To the Senate and House Committees on Patents:Pursuant to the permission granted me at the conclusion of the few minutes' oral hearing with which I was favored before the joint meeting of your committees, I beg to submit herewith a brief and suggestions with respect to the amendments to Senate bill 6330 and House bill 19853, deemed proper and necessary in order to make the act contained in said bills properly protective of the rights and conservative of the interests arising out of and connected with the industries of automatic musical instruments and controlling devices—perforated rolls, talking-machine disks, and phonograph cylinders—for the same.All of which is respectfully submitted.The following facts should be taken into consideration in making any amendment to the copyright law affecting automatic reproducing devices as well as perforated rolls for reproducing music, talking-machine disks, and phonograph cylinders for their respective purposes.1. To the modern arts relating to automatic music-playing devices and automatic means for reproducing sound, such as talking machines and graphophones, authors and music composers have contributed not a single iota.These arts have been the result of the combined efforts of thousands of scientific, industrious, and artistic inventors. These inventors and the manufacturers cooperating with them by their capital and business skill and enterprise have created these entire arts and to them is due the entire benefit which the public has derived and is deriving from these arts.2. Musical composers and song writers, notwithstanding their entire lack of participation in the creation and development of these arts, have derived already and are still deriving large pecuniary benefit from them.This is most clearly provable in respect to musical compositions. For any musical composition which has been largely reproduced by automatic players employing perforated roll controllers a largely increased demand immediately arises. The sale of the ordinary staff notation of any such composition experiences a notable stimulus immediately upon the production and sale of the perforated rolls for producing the composition automatically upon musical instruments.This fact is conclusively established by the record in the suit of Apollov.White-Smith Music Publishing Company, lately determined in the United States circuit court of appeals in the eastern division of the southern district of New York. We are filing herewith a copy of the printed record of the defendant in that suit, having marked the pages[1]containing the testimony upon this point, and also a copy of the brief on behalf of the defendant citing[2]the facts as established by the record upon both sides to the effect that in the face of the testimony by wholesale and retail dealers in sheet music, that the sale of perforated rolls for such music largely and promptly increased the demand for the sheet music, there was offered not one word of testimony to the contrary, although in the control of the complainants and available as witnesses in their behalf—practically as cocomplainants or cobeneficiaries with them in the suit—were included nearly all the large publishers of and dealers in sheet music, whose records of sales would have established the facts one way or the other overwhelmingly, so that the absence of testimony from these sources must be taken as an admission of the fact as testified to by the few publishers who were accessible to the defendants.[1]Schleiffarth, pp. 48-51; McKinley, pp. 97-100; Lutz, pp. 100-101; Jansen, pp. 131-133.[2]Pp. 29-34.We assert, and challenge contradiction, that the experience and observation of the music trade during the past ten years, during which this art has grown from infancy to its present proportions, establishes the proposition, viz, that the sale of perforated rolls and other means for automatically reproducing musical compositions to the ear tends largely to increase the demand for the ordinary staff notation or other published form of the particular compositions which are thus reproduced.3. The making of a perforated roll or equivalent device or appliance for reproducing to the ear a musical composition is not a mere mechanical process nor one involving mere mechanical skill. It is, on the contrary, an artistic process requiring musical taste and ability and affording opportunity for the exercise of the very highest musical taste and ability, conjoined with the most exact and delicate understanding of the mechanical principles and features of the mechanism with which the controller device—perforated roll or the like—is designed to cooperate for reproducing the music to the ear. The art of the "arranger," as he is termed, of a perforated roll brings into exercise an artistic sense and skill of as high a rank as that of the musical composer and requires, in addition thereto, an ability to understand accurately and minutely the intricate mechanism to which the device produced must correspond and with which it must cooperate.In the case of the talking-machine disk and phonograph cylinder, the contribution of the singer and player is even more obvious, as the essential and controlling element in the value of the devices which result and which are the distinct product of the art of the singer and player is a thing apart from the art of the composer.The producer of a perforated roll or of a talking machine disk or phonograph cylinder, therefore, is as much entitled to be considered an "author" in virtue of the production of such roll, disk, or cylinder, entirely apart from and subsequent to the composition of the music as is the painter by virtue of his sensitive appreciation of beauties of form and color in nature and his skill in reproducing them upon the canvas. The landscape painter does not create the nature scene, but he is not the less an artist because he depicts it only, instead of creating it from his imagination. Nor is he less entitled to a copyright upon his painting, because it is a more or less perfect reproduction to the eye of that which existed for the eye before he reproduced it, than if he had evolved the scene from his imagination and then depicted it to the eye by the same skill.The photographer who merely posed his subject is entitled to a copyright upon his photograph. He did not cast the features, nor shape the form, nor arrange the hair, nor devise the costume. He merely posed them all, and chose the position with respect to light and shadow, and adjusted the contrivances for affecting both. This was his art, and the photograph is the result; and it is his photograph for purposes of copyright.The "arranger" of the perforated roll is an artist of as high merit as the photographer, and in some respects of as high merit as the landscape painter.If there is to be secured or conferred upon anyone an exclusive right to the perforated roll, or to the talking-machine disk, or to the phonograph cylinder, for producing to the ear a particular composition, that right, in virtue of authorship, belongs to the arranger of the perforated roll and to the singer or player who produces the talking-machine disk or the phonograph cylinder.That copyright may reasonably be granted to the producers of these devices for the devices themselves seems too obvious for argument, and that it should not be in the power of any composer whose composition is published and on the market to discriminate between different arrangers of perforated rolls or different singers or players, in respect to the right of making such records, respectively, and of selling or renting the same, seems also obvious justice.It would be no injustice, in view of the observed facts above stated—that the composer derives benefit only and never injury from the sale of these automatic devices—that he should have no rights in respect to them, except to be credited with the compositions by having them marked with the title which he has given them for market and with his name as composer. But in view of the possibility that there may be reciprocal advantage—that the name and repute of the music and of its author may contribute to the sale of the reproducing devices—a royalty for the use of the title and name may reasonably be allowed to the composer.But the composer should not be recognized as having any right entitling him to prohibit anyone who desires to do so from making such automatic reproducing devices by employing either the art of the arranger of the perforated roll, or the voice of the singer, or the skill of the player on musical instruments.And the royalty should be uniform for all makers of each sort of device; that is, all makers of perforated rolls for a given composition should pay the same royalty to the composer for the use of his name and the title of his music, and all makers of vocalizing disks or cylinders should likewise pay the same royalty for a given composition.This right to royalty should be allowed, not in virtue of any domination or supposed domination of the original copyright over the act of reproduction, but solely in virtue of the natural right of the composer to have his name and the title which he has given to his music associated therewith, howsoever it is produced, and of the fact that presumably a commercial value attaches to such name and title, which will benefit the seller of the automatic reproducing device.This right of royalty should therefore not run to the proprietor of the original copyright as such, but to the composer as such. If the composer has sold his copyright the purchaser should not, by virtue of that purchase, acquire any interest in the royalty of the composer for the use of his name and the title of his music. Of course the composer could sell this royalty right, and if he chose to sell it with the copyright and to the same person he could do so, but it should not pass without express mention. It should not pass as incident or appertaining to the copyright.Such a provision would be precisely like the provision in the present statute with respect to translations. In the statute it is now provided, not that the copyright includes the right of translation, but that the author whose work has been copyrighted has the exclusive right of translation. He may sell his copyright, but such sale does not divest him of the monopoly of the translation nor vest such monopoly of translation in the assignee of his copyright.Note.—This point is somewhat fully developed in brief of the defendants in White-Smith Music Publishing Companyv.Apollo, copy of which brief is herewith furnished. (See p. 46 to 50, inclusive.) The position above stated and presented in brief, as above noted, was not controverted and was apparently fully conceded as a legal proposition, by counsel for the complainants in that suit. The ultimate propositions supported by the above contention in that suit were contested upon other grounds. Copy of complainants' brief upon this point will be furnished the committee later, with citation to the particular paragraphs sustaining the above statement.Outside of and as an exception to the general class of musical compositions to which the foregoing considerations are pertinent, there is a class more closely related to automatic reproducing devices and in respect to which the composer has a more vital interest, viz:Musical compositions not reproducible to the ear by a single human performer upon any instrument, but which can be produced by means of perforated rolls on an automatic instrument.The staff notations of such compositions have practically no market value, except in case they are arranged in the forms of orchestral scores, so as to be produced by a plurality of instruments simultaneously played by different performers. The number of copies of such orchestral scores which will be required is necessarily very limited, and the sale of such staff notations offers a very limited field from which the composer may derive a just compensation for his work. The only source of revenue to the composer of such works is in the sale of the only means of playing these, viz, the perforated rolls.It may be deemed proper and it will not be denied that it would be just that a composer of a musical composition of this class who causes it to be embodied in the form of perforated roll, and who can derive a revenue from it practically only in this form, should be considered in the light of both composer and arranger, and as entitled to obtain original and independent copyright of the perforated roll, so as to control the composition absolutely in this form.It is believed that it will not be difficult to frame a provision of the statute to do justice to this class of composition, and which shall not trench upon the natural equity of the perforated roll arranger for other musical compositions, or upon the natural right of the public to derive the use of the automatic reproducing devices upon ordinary musical compositions, without requiring the consent of or paying tribute to the composer.4. As to duration of copyright.