The contracts referred to are, by direction of the committee, inserted in the record, and are as follows: Memorandum of agreement, made and entered into this 21st day of April, 1902, by and between Carl Fischer of New York in the State of New York, party of the first part, hereinafter called the publisher, and the Eolian Company, a corporation organized under the laws of the State of Connecticut, and having a place of business in the city of New York in the State of New York, party of the second part, hereinafter called the Eolian Company, witnesseth :' That whereas the parties hereto have, of even date herewith, entered into an agreement whereby the Eolian Company is to have the exclusive right for all perforated music sheets intended for use in controlling automatic musical instruments or machines for playing musical instruments, in and to the copyrighted musical compositions of which the publisher is the proprietor or as to which he is the owner of any rights, and in and to all those other musical compositions which may hereafter be protected by copyright and the copyrights or rights in which may be acquired by him; and Whereas the parties hereto are desirous of entering into a further agreement with reference to the matters and things expressed in the above-mentioned agreement of even date herewith: Now, therefore, The publisher, for and in consideration of the premises and the sum of $1, lawful money of the United States, to him by the Eolian Company in hand paid, receipt whereof is hereby acknowledged, does hereby covenant and agree that no charge shall be exacted from or be due from the Eolian Company for the manufacture or sale by it, or any of its customers, of any perforated music sheets of either of the kinds aforesaid for playing any of the copyrighted musical compositions which are owned or controlled, or which shall hereafter be owned or controlled in whole or in part by the publisher, until a decision of the court of last resort in a suit which is to be instituted against some manufacturer or user other than the Eolian Company of such perforated music sheets, and not then unless such decision shall uphold the applicability of the United States copyright laws to such perforated music sheets, and not then unless such decision shall uphold the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid. And for and in consideration of the premises the Eolian Company hereby covenants and agrees to pay all proper expenses of conducting said suit for the purpose of testing the applicability of the United States copyright laws to perforated music sheets of the 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 Eolian Company will keep books of account, render statements and pay royalties as provided by the aforesaid agreement of even date herewith, but shall be free from obligation to make payments for the past. And it is mutually understood and agreed by the parties hereto that neither party hereto is to be obligated in any way by any of the provisions of this agreement, or of the aforesaid agreement of even date herewith, until the Eolian Company shall notify the publisher that a number of copyright owners satisfactory to the Eolian Company have made similar agreements with said company. And the parties hereto mutually covenant and agree that all the provisions of this agreement shall be binding upon and inure to the successors, executors, administrators, and personal representatives of both the parties hereto. In witness whereof the publisher has on the day and year first hereinabove written hereunto set his hand and seal, and the Eolian Company has caused its name and corporate seal to be hereunto affixed by its proper officer thereunto duly authorized. THE EOLIAN Co. [L. S.] By E. S. VOTEY, [L. S.] Director and Attorney in Fact. Witnessed by C. HOPFMUller. J. F. BOWERS. Memorandum of agreement made and entered into this 21st day of April, 1902, by and between Carl Fischer, of New York, in the State of New York, party of the first part, hereinafter called the publisher, and the Eolian Company, a corporation organized under the laws of the State of Connecticut, and having a place of business in the city of New York, in the State of New York, party of the second part, hereinafter called the Æolian Company, witnesseth: That whereas the publisher is the proprietor of certain copyrights for musical compositions and the owner of rights in copyrights for other musical compositions; and Whereas the Eolian Company is engaged in the business of manufacturing and selling automatic musical instruments controlled by perforated music sheets, and in manufacturing and selling machines for playing keyboard musical instruments, which machines are controlled by perforated music sheets, and in manufacturing and selling perforated music sheets for such automatic musical instruments and machines; and Whereas the Eolian Company is desirous of acquiring the exclusive right for such perforated music sheets in and to all the copyrighted musical compositions of which the publisher is the proprietor, or as to which he is the owner of any rights, and of all those other musical compositions which may hereafter be protected by copyright and the copyrights for which or rights in which may be acquired by him; Now, therefore, the publisher, for and in consideration of the premises, and of the sum of $1, lawful money of the United States, to him paid by the Eolian Company, receipt of which is hereby acknowledged, and for and in consideration of the true and faithful performance by the Eolian Company of its covenants hereinafter made, does hereby sell, assign, transfer, and set over unto the Eolian Company the exclusive right for all perforated music sheets of the kinds aforesaid in and to all the copyrighted musical compositions