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to this extent the exclusive character of the Federal grant was curtailed. The constitutional question was directly raised, the court saying:
It is asserted by the plaintiffs in error that the subject of the sale or assignment of the whole or any part of an interest in a patent is derived from the laws of Congress passed with reference to the constitutional provision quoted above, and that any regulations whatever by any State authority in regard to such assignment or sale, and making provision in respect to them, are illegal.
Drawing an analogy between patents and copyrights, no reason is perceived why any reasonable and proper restriction should not be imposed by statute by which the rights conveyed may not conform to the public interests. To grant the rights in such a way that all music could be put in the hands of one concern with the probability that eventually the musical instruments themselves would be similarly monopolized, would be certainly opposed to those interests.
If it is considered desirable that a patent shall not be granted on an invention which has been abandoned or that has been in public use for more than two years, it is not seen why copyrights can not be lawfully granted upon the express condition that upon the payment of a fair and reasonable royalty they shall be available to anyone wishing to use them. While, therefore, the difficulties concerning this entire question may not be insurmountable, they are obviously great, and can be best taken care of in a separate measure. To create a new property will mean much litigation and a less satisfactory seryice to the public. It would probably mean very little to the composer and much more to the publisher. It would not promoie the development of American music, but would retard it. It is hoped, therefore, that Congress will follow the lead of Great Britain, Belgium, and the other enlightened countries on this point, and will not depart from the present law under which the composition of music and its mechanical reproduction have simultaneously developed to an enormous extent. If, however, the situation is to be changed, we ask that it be done in a way that will be least harmful to the existing interests.
STATEMENT OF MR. PAUL H. CROMELIN, PRESIDENT AMERICAN
MUSICAL COPYRIGHT LEAGUE, VICE-PRESIDENT COLUMBIA PHONOGRAPH COMPANY, GENERAL.
Mr. CROMELIN. Mr. Chairman and gentlemen of the Patent Committee: When I came to Washington I did not understand that we were expected to consider in any way the subject of moving pictures. The fight heretofore has been confined to the mechanical reproduction of music. I was informed by Senator Smoot that a decided opposition to the moving-picture business had developed, and though I am not connected with that industry it seemed to me only fair that if it was to be attacked persons interested should be heard. I phoned, therefore, to New York to the Cameraphone ('ompany, explained the situation, and suggested that Mr. Whitman, president of the company, come down here, as you might want to hear from him or ask him questions. He sent me a telegram reading:
Please represent us before committee on copyright bill. Will come down and give you any information you desire.
He reached here this morning and is now in the room if required.
One of the speakers for the theatrical producing managers insisted on getting in the report of these proceedings the fact that movingpicture films showing scenes from the Merry Widow had been made and were being used in connection with the talking machine to the very great financial injury of the owners of the American rights. I take it for granted that you are therefore led to believe that the copyright was being infringed. At the outset permit me to state that no American copyright subsists in the Merry Widow. It was composed by Franz Lehar, of Vienna, an Austrian subject, prior to the copyright treaty between the United States and Austria. Mr. Whitman informs me that before making the films he approached the representative of Mr. Henry W. Savage, under whose management the operetta is being produced in America and was referred to his lawyer, Mr. Fromme. He says he told Mr. Fromme that although he understood the opera was not copyrighted in the United States, still he was uncertain whether or not he would be violating any of Mr. Savage's rights in having the films made. He wanted to know whether or not they could not agree on some fair and reasonable basis, giving Mr. Whitman's company, the Camera phone Company, the right to photograph the artists themselves and use them in connection with the various songs which had been phonographically recorded. The price which Mr. Fromme proposed was absolutely prohibitive. If Mr. Whitman had consented to pay this price he would have been obliged to pay to Henry W. Savage more than his company could make out of the films. His own counsel advised him that he had a perfect right to make the films, and using four graphophone records he employed artists to dance in unison with them after the fashion of the artists who dance the waltz in the Merry Widow, and others to pose and appear to be singing, and had the films made, as he had the right to do. No one will seriously question his right to use the records, nor to have the films made nor to use them in synchronism if he chose.
And this is the terrible, the unspeakable offense, that they insist be made part of this record and which moves Mr. Ligon Johnson, counsel for the theatrical producing managers, to describe him as a “human vulture hovering over the battlefields of dramatic success seeking to profit off the brains of the author.” But we are used to that kind of talk, for have we not been charged here with being thieves, robbers, and men who steal the product of other men's brains?