—The bill before your committees proposes a remarkable extension of the period of copyright beyond anything heretofore granted. This is believed to be contrary to sound public policy and of doubtful constitutionality.The Constitution expressly limits the power of Congress in respect to their copyright protection to granting such protection "for limited periods." The term "limited" can have only a relative meaning, and the obvious meaning is limited with respect to or in comparison with the period during which the public will have desire or use for the copyrighted work. It is contemplated, evidently, that in compensation for the protection which the statute gives the composer for a limited period the public shall derive the unqualified use and benefit of the work for a remaining period. If there is no remaining period, the consideration for the protection has failed.It needs no statistics to establish to the common knowledge of the committee that not one book in ten thousand has any commercial value fifty years after its publication. It will probably be safer to say that not one published work in a hundred thousand has any life after fifty years. If, therefore, the author is given the monopoly for fifty years, the public has nothing left to compensate it for that monopoly and protection.Not one work in a million endures so as to have any value after one hundred years.But the bill proposes, as to the great bulk of copyrightable matter, that the period of copyright shall be substantially one hundred years—fifty years after the death of the author.It is respectfully submitted that this transcends the intention of the constitutional limitation, and that the public would, by such an enactment, be deprived of substantially all the compensation which the Constitution intended should be reserved to it in return for the copyright protection granted the author.Whether the constitutional limitation should or should not be so strictly applied, it seems beyond doubt that sound public policy forbids thus bartering away all the public benefit arising from the free right of publication after the expiration of copyright.There is a second objection to the particular form in which the bill gives this extended copyright term. There does not appear to be any logical relation between the copyright protection and the duration of the life of the author. The privilege or protection granted is in no respect personal, except as to the revenue which may be derived.There does not appear any reason why the work of a mature writer of 60, presumably capable of giving to the public compositions of peculiar value, especially if they relate to scientific or philosophical subjects, should receive less protection from his copyright than would be granted to a youth of 20, whose immature productions would obtain the protection of a presumably long life before him (during which he would often regret his immature publication).Furthermore, the particular form or provision of the bill with respect to joint authors (line 24, p. 14; line 26, p. 15), when corrected to cure the obvious error in the phraseology and express the doubtless intended meaning, opens the way most obviously for practical fraud upon the public. An aged author, by associating with himself in a nominal yet unimpeachably colorable way a youthful assistant, and obtaining copyright in their names as joint authors, will secure protection for his work concurrent with the life of the junior and fifty years thereafter, instead of concurrently with his own nearly ended life and subsequent fifty years.It is obvious that joint authorship will become exceedingly popular if this paragraph of the bill is retained; and by the expedient of triple or quadruple authorship the chances of a long period will be greatly increased.Note.—The very obvious error above indicated—line 24, page 14, line 2, page 15—has probably received the attention of the committee. The sentence supplying the connection from the commencement of section 18 now reads: "That the copyright secured by this act shall endure* * *in the case of joint authors, during their joint lives and for fifty years after the death of the last survivor of them." The gap which is left between the dates of death of the first and last dying of the joint authors is uncovered by the copyright under this form of statement. That is, the copyright would lapse upon the death of the first dying—the end of their joint lives—and revive at the death of the last survivor. The correction is obvious. Make the sentence read: "In the case of joint authors, until the death of the last survivor of them and for fifty years thereafter."It is believed that the present term of copyright should not be disturbed unless to shorten it. Twenty-eight years, with a possible extension of fourteen, exceeds the actual life of a great majority of copyrighted publications and leaves the public nothing for its concession of temporary monopoly to the inventor; but it is, perhaps, a fair average, and at least it has caused no serious complaint upon either hand.An exception should, however, be made in respect to any protection which may be given to anyone, whether composer or arranger, with respect to the automatic reproducing devices—such as perforated rolls—associated so closely, as these devices necessarily are, with manufacture as distinguished from publications and with inventions as distinguished from literary or artistic works. The duration of the patents, whose owners must pay tribute to the holders of any form of copyright upon the perforated rolls, are granted only seventeen years' monopoly in which to derive all compensation for their inventions.The copyright protection, if any, granted in any form upon perforated rolls should not exceed the term of patents—seventeen years.5. Verification of authorship and ownership should be required.—All our copyright laws hitherto have been unaccountably lax in respect to the requirements for making prima facie title to copyright by virtue of authorship or proprietorship. It has only been necessary, and the present bill only makes it necessary, that the applicant for registration under the copyright statute should state, without verification of any sort, that he claims as the author or proprietor, as the case may be. So singularly loose is the requirement that the applicant is not even required to declare that he is the author or proprietor, but only to state that he claims as author.How easily a fraudulently disposed claimant will satisfy his conscience in stating that he claims as the author, when he might hesitate to declare that he is, in fact, the author; and how much more easily one who conceives that he has a shadow of right to ownership will make the like statement that he claims as the proprietor when he would hesitate to declare that in fact he is the proprietor, is obvious without comment.But it is certainly obvious that so vast and important a right as that conferred by the copyright statute should not be vested and given prima facie validity in anyone who has merely the effrontery to declare even that he is the owner or that he is the proprietor.Why should less be required of the claimant to copyright than is required of the claimant to patent right?The applicant for patent must make oath that he believes himself to be the first and original inventor, and his oath must also declare affirmatively the existence of all of the other conditions precedent to his right to obtain a patent. Why should not the author claiming copyright be subject to a similar requirement?The assignee of an inventor desiring a patent to issue to himself must file in the Patent Office an instrument in writing, signed by the inventor, conveying to the assignee the whole or such portion of the interest as it is desired to have appear in the name of the assignee upon the issue of the patent, and must in addition expressly request that the patent so issue to the assignee. Why should less proof be required of one claiming copyright as proprietor?It seems that no argument is necessary to enforce these suggestions. Under the present law and under the proposed bill any publisher obtaining possession of an author's manuscript under any color of right not involving him in larceny by reason of the possession may proceed to put the work in print and make application for copyright, not even averring that he is the proprietor, but stating that he claims as proprietor. The copyright certificate will issue, and his title to the copyright will be prima facie established by the proceedings which he takes pursuant to the statute and the action of the copyright office therein; and the author, who may be ignorant of the proceedings, who may have only entered upon negotiations with the publisher without any intention of accepting the offers which may have been made, finds himself in the position of being obliged to contest a prima facie right on the part of the publisher to the copyright in his work, with the alternative that if the publisher's title is not conceded to be good the author's right is lost by publication.How many authors have succumbed to the embarrassment of just this situation, deliberately created by greedy publishers, will never be known, but it is time that the statute which offers such inducement to greedy human nature to perpetrate frauds of this character should be remedied, and that the prima facie right acquired under copyright statutes should have behind it at least the support of the oath as to authorship and of an instrument of assignment by the author to the party claiming as proprietor.6. Penal provisions.—It is respectfully submitted that the penal provisions of this statute are grossly disproportionate to the offenses or injuries to which they are directed, and obviously provocative of blackmail and coercion, and in some instances clearly unconstitutional and unenforceable. No attempt will be made here to discuss all of these provisions, but attention will be directed only to those which bear upon the particular matter on behalf of which this presentation is made, namely, automatic reproducing devices; and without discussion it is suggested as too obvious for argument that a penalty of $10 for each and every infringing copy of a perforated roll found in the possession of the alleged infringer, his agents or employees, is grossly excessive, in view of the selling price of such rolls, which seldom exceeds $3, and probably averages not far from $1.Severe penalties are only proper where the offense complained of can not be committed by accident or inadvertence, and where there can be no possible mistake as to a given act constituting the offense. In any case in which there might be room for difference of opinion, or where the offense might be committed unwittingly, such penalties are grossly improper.But when the situation is such that the party entitled to complain or who might allege injury by reason of the alleged offense is to be the beneficiary of the penalty, and especially, as in the present bill, is to absorb the entire penalty, it is obviously contrary to reason and good morals to make the penalty materially exceed the damage, because there is thereby created a motive on the part of the person alleging injury to promote and encourage surreptitiously the alleged offense until it has grown to large proportions, so that he may thereby reap a greater benefit from the trespass than he could possibly have reaped otherwise from the property trespassed upon.In the case of the perforated rolls, all these objections to severe penalties are found concurrent, for—(a) There will easily arise wide and honest difference of opinion as to whether two given perforated rolls are infringements, one of the other, and even whether a given perforated roll is an infringement of a particular musical composition (if the bill should be retained in such form as to make the original copyright apply to perforated rolls). It is well known that controversies are constantly arising upon the question of infringement as between two staff notations, the second author often claiming and frequently establishing, contrary to the belief of the first, that his composition was an independent one, both having derived their theme from sources in the public domain.A perforated roll presenting a composition only so similar to a public and copyrighted composition as to raise a question of infringement if it were a staff notation, instead of a perforated