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every play that goes out means a great loss of employment. There are the stage mechanics and all kinds of machinists, as well as the actors.
The CHAIRMAN. Are these reproductions operated by people on the stage?
Mr. Ligon Johnson. All that is needed is one boy to turn on the machine, and one girl as a ticket-taker. We are not to be understood as in any respect objecting to the picture machines. We believe them to be excellent institutions, and desire them to be fostered as well as possible.
One other word. There was only one gentleman upon the other side who opposed the right of an author to full compensation. I was reminded by that of a little Victor illustration—" He Knows His Master's Voice." Very often an expert sees things in different ways according to the conditions.
The CHAIRMAN. Your time is up, Mr. Johnson.
Mr. LiGon Johnson. I have noticed in the record to-day, and it is filed, a complete booking arrangement of a cut that I exhibited to Mr. Currier--a theatrical exchange, which will be for your inspection in the record.
To go back to Mr. Walker, the one person seeking to deny to the author the right to compensation, I want to quote what Mr. Walker has to say on the rights of an author.
Mr. WALKER. He has said nothing whatever.
Mr. Ligon Johnson. I will leave it to the committee. I will just ask leave to put this in.
(The article is as follows:) Sec. 152. The right of property which an inventor has in his invention is excelled, in point of dignity, by no other property right whatever. It is equalled, in point of dignity, only by the rights which authors have in their copyrighted books. The inventor is not the pampered favorite or beneficiary of the Government or of the nation. The benefits which he confers are greater than those which he receives. He does not cringe at the feet of power nor secure from authority an unbought privilege. He walks everywhere ereet and scatters abroad the knowledge which he created. He confers upon mankind a new means of lessening toil or of increasing comfort, and what he gives can not be destroyed by use nor lost by misfortune. It is henceforth an indestructible heritage of posterity. On the other hand, he receives from the Government nothing which cost the Government or the people a dollar or a sacrifice. He receives nothing but a contract, which provides that for a limited time he may exclusively enjoy his own. Compared with those who acquire property by devise or inheritance; compared with those who acquire by gift or marriage; compared with those who acquire property by profits on sales or by interest on money, the man who acquires property in inventions, by creating things unknown before, occupies a position of superior dignity. Even the man who creates value by manual labor, though he rises in dignity above the heir, the donee, the merchant, and the money lender, falls in dignity below the author and the inventor. The inventor of the reaper is entitled to greater honor than his father who used the grain cradle; and the inventor of the grain cradle is entitled to greater honor than his ancestors who, for a hundred generations, had used the sickle. Side by side stand the inventor and the author. Their labor is the most dignified and the most honorable of all labor, and the resulting property is mostly perfectly theirs. (Walker on Patents, 4th Ed., 1904, pp. 139, 140.)
STATEMENT OF MR. WILLIAM KENDALL EVANS.
Mr. ,Evans. Mr. Chairman and gentlemen of the committee, I represent the Words and Music Club. It has been explained to you whom they represent. I wish to say to you, as Mr. Williams has told you, that we are in favor of coming to an agreement with these mechanical-device people absolutely. I am now speaking not from the publishers' side, but from the heart of every song writer in the United States. We are in favor of reaching an agreement between these mechanical-device people and ourselves, and we would like to have the opportunity to get together with these people, and I think that if we get that opportunity we can make an agreement in fifteen minutes whereby we can place before this committee something on which the committee can work as a base with reference to the question of what would be right in the way of paying royalties to the author.
I think that we ought to have a meeting at which we can determine certain findings or agreements to be submitted to you. And if you find a law fixing a stipulated royalty to be inconstitutional, then we want you to pass a law by which the song writers will be protected and everybody protected against monopoly.
The larger the number of people who handle disks with our songs on them the better we like it. Everybody will admit that. We want to get with them and form something on which you can protect us. When a man steals our songs-not only steals from the author, but from the mechanical-device people--put him in jail, and let him stay there until he understands that his fellow-men are entitled to protection.
Mr. Victor HERBERT. I wish to emphasize again what has been said in regard to the proposition as to composers and this company. No composer that I know of has any agreement or arrangement with the company, nor was there ever such agreement. Any insinuation that there was a secret understanding or agreement is absolutely without foundation. On that I give you my word of honor as a gentleman.