Representative CURRIER. Let me ask a question about the Merry Widow. How many publishing houses in the United States are publishing that!
Mr. C'ROMELIN. A great many. I had one of my office boys go to three music stores in Washington this morning, and he purchased for me twelve different editions of the Merry Widow, put out by these honorable publishers who come down here and preach about the morals and the ethics of this question and the wrongs of the poor composer. Here they are. I could have obtained many more if I had'had time, and since our friends on the other side have insisted on the Merry Widow film incident going in the record it may prove interesting reading to have it also appear in the record that the Eclipse Publishing Company have published the Merry Widow; that Mr. Hamilton S. Gordon has published it and is selling it in the city of Washington; that Mr. B. F. Wood, of Boston, who ap
peared before your committee a few nights ago and was so insistent upon his right to have his musical engraving work done in Germany by German workmen, this same B. F. Wood, of Boston, has a beautifül edition of the Merry Widow; that the Arnett-Delonais Company, of Chicago, has also an edition on sale this morning in Washington; that Chappell & Co., of New York and London, have copies for sale to-day in Washington: the McKinley Music Company, of Chicago and New York, have published it and are now selling it; the great house of G. Schirmer, New York, whose representative, Mr. Tindale, you have heard discourse about ethics, has put out an edition of the Merry Widow: Will Wood, No. 17 West Twenty-eighth street, New York, has an edition of the Merry Widow; the May Company, of New York, are publishing and selling the Merry Widow; the Adelphi Publishing Company are publishing and selling it; the ('ontinental Publishing Company, of New York. are publishing and selling it; Jerome H. Remick & Co., of New York and Detroit, have pubJished and are selling it; and I understand that to-day at Kann's you can get their edition of Die Lustige Witwe (The Merry Widow) for 12 cents; and God only knows bow many other of these very moral and strictly honorable companies are publishing and selling it.
Representative CURRIER. And these publishing houses have appropriated the intellectual efforts of this poor Austrian without compensation ?
Representative LEGARE. They are paying no royalty?
I show you here these various editions of the Merry Widow that have been published by the parties I have named |exhibiting).
Gentlemen, this is the third time I have had the honor to appear before you in opposition to those who are seeking to bring the various mechanical reproducers of music under the domain of copyright. On pages 155 to 101 of the report of the hearings which took place June, 1906, and on pages 321 to 353 of the hearings in December, 1906, I have indicated clearly our reasons for opposing such legislation. In the meantime many events directly bearing upon the subject have transpired in this and foreign countries. In October, 1907, I prepared a statement of facts summarizing these events, and after the decision in the White-Smith-Apollo case by the Supreme Court of the United States, I brought this up to March 8, 1908. I present this in printed form and ask that it be made a part of this record.
The CHAIRMAN. There is no objection to its going in. (The statement is as follows:)
On May 31, 1906, a copyright bill was introduced simultaneously in both Houses of Congress, being known in the Senate as Senate Bill 6330 and in the llouse as H. R. 19853. Passing over the details concerning the conferences held under the direction of the Librarian of Congress prior to the introduction of the bill, at which only those interested in the extension of copyright aflirmatively were permitted to participate, suffice to say, that the bill extended the domain of copyright by giving to the composer or his assigns the exclusive right
To make, sell, distribute, or let for hire any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any work published and copyrighted after this act shall have gone into effect, or by means of any such device or appliance publicly to reproduce to the ear the whole or any material part of such work.
This was paragraph (g).
Joint hearings of the Senate and House Committee on Patents were held June 6, 7, 8, and 9, 1906, and it was established beyond doubt at these hearings that this paragraph and those sections of the bill dependent on it were framed for the purpose of completing a plan whereby one large manufacturing concern was to obtain a complete monopoly of the sale of piano-plaving instruments and rolls. The evidence indicated that a similar plan was on foot in regard to the talking-machine industry. On the showing made the committee promised that nothing would be done at that session and that at the opening of the short session, December, 1906, everyone would be given an opportunity to be heard. On the reconvening of Congress the matter was taken up at once, the Patent Committees of the Senate and House continuing to consider the subject jointly. Public meetings were held in the Library of Congress, December 7, 8, 10, and 11.