roll, will raise the same question as a perforated roll. The copyright owner will reap an advantage, it may be, of 10 per cent, upon the selling price of the sheet music, let us say 15 to 25 cents for every copy sold. He will reap a profit of $10 as a minimum upon every copy which he can find in the possession of the alleged infringer, his agents, or employees. Is there any doubt which remedy he will elect? Is there any doubt that he will await his opportunity for finding a large stock in the hands of the alleged infringer? Is there any doubt that a statute so framed would offer almost irresistible inducement to blackmail, which might be perpetrated under such circumstances?The extravagant injustice of the provisions for impounding the "goods alleged to infringe" upon the commencement of a suit and for delivering up for destruction all copies, as well as all plates, molds, matrices, and other means for making infringing copies, have been well discussed by Mr. Walker. It is not deemed conceivable that your committee will seriously entertain such obviously oppressive legislation. On what possible pretense of equity or justice may a complainant, who thinks that his copyright has been infringed, upon that mere allegation lock up his competitor's stock of goods, while he on his part monopolizes the market during the pendency of a long litigation to determine the justice of that which may have been only a colorable charge at the start?One's sense of justice is startled into horror at the suggestion of subsection d, on page 18 of the bill, that "all plates, molds, matrices, and other means for making infringing copies shall be delivered up for destruction," even if it is understood that this is to be done only at the conclusion of a suit. Whoever drafted this provision was either malicious or ignorant. (This statement is made with careful deliberation and we wish to repeat it: He was either malicious or ignorant.) Mr. Walker's presentation must make this clear. I make the same for my own client, which has an equipment involving an investment of many thousand dollars for producing perforated rolls, every element of which would enter into the production of each single roll, and all of which would be subject to destruction under the language quoted. Under this provision of the bill a single accidental, inadvertent infringement will subject that entire plant to destruction, though the copyright owner may not be damaged 50 cents.Could anything be easier than for a malicious manufacturer to ruin his competitor by entrapping him into the manufacture of a single infringing roll and then bringing suit under this section and destroying his establishment?Your committee will not doubt that the writer of this section was ignorant of this possibility, if it acquits him of being malicious in the drafting of this provision.7. Section 4966—Public performance.—Your committees have not failed to notice the single provision of section 64 of the bill which, "providing that all acts and parts of acts inconsistent with are hereby repealed," makes exception of section 4966, and in respect to that section provides that its provisions "are hereby confirmed and continued in force, anything contrary in this act notwithstanding."The framers of this bill were more anxious than for anything else that the monopoly of public performance given by section 4966 should in no respect be weakened, and although they have embodied in this bill provisions in terms more stringent than those of that section, fearing that these more stringent provisions might not be constitutional, or that by some slip they might be found to leave a loophole, they reversed the ordinary procedure, and, instead of making the bill as a new act, repealing all inconsistent acts, they make the section of the former act nullify the bill as to all inconsistent features.It will occur to the committee that this is an unscientific mode of proceeding, and that the bill, when enacted into law, should be clear and consistent within itself, and not subject to nullification by its own terms in any respect.But it is believed that section 4966 of the present statute has been tacitly treated as meaning something which the legislature in enacting it never intended, and that the provisions in the present bill, developing into express terms that which has been tacitly treated as involved in the terms of said section of the present law, crystalizes into dangerous permanency a defect which would have been eliminated from the present statute whenever the United States courts had occasion to review it.Protection for public performance is justifiable only in respect to compositions which by their nature yield no considerable revenue to the author by the sale of copies or otherwise than by public performance. Dramatic compositions clearly fall within this class. A dramatic composition is written primarily to be performed and only incidentally to be read. Some dramatic compositions may have such literary character that they would be bought to be read and so little dramatic quality that they will not be largely performed; but the dramatic composition whose value is in performance and not in reading gets little protection from the copyright statute without special provision giving monopoly of public performance. A hundred copies will supply all the actors who need it; no one else wants it; but a million people will be glad to see it performed and will pay high prices for their seats. The dramatic writer must get his revenue from the million—not from the hundred—or he will fail of adequate compensation.Recognizing this situation, Congress, in 1870, enacted the following provision:"Sec. 4966.Any person publicly performing or representing any dramatic composition for which copyright has been obtained, without the consent of the proprietor or his heirs or assigns, shall be liable," etc.In 1897 the section was amended by inserting the provisions now contained in section 4966, making it include musical compositions, the words "or musical" being inserted after the word "dramatic" in the second line of above.There can be no reasonable doubt that the intention of the amendment of this section, by making it refer also to musical compositions, was to include musical-dramatic with other simple dramatic compositions; that is, to make the scope of the protection take in all compositions whose value rested in dramatic performance as distinguished from mere vocalization.The word "perform" in the section clearly points to this significance and intention.It is not believable that Congress intended to provide by this amendment that every member of a religious congregation joining publicly in the singing of a copyrighted tune should be liable to the penalties prescribed by this section; nor even that every member of a church choir, having purchased the copies of the copyrighted anthem, sold only for such purpose and useful only for such use, should be subject to these penalties, if the publisher omitted to grant expressly the permission to sing with the sale of a printed copy.But no other interpretation can possibly be derived from the present section unless the word "perform" is taken as applying to dramatic performance and as not including mere vocalization in public.The present bill is intended to leave no doubt upon this point, and in that respect it is contrary to public policy, sound sense, and every consideration of justice.The holder of a musical copyright should not be vested, by virtue of that copyright, with the right to sell his music, which is made to be sung, and prohibit its singing; to sell his music, which is made to be played, and prohibit its playing. Still more obnoxious to justice is it that one who has been openly sold a copy of a piece of music, and who has done with it that which constitutes the only motive for buying it, namely, has sung it, or played it, or procured some one else to sing it for his entertainment, should, if he chances to do that in public, be penalized and put in the position of one who has committed a misdemeanor or transgressed another's rights. Reason and sense revolt at such a statute or such an interpretation of a statute; and musical composers demanding such rights place themselves in contempt of civilized society.Section 4966 should be amended by making clear that it relates only to dramatic performance, while it includes such performance of compositions which are musical as well as dramatic. And all provisions of the present bill exceeding such protection should be limited.8. As to right of translation.—The present bill makes a radical departure from the present statute in respect to the right of translation of a copyrighted work into other languages. Under the present statute, as above noted and presented in the brief cited, the right of translation inheres in the author as author, conditioned only upon copyright having been obtained of his original work, but not conditioned upon that copyright remaining in him. His assignment of the original copyright does not carry to the purchaser, or divest from the author, the right of translation. The translation, when made by the author, is his own product. He may copyright it or not as he pleases; but the owner of the original copyright has no right in the translation unless expressly conveyed to him (which may be done, of course, by express mention in the conveyance of the original copyright, or by the transference of the manuscript of the original work before copyright, putting the purchaser in the position fully of the author as to all the rights arising out of authorship).The present bill, however, makes the right of translation not merely one which is conditioned upon the existence of copyright of the original work, but an essential and integral part of that copyright, so that it will pass with the assignment of the copyright without special mention, and the proprietor of the copyright, and not the author, would thereafter have the right of translation. The author could not translate his own work without infringing the copyright which he had sold to the proprietor. Any translation, however maladroit or misleading, which the copyright owner—publisher—might approve would pass under the author's name as his work into the foreign language, and he would have no voice to protest against the libel, no power to remedy the injury by putting out a correct translation.It can not be doubted that such considerations as these governed in the enactment of the present statute in such form that the right of translation inheres in the author and does not pass without his express act, though the original copyright may have been assigned. It is obvious that the author ought to have a right in respect to translation which will not require express reservation in order to remain his own when he sells his copyright. It will be apparent that negotiations between an author and publisher for the sale of his copyright will commonly proceed in general terms, referring to the copyright by that term, and that the author will commonly be considering only what may be termed the original copyright in such negotiations, and that he will in some instances convey the copyright with no thought of the appurtenant rights involved in it, and will wake up only too late to find that he has no control over translation, if the term "copyright" carries the whole right, including that of translation, as the present bill provides.The statute is right as it stands and the bill should be amended to conform to the present statute in this respect.I have drafted amendments to the various sections and paragraphs of the bill such as are necessary, in my judgment, to make it conform with the requirements of equity to the different interests affected, and with sound public policy, in the various respects above pointed out and discussed, and would submit them herewith, but find that they are so numerous and require insertions and emendations at so many points in the bill that I believe the purposes of the committee will be much better served by the submission a little later of a full draft of a bill embodying the various changes which I would suggest, so that the matter may be considered in a form consistent throughout instead of in the piecemeal form which would result from the many amendments which would be required to put the present bill in desirable form.Such completely framed bill I promise to submit to the committee at an early day and in ample time for full consideration upon the reassembling of the committee in the fall.Thanking the committee for the opportunity which has been afforded me for presenting my views in the interest of my client, I am,Respectfully,Chas. S. Burton,Representing Melville Clark Piano Company.