The CHAIRMAN. You are speaking now from the point of view of the author?
Mr. VICTOR HERBERT. Of course. I am not responsible for other people's actions. And I must emphasize again what I have stated, because the statement to which I refer has been repeatedly made.
Representative CURRIER. If it has been made, it has not made enough impression on me so that I remember it. I do not remember any charge that the composers had any such agreement.
Mr. Victor HERBERT. Then I am agreeably disappointed.
Representative CURRIER. If such charge was made, I do not recollect it.
STATEMENT OF MR. DENNIS F. O'BRIEN, REPRESENTING MR.
GEORGE M. COHAN.
Mr. O'BRIEN. Mr. Chairman and gentlemen of the committee, I simply wish to say, on behalf of Mr. Cohan, who is a composer, that he has never had a contract with anyone to tie him up to the Æolian Company or anybody else. I know nothing of the publishing end of
this business, but am acquainted with the men and with their rights. I am not here to oppose universal license, if you think it the proper thing. But I wish to say for your consideration, namely, that the ambition of an author, whether of a song, or something greater than a song, is to write something that will eventually get on the stage, because therein is greater income and greater honor.
If universal license is going to enable the talking machines to reproduce his work so as to lessen the value of his songs to a majority of the people, then you are going to hurt his interests. Mr. Cohan has produced a great many pieces. I do not say this in any spirit of bravado for him, but it is well known that one of his pieces has been a splendid seller.
There is a company in New York, the Colson-Mitchell Company, whose advertisement has gone into this record. They are booking now two nights a week (and in future it will be three nights a week) his plays, and they advertise that they will protect the man who books with them; in other words, practically stating that there is no infringement of the law.
Now, with reference to “Forty-five Minutes from Broadway” and other pieces, here is a condition that I wish you would bear in mind
The CHAIRMAN. Reproduction by mechanical devices, do you mean?
Mr. O'Brien. No, sir; by words and music. There is no reason why the Æolian Company and all those other companies that talked to you this afternoon and who alleged the threatened destruction of their business, can not make their contracts with Mr. Cohan and others for their entire rights, and we will make contracts with them if they will make proper returns. There are a number of popular composers who are tied up.
Representative CURRIER. Composers have not been charged with being tied up.
Mr. O'BRIEN. Well, it is the same thing.
ADDITIONAL STATEMENT OF MR. NATHAN BURKAN.
Mr. BURKAN. Mr. Chairman and gentlement of the committee, on this point of writings I propose to prepare a brief and send a copy to each member of the committee.
My friends have insisted here that the Æolian contracts still exist. One gentleman said that $75,000 was raised to influence public sentiment, and stated to you that he had a contract that provided that in case this legislation was passed the Eolian contract would be revised. I have in my possession now another contract of the Eolian Company. These contracts are all printed forms. I would like to have the committee examine the originals.
The CHAIRMAN. The committee have originals.
Mr. BURKAN. The words of my friend were “ In the event of a statute being passed, it would inure to the benefit of the Eolian Company.” In a legal argument the rule of construction is very simple. Two documents executed simultaneously are considered as one paper. In the contract I hold in my hand it is provided that no royalty
Representative LEGARE. Why did they make two contracts?
Mr. BURKAN. I have not the slightest conception. If I had been attorney no such contract would have been made.
Representative LEGARE. You heard what was mentioned this morning. One speaker said that clause was still in existence in one copy but was not in the other.
Mr. BURKAN. Which clause?
Mr. BURKAN. Section 44 of the Kittredge-Barchfeld bill sets forth
That each of the rights specified in section 1 of this act shall be deemed a separate estate, subject to assignment, lease, license, gift, bequest, inheritance, descent, or devolution.
The purpose of this section is to give protection to the composer. Now, upon what theory does any man come here and say that these publishers would get these publication rights? Do you mean to say that these composers could not go out and deal with such of these men as they pleased as they could do with the publishers?
The CHAIRMAN. Do you know how many compositions are being used by these mechanical devices?