It was then shown that the concern referred to above had obtained exclusive thirty-five-year contracts with each member of the so-called Music Publishers' Association, a close association of houses engaged in the publication of music, fifty-two contracts in all, and had obtained similar exclusive contracts with publishers who were not in the association, making eighty contracts in all, with the leading music publishers of the United States.
Photographic copies of the contracts were submitted to the committee, proving conclusively the truth of the charges made. It was further shown that although the paragraph was alleged to be in the interest of composers that no composer had ever been present at the conferences which preceded the introduction of the bill, nor did it appear that any composer had ever initiated the movement, nor had they ever asked for such an extension of the law. It was further shown that the stenographic reports of the conferences which preceded the introduction of the bill indicated clearly that the provisions relating to mechanical reproducers were framed by the counsel for the Music Publishers' Association, and it was only after the matter became public and in the press that any composer took part in the proceedings. It is not contended that composers knew anything about the contracts in question. It is not believed that they were intended to know anything of them. The group of eighty publishers were in practical control of the business of publishing music and the composers of most of them were under contract with some member of the group. It was clearly the intention to monopolize the business of cutting music rolls, and in order to make its monopoly more certain the contracts provided that they were not to go into effect until a number of contracts satisfactory to the manufacturing concern in question should be executed. The letter sent to the various music publishers from the manufacturing concern was also introduced in evidence notifying the different publishers that it had obtained a satisfactory number of contracts, thus completing the deal, and that the contracts were now operative and binding. These matters were thoroughly thrashed out, the Congressional committee giving every interest an opportunity to be heard.
The copyright bill is a broad and comprehensive measure intended to be a codification of all existing laws respecting copyright, and to afford additional protection to authors, dramatists, composers, and others along legltimate lines. Many interests were represented, but
the principal fight was on the mechanical-reproducer clause, which was entirely revolutionary in that in no other country had such a law been passed. On the contrary, in every other country where the same matter had been acted upon legislatively mechanical reproductions were by express statute made free, and the right to so reproduce reserved to the people.
After the public hearings, December, 1906, both the House and the Senate Committee on Patents continued to consider the matter, but separately. On January 29, 1907, Chairman Currier, of the House Committee, reported a bill, H. R. 25133, which had the unanimous support of his committee, consisting of fourteen members. Paragraph (g) was eliminated. The composer, however, was given the right to a royalty on public performance for profit. The Currier bill is, in the main, satisfactory to all who originally opposed paragraph (g).
On the same day Senator Kittredge, by a divided vote of four to three, reported to the Senate bill No. 8190, which is far more stringent than the original bill with its obnoxious paragraph (g). This bill, in subsection (e) of section 1, gives the composer or his assignee the following rights:
To perform the copyrighted work publicly for profit, if it be a musical composition on which such right of public performance for profit has been reserved, as provided in section fourteen of this act; and for the purpose of public performance for profit, and for the purpose set forth in subsection (a) hereof, to make any rearrangement or resetting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced.
In a minority report, signed by Senators Mallory, Foster, and Smoot, dissenting from Chairman Kittredge's report, emphatic disapproval of this section of the bill is strongly expressed, concluding in this language:
We are satisfied that copyrights should not be extended so as to cover me. chanical reproducing devices. In the first place, it seems to be a clear invasion of the patent law and fails to observe the line of demarcation that has always been heretofore preserved between the copyright and the patent law. In the second place, we ought not to take such a radical departure, in view of the fact that all the nations which have considered the question have refused to go so far. Thirdly, manufacturers who have invested millions, relying upon the existing statutes to protect them in their investments, should not be despoiled for the benefit of the few, and, lastly, the public should not be exploited for the benefit of a group who apparently intend and expect to obtain complete control of these industries. We therefore object to the paragraph in question, which is now contained in subsection (e) of section 1.
Chairman Currier's bill, though privileged, was not reached by the House before adjournment.
Frequent attempts on the part of Senator Kittredge to obtain the consideration of the Senate for his bill were unavailing.
On March 3, the night before Congress adjourned, Representative Barchfeld submitted a report disagreeing from Chairman Currier and his other associates of the House Committee on Patents.
With the exception of the clause relating to mechanical reproductions, the two bills are substantially alike. It is said to be the intention to reintroduce these measures on the assembling of Congress in December, and we believe that every effort will be made to force Senator Kittredge's bill through the Senate.