To the Senate and House Committees on Patents:
Pursuant to the permission granted me at the conclusion of the few minutes' oral hearing with which I was favored before the joint meeting of your committees, I beg to submit herewith a brief and suggestions with respect to the amendments to Senate bill 6330 and House bill 19853, deemed proper and necessary in order to make the act contained in said bills properly protective of the rights and conservative of the interests arising out of and connected with the industries of automatic musical instruments and controlling devices—perforated rolls, talking-machine disks, and phonograph cylinders—for the same.
All of which is respectfully submitted.
The following facts should be taken into consideration in making any amendment to the copyright law affecting automatic reproducing devices as well as perforated rolls for reproducing music, talking-machine disks, and phonograph cylinders for their respective purposes.
1. To the modern arts relating to automatic music-playing devices and automatic means for reproducing sound, such as talking machines and graphophones, authors and music composers have contributed not a single iota.
These arts have been the result of the combined efforts of thousands of scientific, industrious, and artistic inventors. These inventors and the manufacturers cooperating with them by their capital and business skill and enterprise have created these entire arts and to them is due the entire benefit which the public has derived and is deriving from these arts.
2. Musical composers and song writers, notwithstanding their entire lack of participation in the creation and development of these arts, have derived already and are still deriving large pecuniary benefit from them.
This is most clearly provable in respect to musical compositions. For any musical composition which has been largely reproduced by automatic players employing perforated roll controllers a largely increased demand immediately arises. The sale of the ordinary staff notation of any such composition experiences a notable stimulus immediately upon the production and sale of the perforated rolls for producing the composition automatically upon musical instruments.
This fact is conclusively established by the record in the suit of Apollov.White-Smith Music Publishing Company, lately determined in the United States circuit court of appeals in the eastern division of the southern district of New York. We are filing herewith a copy of the printed record of the defendant in that suit, having marked the pages[1]containing the testimony upon this point, and also a copy of the brief on behalf of the defendant citing[2]the facts as established by the record upon both sides to the effect that in the face of the testimony by wholesale and retail dealers in sheet music, that the sale of perforated rolls for such music largely and promptly increased the demand for the sheet music, there was offered not one word of testimony to the contrary, although in the control of the complainants and available as witnesses in their behalf—practically as cocomplainants or cobeneficiaries with them in the suit—were included nearly all the large publishers of and dealers in sheet music, whose records of sales would have established the facts one way or the other overwhelmingly, so that the absence of testimony from these sources must be taken as an admission of the fact as testified to by the few publishers who were accessible to the defendants.
[1]Schleiffarth, pp. 48-51; McKinley, pp. 97-100; Lutz, pp. 100-101; Jansen, pp. 131-133.
[2]Pp. 29-34.
We assert, and challenge contradiction, that the experience and observation of the music trade during the past ten years, during which this art has grown from infancy to its present proportions, establishes the proposition, viz, that the sale of perforated rolls and other means for automatically reproducing musical compositions to the ear tends largely to increase the demand for the ordinary staff notation or other published form of the particular compositions which are thus reproduced.
3. The making of a perforated roll or equivalent device or appliance for reproducing to the ear a musical composition is not a mere mechanical process nor one involving mere mechanical skill. It is, on the contrary, an artistic process requiring musical taste and ability and affording opportunity for the exercise of the very highest musical taste and ability, conjoined with the most exact and delicate understanding of the mechanical principles and features of the mechanism with which the controller device—perforated roll or the like—is designed to cooperate for reproducing the music to the ear. The art of the "arranger," as he is termed, of a perforated roll brings into exercise an artistic sense and skill of as high a rank as that of the musical composer and requires, in addition thereto, an ability to understand accurately and minutely the intricate mechanism to which the device produced must correspond and with which it must cooperate.
In the case of the talking-machine disk and phonograph cylinder, the contribution of the singer and player is even more obvious, as the essential and controlling element in the value of the devices which result and which are the distinct product of the art of the singer and player is a thing apart from the art of the composer.
The producer of a perforated roll or of a talking machine disk or phonograph cylinder, therefore, is as much entitled to be considered an "author" in virtue of the production of such roll, disk, or cylinder, entirely apart from and subsequent to the composition of the music as is the painter by virtue of his sensitive appreciation of beauties of form and color in nature and his skill in reproducing them upon the canvas. The landscape painter does not create the nature scene, but he is not the less an artist because he depicts it only, instead of creating it from his imagination. Nor is he less entitled to a copyright upon his painting, because it is a more or less perfect reproduction to the eye of that which existed for the eye before he reproduced it, than if he had evolved the scene from his imagination and then depicted it to the eye by the same skill.
The photographer who merely posed his subject is entitled to a copyright upon his photograph. He did not cast the features, nor shape the form, nor arrange the hair, nor devise the costume. He merely posed them all, and chose the position with respect to light and shadow, and adjusted the contrivances for affecting both. This was his art, and the photograph is the result; and it is his photograph for purposes of copyright.
The "arranger" of the perforated roll is an artist of as high merit as the photographer, and in some respects of as high merit as the landscape painter.
If there is to be secured or conferred upon anyone an exclusive right to the perforated roll, or to the talking-machine disk, or to the phonograph cylinder, for producing to the ear a particular composition, that right, in virtue of authorship, belongs to the arranger of the perforated roll and to the singer or player who produces the talking-machine disk or the phonograph cylinder.
That copyright may reasonably be granted to the producers of these devices for the devices themselves seems too obvious for argument, and that it should not be in the power of any composer whose composition is published and on the market to discriminate between different arrangers of perforated rolls or different singers or players, in respect to the right of making such records, respectively, and of selling or renting the same, seems also obvious justice.
It would be no injustice, in view of the observed facts above stated—that the composer derives benefit only and never injury from the sale of these automatic devices—that he should have no rights in respect to them, except to be credited with the compositions by having them marked with the title which he has given them for market and with his name as composer. But in view of the possibility that there may be reciprocal advantage—that the name and repute of the music and of its author may contribute to the sale of the reproducing devices—a royalty for the use of the title and name may reasonably be allowed to the composer.
