Arguments before the Committee on Patents of the House of Representatives Part 58

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 const.i.tutes 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 a.s.signment 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 ma.n.u.script of the original work before copyright, putting the purchaser in the position fully of the author as to all the rights arising out of authors.h.i.+p).

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 pa.s.s with the a.s.signment 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 pa.s.s 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 pa.s.s without his express act, though the original copyright may have been a.s.signed. 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 rea.s.sembling 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' a.s.sociation. This combination between the Music Publishers' a.s.sociation and the aeolian 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 aeolian Company and some of the publishers. A number of years ago an action was brought in the circuit court of Ma.s.sachusetts 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. (Kennedy _v._ McTammany, 33 Fed. Rep., 584.) A number of years thereafter another action was begun in the District of Columbia, the case of Stern _v._ 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 aeolian 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.

The ACTING CHAIRMAN. Do you represent the aeolian Company?

Mr. BURKAN. No, sir; I do not. I have no interest in the aeolian 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 aeolian Company was advised by able counsel that there was some doubt about this proposition. The aeolian 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 aeolian 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 aeolian 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 aeolian 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.

The ACTING CHAIRMAN. The aeolian Company, as the law stood, did not have to pay to musical publishers a cent?

Mr. BURKAN. Not a cent.

The ACTING 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 aeolian 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 aeolian 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.

The ACTING CHAIRMAN. Yes; but the aeolian Company originated this litigation.

Mr. BURKAN. Yes--very true, sir; very true. The aeolian 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 aeolian 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 aeolian 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 aeolian Company took absolutely no part in this legislation. The Music Publishers'

a.s.sociation 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?

The ACTING CHAIRMAN. You will suspend.

Mr. BURKAN. The aeolian 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 compet.i.tion 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 ant.i.trust 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 aeolian Company has its princ.i.p.al place of business, that these contracts tend to stifle trade, or were entered into to destroy compet.i.tion, each one of these conspirators could be sent to jail, and could be restrained by injunction from enforcing the contracts. We have ant.i.trust 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.

The ACTING 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 Sat.u.r.day I spoke with the manager of the aeolian 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?