of which the publisher is the proprietor, or in the case in which he is the owner of any less rights to the extent of said rights, and does hereby covenant and agree with the Æolian Company to give and secure to it the exclusive right in like manner for all perforated music sheets of the kinds aforesaid in and to all those other musical compositions which may hereafter be protected by copyright, and the copyrights or rights in which may be acquired by the publisher. And the publisher for the consideration aforesaid hereby covenants and agrees, so far as it may be reasonably in his power, to protect the Æolian Company against any claim of any third person in respect to any and all copyrighted musical compositions which may be involved in this agreement and the copyright of which may be owned by the publisher. And the Eolian Company for and in consideration of the premises hereby agrees that it will keep correct and true books of account in which it will set down or cause to be set down entries of all perforated music sheets made by it for playing the copyrighted musical compositions owned or controlled by the publisher; that it will on the 20th day of each and every January and July, during the continuance of the manufacture and sale by it of the perforated music sheets for playing such musical compositions, render unto the publisher a correct and true statement of the number, names, and other designations of such perforated music sheets sold by it during the six preceding calendar months, and that at the time of rendering each and every such statement it will well and truly pay unto the publisher a license fee or royalty of 10 per cent of the list prices made by the United States publishers of the printed scores or copies of such musical compositions, but never more than 50 cents for any one of such perforated music sheets. And the parties hereto mutually covenant and agree that nothing herein contained is to obligate the Eolian Company to pay any license fee or royalty upon such perforated music sheets as shall be made by it in the United States and sold or shipped to any other country, unless it shall have been decided by a court of competent jurisdiction of such other country that the copyright laws of that country shall be applicable to perforated music sheets of the kinds herein mentioned. And the parties hereto mutually agree and covenant that the term "perforated music sheets" is not to be construed as covering the controllers of those musical instruments which are generally known as phonographs or music boxes or hand organs. Anything herein to the contrary notwithstanding, at the expiration of thirtyfive years from the payment of the first license fee hereinbefore provided, the Eolian Company shall not be entitled to licenses under the copyrights thereafter acquired by the publisher, but all licenses existing under copyrights theretofore acquired by him shall remain in force until the expiration of the terms of the copyrights under the terms hereinbefore provided. During the existence of this contract, after the payment of the license fee hereunder, the Eolian Company obligates itself to prosecute diligently, at its own expense and by its own counsel, in the name of the proprietors of the copyright, all infringers of the rights granted to it, the Æolian Company. And the parties hereto mutually covenant and agree that all the provisions of this agreement shall be binding upon and enure to the successors, executors, administrators, and personal representatives of both the parties hereto. In witness whereof the publisher has on the day and year first hereinabove written hereunto set his hand and seal, and the Æolian Company has caused its name and corporate seal to be hereunto affixed by its proper officer thereunto duly authorized. Mr. BURKAN. The consideration for the making of these contracts was the commencement of this action. The contract provides explicitly that whatever rights this company gets, it gets by virtue of a decision favorable to the publisher and composer in the United States Supreme Court. If the Supreme Court decides adversely to the contention of the Eolian Company, then whatever rights it acquires under the contract would depend solely upon the Supreme Court decision. If the court decided in favor of the public, then the company would acquire a right in the publication of the composing publisher for a period of years-some for five years, some for ten years, and some for twenty-five years. These contracts were made in 1902 and the case was started. Governor Hughes appeared for the Æolian Company. Representative LEAKE. Does that contract say that it depends entirely upon a recovery in the United States Supreme Court? Mr. BURKAN. Yes, sir; it expressly says: Now, therefore, the publisher, for and in consideration of the premises, and the sum of $1, lawful money of the United States, to him by the Aeolian Company in hand paid, receipt whereof is hereby acknowledged, does hereby covenant and agree that no charge shall be exacted from or be due from the Eolian Company for the manufacture or sale by it, or any of its customers, of any perforated music sheets, of either of the kinds aforesaid, for playing any of the copyrighted musical compositions which are owned or controlled or which shall hereafter be owned or controlled in whole or in part by the publisher, until a decision of the court of last resort in a suit which is to be instituted against some manuacturer or user, other than the Eolian Company, of such perforated music sheets for the purpose of testing the applicability of the United States copyright laws to such perforated music sheets, and not then unless such decision shall uphold the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid. So you see the consideration for