But the composer should not be recognized as having any right entitling him to prohibit anyone who desires to do so from making such automatic reproducing devices by employing either the art of the arranger of the perforated roll, or the voice of the singer, or the skill of the player on musical instruments.
And the royalty should be uniform for all makers of each sort of device; that is, all makers of perforated rolls for a given composition should pay the same royalty to the composer for the use of his name and the title of his music, and all makers of vocalizing disks or cylinders should likewise pay the same royalty for a given composition.
This right to royalty should be allowed, not in virtue of any domination or supposed domination of the original copyright over the act of reproduction, but solely in virtue of the natural right of the composer to have his name and the title which he has given to his music associated therewith, howsoever it is produced, and of the fact that presumably a commercial value attaches to such name and title, which will benefit the seller of the automatic reproducing device.
This right of royalty should therefore not run to the proprietor of the original copyright as such, but to the composer as such. If the composer has sold his copyright the purchaser should not, by virtue of that purchase, acquire any interest in the royalty of the composer for the use of his name and the title of his music. Of course the composer could sell this royalty right, and if he chose to sell it with the copyright and to the same person he could do so, but it should not pass without express mention. It should not pass as incident or appertaining to the copyright.
Such a provision would be precisely like the provision in the present statute with respect to translations. In the statute it is now provided, not that the copyright includes the right of translation, but that the author whose work has been copyrighted has the exclusive right of translation. He may sell his copyright, but such sale does not divest him of the monopoly of the translation nor vest such monopoly of translation in the assignee of his copyright.
Note.—This point is somewhat fully developed in brief of the defendants in White-Smith Music Publishing Companyv.Apollo, copy of which brief is herewith furnished. (See p. 46 to 50, inclusive.) The position above stated and presented in brief, as above noted, was not controverted and was apparently fully conceded as a legal proposition, by counsel for the complainants in that suit. The ultimate propositions supported by the above contention in that suit were contested upon other grounds. Copy of complainants' brief upon this point will be furnished the committee later, with citation to the particular paragraphs sustaining the above statement.
Outside of and as an exception to the general class of musical compositions to which the foregoing considerations are pertinent, there is a class more closely related to automatic reproducing devices and in respect to which the composer has a more vital interest, viz:
Musical compositions not reproducible to the ear by a single human performer upon any instrument, but which can be produced by means of perforated rolls on an automatic instrument.
The staff notations of such compositions have practically no market value, except in case they are arranged in the forms of orchestral scores, so as to be produced by a plurality of instruments simultaneously played by different performers. The number of copies of such orchestral scores which will be required is necessarily very limited, and the sale of such staff notations offers a very limited field from which the composer may derive a just compensation for his work. The only source of revenue to the composer of such works is in the sale of the only means of playing these, viz, the perforated rolls.
It may be deemed proper and it will not be denied that it would be just that a composer of a musical composition of this class who causes it to be embodied in the form of perforated roll, and who can derive a revenue from it practically only in this form, should be considered in the light of both composer and arranger, and as entitled to obtain original and independent copyright of the perforated roll, so as to control the composition absolutely in this form.
It is believed that it will not be difficult to frame a provision of the statute to do justice to this class of composition, and which shall not trench upon the natural equity of the perforated roll arranger for other musical compositions, or upon the natural right of the public to derive the use of the automatic reproducing devices upon ordinary musical compositions, without requiring the consent of or paying tribute to the composer.
4. As to duration of copyright.—The bill before your committees proposes a remarkable extension of the period of copyright beyond anything heretofore granted. This is believed to be contrary to sound public policy and of doubtful constitutionality.
The Constitution expressly limits the power of Congress in respect to their copyright protection to granting such protection "for limited periods." The term "limited" can have only a relative meaning, and the obvious meaning is limited with respect to or in comparison with the period during which the public will have desire or use for the copyrighted work. It is contemplated, evidently, that in compensation for the protection which the statute gives the composer for a limited period the public shall derive the unqualified use and benefit of the work for a remaining period. If there is no remaining period, the consideration for the protection has failed.
It needs no statistics to establish to the common knowledge of the committee that not one book in ten thousand has any commercial value fifty years after its publication. It will probably be safer to say that not one published work in a hundred thousand has any life after fifty years. If, therefore, the author is given the monopoly for fifty years, the public has nothing left to compensate it for that monopoly and protection.
Not one work in a million endures so as to have any value after one hundred years.
But the bill proposes, as to the great bulk of copyrightable matter, that the period of copyright shall be substantially one hundred years—fifty years after the death of the author.
It is respectfully submitted that this transcends the intention of the constitutional limitation, and that the public would, by such an enactment, be deprived of substantially all the compensation which the Constitution intended should be reserved to it in return for the copyright protection granted the author.
Whether the constitutional limitation should or should not be so strictly applied, it seems beyond doubt that sound public policy forbids thus bartering away all the public benefit arising from the free right of publication after the expiration of copyright.
There is a second objection to the particular form in which the bill gives this extended copyright term. There does not appear to be any logical relation between the copyright protection and the duration of the life of the author. The privilege or protection granted is in no respect personal, except as to the revenue which may be derived.
There does not appear any reason why the work of a mature writer of 60, presumably capable of giving to the public compositions of peculiar value, especially if they relate to scientific or philosophical subjects, should receive less protection from his copyright than would be granted to a youth of 20, whose immature productions would obtain the protection of a presumably long life before him (during which he would often regret his immature publication).
Furthermore, the particular form or provision of the bill with respect to joint authors (line 24, p. 14; line 26, p. 15), when corrected to cure the obvious error in the phraseology and express the doubtless intended meaning, opens the way most obviously for practical fraud upon the public. An aged author, by associating with himself in a nominal yet unimpeachably colorable way a youthful assistant, and obtaining copyright in their names as joint authors, will secure protection for his work concurrent with the life of the junior and fifty years thereafter, instead of concurrently with his own nearly ended life and subsequent fifty years.
It is obvious that joint authorship will become exceedingly popular if this paragraph of the bill is retained; and by the expedient of triple or quadruple authorship the chances of a long period will be greatly increased.
Note.—The very obvious error above indicated—line 24, page 14, line 2, page 15—has probably received the attention of the committee. The sentence supplying the connection from the commencement of section 18 now reads: "That the copyright secured by this act shall endure* * *in the case of joint authors, during their joint lives and for fifty years after the death of the last survivor of them." The gap which is left between the dates of death of the first and last dying of the joint authors is uncovered by the copyright under this form of statement. That is, the copyright would lapse upon the death of the first dying—the end of their joint lives—and revive at the death of the last survivor. The correction is obvious. Make the sentence read: "In the case of joint authors, until the death of the last survivor of them and for fifty years thereafter."
It is believed that the present term of copyright should not be disturbed unless to shorten it. Twenty-eight years, with a possible extension of fourteen, exceeds the actual life of a great majority of copyrighted publications and leaves the public nothing for its concession of temporary monopoly to the inventor; but it is, perhaps, a fair average, and at least it has caused no serious complaint upon either hand.
An exception should, however, be made in respect to any protection which may be given to anyone, whether composer or arranger, with respect to the automatic reproducing devices—such as perforated rolls—associated so closely, as these devices necessarily are, with manufacture as distinguished from publications and with inventions as distinguished from literary or artistic works. The duration of the patents, whose owners must pay tribute to the holders of any form of copyright upon the perforated rolls, are granted only seventeen years' monopoly in which to derive all compensation for their inventions.
The copyright protection, if any, granted in any form upon perforated rolls should not exceed the term of patents—seventeen years.
5. Verification of authorship and ownership should be required.—All our copyright laws hitherto have been unaccountably lax in respect to the requirements for making prima facie title to copyright by virtue of authorship or proprietorship. It has only been necessary, and the present bill only makes it necessary, that the applicant for registration under the copyright statute should state, without verification of any sort, that he claims as the author or proprietor, as the case may be. So singularly loose is the requirement that the applicant is not even required to declare that he is the author or proprietor, but only to state that he claims as author.
How easily a fraudulently disposed claimant will satisfy his conscience in stating that he claims as the author, when he might hesitate to declare that he is, in fact, the author; and how much more easily one who conceives that he has a shadow of right to ownership will make the like statement that he claims as the proprietor when he would hesitate to declare that in fact he is the proprietor, is obvious without comment.
