody
who has these books, and they tell him how many they would like to get,
and ask him how much he will charge for them, and it may be that
sometimes they could get them for just the expense of the express
charges and the payment for any damage or for any books destroyed. They
go ahead and produce that musical operetta. Now, they have committed a
crime?

Mr. SERVEN. No; because before that they have to have somebody who is a
musical director, who knows about it.

Mr. CHANEY. That goes with the performance----

Mr. SERVEN. There is not such a person as that in the United States, I
assume, that does not know just exactly what the provisions of law are.

Mr. BONYNGE. But he is not the only person who would be guilty of the
crime. Those in the chorus would be guilty of the crime.

Mr. SERVEN. But here is the point----

Mr. CHANEY. The person who proposes to organize such an oratorio
usually proposes it to the church.

Mr. SERVEN. As a matter of fact, I have been informed that Mr. Tams is
the principal gentleman in the United States who is doing that sort of
thing, to persuade people to violate this statute. Why? Because it is
to his profit. At least we assume it is, because, according to his
ratings, and so forth, we understand he has made a large amount of
money in this particular business. In fact, it has been suggested that
Mr. Tams's financial standing compares very favorably with some of
these musical composers we have heard about.

The CHAIRMAN. I want to put into the record at this point this notice.

Mr. TINDALE. May I correct a typographical error?

The CHAIRMAN. No; read it just as it is.

Mr. TINDALE. (reading from the first page of a musical composition):

    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.

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._


  Albright Music Company, Chicago, Ill.
  Anthony Brothers, Fall River, Mass.
  Ascher, Emil. 24 East Twenty-first street, New York.
  Biglow & Main Company. 135 Fifth avenue, New York.
  Bloom, Sol., Forty-second street and Broadway, New York.
  Boosey & Co., 9 East Seventeenth street, New York.
  Bouvier, A. J., Fall River, Mass.
  Chandler-Held Company, 439 Fulton street, Brooklyn, N.Y.
  Ditson, Chas. H., & Co., 867 Broadway, New York.
  Ditson, J. E., & Co., Philadelphia, Pa.
  Ditson, Oliver, Company, Boston, Mass.
  Ellis, Jno. F., & Co., Washington, D.C.
  Feist, Leo, 134 West Thirty-seventh street, New York.
  Fischer, Carl, 6 Fourth avenue, New York.
  Fischer. J., & Bro., 7 Bible House, New York.
  Frain Publishing Company, 20 West Fifteenth street, New York.
  Francis, Day & Hunter, New York.
  Goggan, Thos., & Bro., Galveston, Tex.
  Gordon, H. S., 1241 Broadway, New York.
  Groene, J. C., & Co., Cincinnati, Ohio.
  Hald, J. R., Company, 337 Wabash avenue, Chicago, Ill.
  Harms, T. B., Company, 126 West Forty-fourth street, New York.
  Harris, Chas. K., 31 West Thirty-first street, New York.
  Haviland, F. B., Publishing Company, 125 West Thirty-seventh street,
    New York.
  Jacobs, Walter, 165 Tremont street, Boston, Mass.
  Lyon & Healey, 199 Wabash avenue, Chicago, Ill.
  Mills, F. A., 48 West Twenty-ninth street, New York.
  Molineux, Geo., 150 Fifth avenue, New York.
  Movello, Ewer, & Co., 21 East Seventeenth street, New York.
  Parks, J. A., Company, York, Nebr.
  Paull, E. T., Music Company, 46 West Twenty-eighth street, New York.
  Remick, J. H., & Co., 45 West Twenty-eighth street, New York.
  Rohlfing Sons Music Company, Milwaukee, Wis.
  Schmidt, Arthur P., 146 Boylston street, Boston, Mass.
  Schuberth, E., & Co., 11 East Twenty-second street, New York.
  Sherman, Clay & Co., San Francisco, Cal.
  Stern, J. W., & Co., 34 East Twenty-first street, New York.
  Summy Company, Clayton F., Chicago, Ill.
  Swisher, M. D., 115 South Tenth street, Philadelphia, Pa.
  Thiebes-Stierlin Music Company, St. Louis, Mo.
  Thompson, C. W., & Co., 13 West street, Boston, Mass.
  Thompson Music Company, 269 Wabash avenue, Chicago, Ill.
  Vandersloot Music Company, Williamsport, Pa.
  Victor-Kremer Company, Chicago, Ill.
  White-Smith Music Publishing Company, Boston, Mass.
  White-Smith Music Publishing Company, Chicago, Ill.
  White-Smith Music Publishing Company, 13 East Seventeenth street,
    New York.
  Witmark, M., & Sons, 144 West Thirty-seventh street, New York.
  Witzmann, E., & Co., Memphis, Tenn.
  Wood Music Company, The B. F., Boston, Mass.
  York Music Company (A. Von Tilzer, manager), New York.





*** End of this LibraryBlog Digital Book "Arguments before the Committee on Patents of the House of Representatives, on H. R. 11943, to Amend Title 60, Chapter 3, of the Revised Statutes of the United States Relating to Copyrights - May 2, 1906." ***

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