the agreement was the obtaining of a decision of the Supreme Court upholding the contention of this company. The CHAIRMAN. If the court had decided the case in favor of the Eolian Company, then the contract would have been enforced? Mr. BURKAN. Yes, sir. The CHAIRMAN. And all of the 87 publishers would be compelled to have their perforated rolls cut by the Eolian Company? Mr. BURKAN. Yes; that is true. That is admitted. The cost of this litigation was $15,000, and no one composer could test this law. It was too expensive. It required the construction of a great many patents and the examination of a great many experts. It was a very difficult question. Now, the Supreme Court has decided that a composer has no rights in the mechanical reproduction of his compositions; that the present copyright law is insufficient and does not cover these devices. But the court does say: The statute has not provided for the protection of the intellectual conception apart from the thing produced, however meritorious such conception may be, but has provided for the making and filing of a tangible thing, against the publication and duplication of which it is the purpose of the statute to protect the composer. It may be true that the use of these perforated rolls, in the absence of statutory protection, enables the manufacturers thereof to enjoy the use of musical compositions for which they pay no value. But such considerations properly address themselves to the legislative and not to the judicial branch of the Government. As the act of Congress now stands, we believe it does not include these records as copies or publications of the copyrighted music involved in these cases. Mr. Justice Holmes, in a concurring opinion, says: A musical composition is a rational collocation of sounds apart from concepts, reduced to a tangible expression from which the collocation can be reproduced either with or without continuous human intervention. On principle anything that mechanically reproduces that collocation of sounds ought to be held a copy, or if the statute is too narrow ought to be made so by a further act, except so far as some extraneous consideration of policy may oppose. What license may be implied from a sale of the copyrighted article is a different and harder question, but I leave it untouched, as license is not relied upon as a ground for the judgment of the court. The Supreme Court says explicitly that the matter is for Congress to determine. The CHAIRMAN. That is just exactly what the committee wants to determine, and we want to determine it in such a way that not only will the author be protected in some form, but we want the American people, as a whole, to be also protected. Representative LEGARE. Mr. Burkan, just whom do you represent? Mr. BURKAN. I represent the publishers, and I also represent Mr. Victor Herbert. I have been his counsel for a great many years and his interest is my interest. Representative LEGARE. Have you done any work for the Eolian Company? Mr. BURKAN. No; I never have. Representative LEGARE. Did you ever discuss this matter with them or their representative? Mr. BURKAN. Never, sir; except that in this case in the United States Supreme Court I submitted a brief in behalf of Mr. Victor Herbert, and I was naturally anxious that the court should decide in favor of the composer. I have been representing musical authors and publishers for a number of years. Representative LEGARE. You are here as the attorney for the musical publishers, are you? Mr. BURKAN. Yes, sir; and I also represent Mr. Victor Herbert. He is the only composer here, and he represents the composers. Now, for the purpose of determining the character of the right the Eolian Company would have acquired, we find that 87 contracts were made in 1899, and we find that 117 publishers did not sign the contract with the Eolian Company. The CHAIRMAN. Be absolutely fair about this. Does not the record show that the 87 were the principal publishers of the United States, with the single exception of two? Mr. BURKAN. They were the leading publishers, although I should not say that, because Boosey & Co. has one of the largest catalogues in this country, and they did not sign any such agreement. The CHAIRMAN. I know you do not want to be misleading. Mr. BURKAN. No, sir. 1 The CHAIRMAN. And you do not want to mislead the American people. Mr. BURKAN. No, sir. The CHAIRMAN. Does not the record show, as I said, that the 87 publishers with whom the contracts were signed were the leading publishers of the United States, with the exception of two, who were leading publishers? Mr. BURKAN. The two were the John Church Company, of Cincinnati, and Boosey & Co. But I have here 117 postal cards of leading publishers who did not sign this agreement. I also have a schedule here showing that they represent 503,596 copyrighted compositions, which were controlled by parties who were in no way, shape, or manner connected with the Eolian Company and who signed no agreement with it. The CHAIRMAN. The Eolian Company felt perfectly satisfied that they had sufficient contracts signed to force anyone else that was on the outside into signing similar contracts if necessary. Mr. BURKAN. I did not quite catch that question. The CHAIRMAN. Did not the Eolian Company, in a letter to these publishers, state that they had a sufficient number of contracts already signed? Mr. BURKAN. Yes, sir; they did. At this point I want to offer in evidence this schedule, showing the names of 117 publishers, who control 503,597 compositions, who did not sign the agreement. The CHAIRMAN. It will go into the record without objection. The schedule referred to was, by direction of the committee, inserted in the record, and is as follows: Chappell & Co. (Limited), 37 West Seventeenth street, New York. |