But it is certainly obvious that so vast and important a right as that conferred by the copyright statute should not be vested and given prima facie validity in anyone who has merely the effrontery to declare even that he is the owner or that he is the proprietor.
Why should less be required of the claimant to copyright than is required of the claimant to patent right?
The applicant for patent must make oath that he believes himself to be the first and original inventor, and his oath must also declare affirmatively the existence of all of the other conditions precedent to his right to obtain a patent. Why should not the author claiming copyright be subject to a similar requirement?
The assignee of an inventor desiring a patent to issue to himself must file in the Patent Office an instrument in writing, signed by the inventor, conveying to the assignee the whole or such portion of the interest as it is desired to have appear in the name of the assignee upon the issue of the patent, and must in addition expressly request that the patent so issue to the assignee. Why should less proof be required of one claiming copyright as proprietor?
It seems that no argument is necessary to enforce these suggestions. Under the present law and under the proposed bill any publisher obtaining possession of an author's manuscript under any color of right not involving him in larceny by reason of the possession may proceed to put the work in print and make application for copyright, not even averring that he is the proprietor, but stating that he claims as proprietor. The copyright certificate will issue, and his title to the copyright will be prima facie established by the proceedings which he takes pursuant to the statute and the action of the copyright office therein; and the author, who may be ignorant of the proceedings, who may have only entered upon negotiations with the publisher without any intention of accepting the offers which may have been made, finds himself in the position of being obliged to contest a prima facie right on the part of the publisher to the copyright in his work, with the alternative that if the publisher's title is not conceded to be good the author's right is lost by publication.
How many authors have succumbed to the embarrassment of just this situation, deliberately created by greedy publishers, will never be known, but it is time that the statute which offers such inducement to greedy human nature to perpetrate frauds of this character should be remedied, and that the prima facie right acquired under copyright statutes should have behind it at least the support of the oath as to authorship and of an instrument of assignment by the author to the party claiming as proprietor.
6. Penal provisions.—It is respectfully submitted that the penal provisions of this statute are grossly disproportionate to the offenses or injuries to which they are directed, and obviously provocative of blackmail and coercion, and in some instances clearly unconstitutional and unenforceable. No attempt will be made here to discuss all of these provisions, but attention will be directed only to those which bear upon the particular matter on behalf of which this presentation is made, namely, automatic reproducing devices; and without discussion it is suggested as too obvious for argument that a penalty of $10 for each and every infringing copy of a perforated roll found in the possession of the alleged infringer, his agents or employees, is grossly excessive, in view of the selling price of such rolls, which seldom exceeds $3, and probably averages not far from $1.
Severe penalties are only proper where the offense complained of can not be committed by accident or inadvertence, and where there can be no possible mistake as to a given act constituting the offense. In any case in which there might be room for difference of opinion, or where the offense might be committed unwittingly, such penalties are grossly improper.
But when the situation is such that the party entitled to complain or who might allege injury by reason of the alleged offense is to be the beneficiary of the penalty, and especially, as in the present bill, is to absorb the entire penalty, it is obviously contrary to reason and good morals to make the penalty materially exceed the damage, because there is thereby created a motive on the part of the person alleging injury to promote and encourage surreptitiously the alleged offense until it has grown to large proportions, so that he may thereby reap a greater benefit from the trespass than he could possibly have reaped otherwise from the property trespassed upon.
In the case of the perforated rolls, all these objections to severe penalties are found concurrent, for—
(a) There will easily arise wide and honest difference of opinion as to whether two given perforated rolls are infringements, one of the other, and even whether a given perforated roll is an infringement of a particular musical composition (if the bill should be retained in such form as to make the original copyright apply to perforated rolls). It is well known that controversies are constantly arising upon the question of infringement as between two staff notations, the second author often claiming and frequently establishing, contrary to the belief of the first, that his composition was an independent one, both having derived their theme from sources in the public domain.
A perforated roll presenting a composition only so similar to a public and copyrighted composition as to raise a question of infringement if it were a staff notation, instead of a perforated roll, will raise the same question as a perforated roll. The copyright owner will reap an advantage, it may be, of 10 per cent, upon the selling price of the sheet music, let us say 15 to 25 cents for every copy sold. He will reap a profit of $10 as a minimum upon every copy which he can find in the possession of the alleged infringer, his agents, or employees. Is there any doubt which remedy he will elect? Is there any doubt that he will await his opportunity for finding a large stock in the hands of the alleged infringer? Is there any doubt that a statute so framed would offer almost irresistible inducement to blackmail, which might be perpetrated under such circumstances?
The extravagant injustice of the provisions for impounding the "goods alleged to infringe" upon the commencement of a suit and for delivering up for destruction all copies, as well as all plates, molds, matrices, and other means for making infringing copies, have been well discussed by Mr. Walker. It is not deemed conceivable that your committee will seriously entertain such obviously oppressive legislation. On what possible pretense of equity or justice may a complainant, who thinks that his copyright has been infringed, upon that mere allegation lock up his competitor's stock of goods, while he on his part monopolizes the market during the pendency of a long litigation to determine the justice of that which may have been only a colorable charge at the start?
One's sense of justice is startled into horror at the suggestion of subsection d, on page 18 of the bill, that "all plates, molds, matrices, and other means for making infringing copies shall be delivered up for destruction," even if it is understood that this is to be done only at the conclusion of a suit. Whoever drafted this provision was either malicious or ignorant. (This statement is made with careful deliberation and we wish to repeat it: He was either malicious or ignorant.) Mr. Walker's presentation must make this clear. I make the same for my own client, which has an equipment involving an investment of many thousand dollars for producing perforated rolls, every element of which would enter into the production of each single roll, and all of which would be subject to destruction under the language quoted. Under this provision of the bill a single accidental, inadvertent infringement will subject that entire plant to destruction, though the copyright owner may not be damaged 50 cents.
Could anything be easier than for a malicious manufacturer to ruin his competitor by entrapping him into the manufacture of a single infringing roll and then bringing suit under this section and destroying his establishment?
Your committee will not doubt that the writer of this section was ignorant of this possibility, if it acquits him of being malicious in the drafting of this provision.
7. Section 4966—Public performance.—Your committees have not failed to notice the single provision of section 64 of the bill which, "providing that all acts and parts of acts inconsistent with are hereby repealed," makes exception of section 4966, and in respect to that section provides that its provisions "are hereby confirmed and continued in force, anything contrary in this act notwithstanding."
The framers of this bill were more anxious than for anything else that the monopoly of public performance given by section 4966 should in no respect be weakened, and although they have embodied in this bill provisions in terms more stringent than those of that section, fearing that these more stringent provisions might not be constitutional, or that by some slip they might be found to leave a loophole, they reversed the ordinary procedure, and, instead of making the bill as a new act, repealing all inconsistent acts, they make the section of the former act nullify the bill as to all inconsistent features.
It will occur to the committee that this is an unscientific mode of proceeding, and that the bill, when enacted into law, should be clear and consistent within itself, and not subject to nullification by its own terms in any respect.
But it is believed that section 4966 of the present statute has been tacitly treated as meaning something which the legislature in enacting it never intended, and that the provisions in the present bill, developing into express terms that which has been tacitly treated as involved in the terms of said section of the present law, crystalizes into dangerous permanency a defect which would have been eliminated from the present statute whenever the United States courts had occasion to review it.
Protection for public performance is justifiable only in respect to compositions which by their nature yield no considerable revenue to the author by the sale of copies or otherwise than by public performance. Dramatic compositions clearly fall within this class. A dramatic composition is written primarily to be performed and only incidentally to be read. Some dramatic compositions may have such literary character that they would be bought to be read and so little dramatic quality that they will not be largely performed; but the dramatic composition whose value is in performance and not in reading gets little protection from the copyright statute without special provision giving monopoly of public performance. A hundred copies will supply all the actors who need it; no one else wants it; but a million people will be glad to see it performed and will pay high prices for their seats. The dramatic writer must get his revenue from the million—not from the hundred—or he will fail of adequate compensation.
Recognizing this situation, Congress, in 1870, enacted the following provision:
"Sec. 4966.Any person publicly performing or representing any dramatic composition for which copyright has been obtained, without the consent of the proprietor or his heirs or assigns, shall be liable," etc.