Mr. BURKAN. Not exactly, but if you pass this bill the people will have to spend more money.
The CHAIRMAN. Do you claim that the sale of sheet music had fallen off in 1906 ?
Mr. BURKAN. I was speaking of the effect—I do not say that the sales have fallen off.
Representative CURRIER. Would you deny that the sales of sheet music have increased during the past few years? Mr. BURKAN. Well, our people are getting more cultivated every
I have nothing to do with the Æolian Company. I do not hold a brief for them.
The CHAIRMAN. You must recognize the fact that in making laws it is the duty of Congress and its committees to take into consideration all interests.
Mr. BURKAN. Certainly. If it could be established that this compulsory license is constitutional, I, for one, would advise my people io agree to it. I do not want to oppose anything that is fair or reasonable. I have no desire to injure anybody.
Representative CURRIER. Speaking for the people you represent, if we report a bill out of the committee into the House, will you support it in that form?
Mr. BURKAN. If we agree to its constitutionality, and if we get an assurance of the manufacturers that they will not attack the bill on the ground that it is not a writing or because the compulsory license is unconstitutional.
Representative Currier. You absolutely reserve the right to do that (and this is an important matter, possibly). If we report a bill out of the committee giving you a reasonable percentage royalty, will you loyally support it in the House?
Mr. BURKAN. If we get protection enough to know that these men will pay royalty.
Representative Currier. We will work that out. If they attack the bill, you reserve the right, of course.
Mr. BUKAN. When they came here first some of them said that they were opposed to all our rights, and said we had no rights.
Representative CURRIER. And yet when we suggested that here. you said in your New York interview it was absurd and unconstitutional.
Mr. BURKAN. I said it was unconstitutional. I did not use the word “ absurd.”
Representative CURRIER. I realize, of course, that you might have been misrepresented in an interview..
Mr. POUND. I hold in my hand a book entitled “The Question of Copyright,” by Mr. Putnam, second edition, published by Putnam's Sons, 1896. At page 65 in that book is a discussion of a scheme of copyright upon the compulsory-license plan. There the suggestion is made that stamps be issued; that a 2-cent stamp should be bought and no perforated roll sold without having the stamp on it. Then a return should be made each month as to what perforated rolls the manufacturer had put that stamp on.
Representative CURRIER. It seems to me, Mr. Pound, that it would be exceedingly helpful to the committee if Mr. Evans's suggestion could be adopted, and you people could all get together and come to the committee with some proposition.
Mr. John J. O'CONNELL. Mr. Ligon Johnson and I have had some talk to-day, and have been very frank with one another. I have had some talk with Mr. Burkan also. The suggestion was made by some one of us that we might get together and decide whether all the interests could not agree on some plan, simply leaving the working out of the details until all the parties could get together, and try to work out what would be best and reasonable for the Piano Manufacturers' Association, which I represent.
I will put myself in writing, and I have full power to do so-in any kind of writing. I understand that Mr. Ligon Johnson is willing that the dramatic producers may sign some kind of statement with me. Mr. Klein
the same. Mr. LIGON Johnson. I will say the same for the dramatic authors and Mr. Williams's music club, and if we agree on anything it will be signed and handed to this committee.
Mír. Evans. That was just my idea. Let Mr. Herbert have the right to express his ideas of what he should receive, and I think that we can come to some agreement-I do not suppose it could be done in fifteen minutes, nor, perhaps, in a week, but I really believe that we could, in time, come to some agreement, and let the committee here work out the final details in order to get a law which will be constitutional, and which will protect Mr. Herbert and also protect everybody else.
Representative Currier. If you reached an agreement it would settle the matter and you would get a bill.
Mr. BURKAN. Do I understand that Mr. Walker's people and other people here will not be attacked?
Representative CURRIER. We can not enact any bill here that will not at some time or other reach the Supreme Court of the United States.
Mr. O'CONNELL. I can be here on behalf of the people I represent for three or four or six days, and will devote all my time with the other gentlemen toward working out a scheme.
The CHAIRMAN. So far as the committees of the two Houses are concerned, whatever you work out will be received with pleasure and shall have careful consideration.