In 1897 the section was amended by inserting the provisions now contained in section 4966, making it include musical compositions, the words "or musical" being inserted after the word "dramatic" in the second line of above.
There can be no reasonable doubt that the intention of the amendment of this section, by making it refer also to musical compositions, was to include musical-dramatic with other simple dramatic compositions; that is, to make the scope of the protection take in all compositions whose value rested in dramatic performance as distinguished from mere vocalization.
The word "perform" in the section clearly points to this significance and intention.
It is not believable that Congress intended to provide by this amendment that every member of a religious congregation joining publicly in the singing of a copyrighted tune should be liable to the penalties prescribed by this section; nor even that every member of a church choir, having purchased the copies of the copyrighted anthem, sold only for such purpose and useful only for such use, should be subject to these penalties, if the publisher omitted to grant expressly the permission to sing with the sale of a printed copy.
But no other interpretation can possibly be derived from the present section unless the word "perform" is taken as applying to dramatic performance and as not including mere vocalization in public.
The present bill is intended to leave no doubt upon this point, and in that respect it is contrary to public policy, sound sense, and every consideration of justice.
The holder of a musical copyright should not be vested, by virtue of that copyright, with the right to sell his music, which is made to be sung, and prohibit its singing; to sell his music, which is made to be played, and prohibit its playing. Still more obnoxious to justice is it that one who has been openly sold a copy of a piece of music, and who has done with it that which constitutes the only motive for buying it, namely, has sung it, or played it, or procured some one else to sing it for his entertainment, should, if he chances to do that in public, be penalized and put in the position of one who has committed a misdemeanor or transgressed another's rights. Reason and sense revolt at such a statute or such an interpretation of a statute; and musical composers demanding such rights place themselves in contempt of civilized society.
Section 4966 should be amended by making clear that it relates only to dramatic performance, while it includes such performance of compositions which are musical as well as dramatic. And all provisions of the present bill exceeding such protection should be limited.
8. As to right of translation.—The present bill makes a radical departure from the present statute in respect to the right of translation of a copyrighted work into other languages. Under the present statute, as above noted and presented in the brief cited, the right of translation inheres in the author as author, conditioned only upon copyright having been obtained of his original work, but not conditioned upon that copyright remaining in him. His assignment of the original copyright does not carry to the purchaser, or divest from the author, the right of translation. The translation, when made by the author, is his own product. He may copyright it or not as he pleases; but the owner of the original copyright has no right in the translation unless expressly conveyed to him (which may be done, of course, by express mention in the conveyance of the original copyright, or by the transference of the manuscript of the original work before copyright, putting the purchaser in the position fully of the author as to all the rights arising out of authorship).
The present bill, however, makes the right of translation not merely one which is conditioned upon the existence of copyright of the original work, but an essential and integral part of that copyright, so that it will pass with the assignment of the copyright without special mention, and the proprietor of the copyright, and not the author, would thereafter have the right of translation. The author could not translate his own work without infringing the copyright which he had sold to the proprietor. Any translation, however maladroit or misleading, which the copyright owner—publisher—might approve would pass under the author's name as his work into the foreign language, and he would have no voice to protest against the libel, no power to remedy the injury by putting out a correct translation.
It can not be doubted that such considerations as these governed in the enactment of the present statute in such form that the right of translation inheres in the author and does not pass without his express act, though the original copyright may have been assigned. It is obvious that the author ought to have a right in respect to translation which will not require express reservation in order to remain his own when he sells his copyright. It will be apparent that negotiations between an author and publisher for the sale of his copyright will commonly proceed in general terms, referring to the copyright by that term, and that the author will commonly be considering only what may be termed the original copyright in such negotiations, and that he will in some instances convey the copyright with no thought of the appurtenant rights involved in it, and will wake up only too late to find that he has no control over translation, if the term "copyright" carries the whole right, including that of translation, as the present bill provides.
The statute is right as it stands and the bill should be amended to conform to the present statute in this respect.
I have drafted amendments to the various sections and paragraphs of the bill such as are necessary, in my judgment, to make it conform with the requirements of equity to the different interests affected, and with sound public policy, in the various respects above pointed out and discussed, and would submit them herewith, but find that they are so numerous and require insertions and emendations at so many points in the bill that I believe the purposes of the committee will be much better served by the submission a little later of a full draft of a bill embodying the various changes which I would suggest, so that the matter may be considered in a form consistent throughout instead of in the piecemeal form which would result from the many amendments which would be required to put the present bill in desirable form.
Such completely framed bill I promise to submit to the committee at an early day and in ample time for full consideration upon the reassembling of the committee in the fall.
Thanking the committee for the opportunity which has been afforded me for presenting my views in the interest of my client, I am,
Respectfully,
Chas. S. Burton,Representing Melville Clark Piano Company.
STATEMENT OF NATHAN BURKAN, ESQ., OF NEW YORK CITY.
Mr.Burkan. Gentlemen, there has been a great deal said here about this "monopoly," this great "music trust," that intends to——
Mr.Chaney. You are a publisher, are you?
Mr.Burkan. I represent the Music Publishers' Association. This combination between the Music Publishers' Association and the Æolian Company, the purpose of which is to destroy the independent manufacturers of perforated rolls, cylinders, and disks adapted to reproduce musical sounds.
I think we should at this time refer to the history of this alleged contract between Æolian Company and some of the publishers. A number of years ago an action was brought in the circuit court of Massachusetts to restrain the manufacture and sale of perforated rolls on the ground that such perforated rolls infringed the complainant's copyright on his musical composition. The case was argued before Judge Colt, and he decided that a perforated roll was not a copy of a sheet of music, and therefore not an infringement of the copyright. (Kennedyv.McTammany, 33 Fed. Rep., 584.) A number of years thereafter another action was begun in the District of Columbia, the case of Sternv.Rosey, to restrain the manufacture of cylinders and disks adapted to reproduce musical sounds—applying particularly to talking machines. That court decided against the publisher. Thereafter these companies grew up, one after another, and manufactured rolls, disks, and cylinders, and appropriated for use upon these devices the property of the composer, for which he did not receive a dollar.
The Æolian Company, the pioneer in this line of industry, became a very large concern, investing millions of dollars in the establishment of a plant and in the manufacture of these rolls. They knew, or were advised by counsel, that this question, whether a perforated roll adapted to reproduce a copyrighted musical composition was not a "copy" of the composition within the meaning of the copyright law, was uncertain; it had never been decided by any appellate court. And it was very essential for the welfare of the company, and for the protection of its interests, to ascertain whether in fact it was infringing upon a copyright every time it made or sold a roll.
TheActing Chairman. Do you represent the Æolian Company?
Mr.Burkan. No, sir; I do not. I have no interest in the Æolian Company. I never appeared in any action for it, am not appearing for it now, and do not expect and will not receive or accept any compensation for my services here. I represent the music publishers, and I am a friend of Mr. Victor Herbert.
I desire to reiterate that the Æolian Company was advised by able counsel that there was some doubt about this proposition. The Æolian Company, to protect its property, and in order to settle this question once for all, sent its agents to several publishers who stated to them: "Gentlemen, we have sought legal counsel—the ablest that we could find in the city of New York—who advise us that there is grave doubt as to whether the manufacture by us of these perforated sheets do not infringe your copyrights, and that question ought to be determined by the highest court or the land."
No single publisher, gentlemen, had sufficient funds to carry on such an expensive litigation, because these music publishers are not the millionaires that our friends on the other side have attempted to point out and show. Most of them are poor men. No single composer would be able to supply the funds to carry on such a litigation. There was a great deal involved; and when this company came and said: "Gentlemen, we will take up this litigation; we will try to establish your rights; but for our trouble, if we do establish your rights, if we can get the highest court in the land to decide that the present copyright laws are applicable to these perforated sheets, then we want the exclusive rights to manufacture perforated rolls adapted to reproduce your music upon specified royalties for a number of years."
Was there anything inherently wrong in that? A number of publishers naturally jumped at that offer. It would mean to a large publisher thousands of dollars if the courts decided in his favor. At the time when this offer was made, the perforated roll companies were appropriating his copyrighted music for which he received not a single penny. And the contract that was entered into between the Æolian Company and some of the publishers, a copy of which was offered in evidence here, provides that the consideration for this agreement was this litigation. Nothing was concealed; everything in connection with this contract was done in the open, and the consideration for the contract is expressed in the contract as follows:
And for and in consideration of the premises the Æolian Company hereby covenants and agrees to pay all proper expenses of conducting such suit for the purpose of testing the applicability of the United States copyright laws to perforated music sheets of kinds aforesaid, and that if the court of last resort shall in such suit decide that the United States copyright laws are applicable to such perforated music sheets, then and in such, case and from that time forward the Æolian Company will keep the books of account and pay the royalties.
And for and in consideration of the premises the Æolian Company hereby covenants and agrees to pay all proper expenses of conducting such suit for the purpose of testing the applicability of the United States copyright laws to perforated music sheets of kinds aforesaid, and that if the court of last resort shall in such suit decide that the United States copyright laws are applicable to such perforated music sheets, then and in such, case and from that time forward the Æolian Company will keep the books of account and pay the royalties.
These gentlemen, the publishers who made this contract, did not have in mind the creation of a monopoly. Each publisher, naturally, as any other business man, wanted to get something for his property, and it was very advantageous to the publisher to get the highest court to decide in his favor, without paying the enormous expense of such a litigation. Mr. Davis, the inventor of these perforated rolls, properly said—he said it truthfully and honestly—"My invention depends upon Mr. Sousa and Mr. Herbert and their compositions." The music of these gentlemen is a component part of my invention.
TheActing Chairman. The Æolian Company, as the law stood, did not have to pay to musical publishers a cent?
Mr.Burkan. Not a cent.
TheActing Chairman. What was their object in getting a decision of the court which would force them to pay large sums to the musical publishers?
Mr.Burkan. They are the largest manufacturers of these rolls in the world. They have manufactured thousands and thousands of these rolls representing the best copyrighted compositions. Suppose a large number of publishers or a number of public-spirited men had gotten together a fund, and suppose a case to test the applicability of the present copyright laws to perforated rolls had been carried to the highest court and won—then the Æolian Company would have been obliged to account for all its profits on these perforated rolls to the publisher, and would have been obliged to pay Mr. Herbert, Mr. Sousa, Mr. Chadwick, Mr. Damrosch, and other composers thousands of dollars in back royalties; whereas under this agreement the Æolian Company protected itself, because the publisher who signed it consented to the use of his composition for the perforated rolls, and he would have been estopped under such agreement from suing for an accounting of profits.
TheActing Chairman. Yes; but the Æolian Company originated this litigation.
Mr.Burkan. Yes—very true, sir; very true. The Æolian Company (and I do not appear in this matter as its champion at all) had spent thousands of dollars to improve and protect its patents to these perforated rolls. It employs the most skillful and talented arrangers to arrange and edit these compositions embodied in the roll, so that when you purchase an Æolian record or roll and pay your $2.50, or whatever the price may be, you get a roll when used in connection with the playing instrument which gives an exact reproduction of the music as written by the composer, say, by Mr. Nevins, Mr. Chadwick, or Mr. Foote. There were a small number of companies that also sold perforated rolls, but instead of the rolls producing exact reproductions of the music they gave distorted and feeble imitations or versions of that music. They did not give to the public what the public was bargaining for, and instead of creating a taste and demand for this form of reproduction of music, the tendency was to destroy the taste and lessen the demand; and the result was not only to destroy this great industry, of which the Æolian Company was the pioneer and in which it was vitally interested, but also to injure the composer whose work was thus reproduced.
There is an artistic side to this question, sir. If you made a speech in Congress, Mr. Chairman, and I should get someone else to repeat your speech into a machine, and your speech lasted fifteen minutes, but in order to crowd it into a cylinder that is adapted to reproduce a speech of two minutes' duration, I should cut, distort, and disfigure it, and then it was reproduced to the public all over the land and sold as Mr. Currier's speech, you naturally would be offended. That is the artistic side of this case.
Mr.Webb. You would have no right to represent it as his voice, his work.
Mr.Burkan. That is what they are doing—representing it as his, the composer's work, and Mr. Herbert's work is judged by the reproduction of it by these mechanical devices. The public says, "That is Victor Herbert's composition," or "That is Mr. Chadwick's composition." And I want to say to the gentlemen here that this proposed law does not only cover music, but it covers poems, speeches, and stories.
Now, then, some of these men made this contract. This contract is solely dependent upon the decision of the Supreme Court. It is not dependent upon any legislation at all, and the Æolian Company took absolutely no part in this legislation. The Music Publishers' Association received an invitation from Mr. Putnam to appear at the conferences, and we appeared, and we naturally were interested in getting this legislation. But I say this——
Mr.Cromelin. Mr. Chairman, may I interrupt one moment?
Mr.Cromelin. May I deny that?
TheActing Chairman. You will suspend.
Mr.Burkan. The Æolian Company took absolutely no part, had nothing whatever to do with this legislation at all. And I say to you, sir, that if the purpose of these contracts is to stifle competition and to control the industry of making perforated rolls and talking-machine cylinders, then the Sherman Act covers contracts of this kind. I say to you that the Donnelly Act or antitrust law in our State (New York) is very stringent; if it should appear to Mr. Jerome or to the attorney-general of New York, in which State the Æolian Company has its principal place of business, that these contracts tend to stifle trade, or were entered into to destroy competition, each one of these conspirators could be sent to jail, and could be restrained by injunction from enforcing the contracts. We have antitrust laws, sir; and under those laws each of these men could be restrained by injunction from enforcing the contract and criminally punished for entering into it.
TheActing Chairman. Your time has expired. Mr. Cromelin, you may have one minute to contradict any statement he has made.
Mr.Cromelin. Mr. Chairman, just one minute. Just before leaving New York Saturday I spoke with the manager of the Æolian Company, and I wish this to go on record—that he told me that they did not want to oppose this legislation; that they had contracts; and when people have contracts of this kind they do not go to the house tops and proclaim the fact. The only reason you know of this contract, sir, is because it is a matter of record in the case of the Apollo Company in the second circuit of New York.
Mr.Chaney. Do you mean to say that this contract is an improper one to make?
Mr.Cromelin. Not at all; I did not say that, sir.
Mr.Chaney. Then what concern is it to us, who are engaged in framing this bill, about that contract?
Mr.Cromelin. The chairman asked the gentleman whether the Æolian Company was interested in this——
Mr.Burkan. Absolutely not.
Mr.Cromelin. And the manager of the company told me that they were.
TheActing Chairman. It might occur to some members of this committee that if one concern was to get an absolute monopoly of making perforated rolls or musical disks, it did concern this committee.
Mr.Burkan. Can I say a word, sir, on that point? There are hundreds of publishers, sir—hundreds of publishers who are under no contract with the Æolian Company; there are hundreds of composers who are under no contract with this company. You are legislating for the future, and it seems unfair that hundreds of publishers and composers, not parties to this agreement, should be punished because a number of publishers, 10 or 20, have made an unlawful agreement. That is the question that you must consider in connection with this "monopoly" charge.
Mr.Webb. Now, you are a lawyer?
Mr.Burkan. Yes, sir.
Mr.Webb. May I ask you your opinion as to whether or not the word "writings," referred to in article 8 of the Constitution covers these rolls?
Mr.Burkan. Yes, sir; yes, sir. If you will just allow me three minutes——
TheActing Chairman. No; answer the question. I can not allow you three minutes, because we shall have to go over to the House. The hearings will be closed right here, as soon as you answer that question.
Mr.Burkan. In the circuit court of appeals, White-Smith Companyv.Apollo Company case, the court said in a decision involving the question as to whether a perforated roll is an infringement of the copyrighted work which it is adapted to reproduce, and it is important in connection with the claim that Congress has no power to enact this legislation——
The questions raised in these cases are of vast importance and involve far-reaching results. They have been exhaustively discussed in the clear and forcible briefs and arguments of counsel. We are of the opinion that the rights sought to be protected by these suits belong to the same class as those covered by the specific provisions of the copyright statutes, and that the reasons which led to the passage of said statutes apply with great force to the protection of rights of copyright against such an appropriation of the fruits of an author's conception as results from the acts of defendant.
This language of the court is in itself, without further argument on the definition of the word "writings," sufficient warrant and authority for the Congress to enact this legislation.
(The hearings were thereupon announced closed.)