ing sound records. Here is a report it rendered to the same G. Ricordi & Co., a publisher. As I said, the publisher is but the business agent for a number of composers. The report for the quarter ending March 30, 1924, is two records of "Nobody knows two records of "Hard trials"; three records of "Ask of the stars," and three records of "Zephyr.'

I make the same observation with respect to that report, that it is inconceivable that a company would manufacture one, two, or three records, or even would waste its time in devoting its energy to any such thing as making a few records.

We now come to the Aeolian Co., a company well known as a manufacturer of rolls. This roll company furnished a statement to the same publisher for the quarter ending December 31, 1923, on the "Cecile waltz," five rolls; I am going to submit a list of reports from the same company to the same publisher, showing that the reports range from 13 to 16 rolls of a composition.

(The list submitted by Mr. Burkan is as follows:)

Quarter ending Mar. 31, 1924:

66

Danse Negre

"Cecile waltz

Do..

Mr. PERKINS. Mr. Burkan, what is the explanation for that? Mr. BURKAN. The explanation is simply this, that these manufacturers, instead of making their returns on the parts manufactured, as the law called for, simply made the returns upon the parts sold. That is what that means. They never intended to carry out the law, and they never did.

These manufacturers, under this law, have gotten greater latitude, greater rights, enjoy greater privileges and immunities than any other reproducers of literary works. How have they shown their appreciation for all this? Here is an illustration:

I had a case against the Columbia Graphophone Co., a manufacturer of sound records, that has since gone into bankruptcy, yet I wish to say here that I understand from their counsel that they paid the composers the royalties that accrued from the manufacture and sale of the records that they produced.

Mr. REID of Illinois. Do you know of any companies going into bankruptcy on account of radio?

Mr. BURKAN. I can not say; I don't know.

Mr. REID of Illinois. You remember your former testimony. Mr. BURKAN. I think that most of these companies went into bankruptcy because it was profitable, because it gave them a chance to compete unfairly with other recording companies.

They did not have to pay the 2 cents royalty, and they had the best of it over their competitor by 4 cents.

Mr. BLOOM. From your statement, Mr. Burkan, doesn't it seem to be a contribution more than anything else?

Mr. BURKAN. It was a vicious practice. Here is a law that is very weak, ineffective, inefficient, full of loopholes without any adequate remedies, a mere encouragement to crime. It says to a man, "Go and steal the composer's property. You can not be punished for stealing it."

An objection was made here by Mr. O'Toole, of the Motion Picture Theater Owners' Association, to a couple of the provisions in this bill. He took particular exception to section 39, which is a reenactment of section 28 of the existing law. Section 28 makes a willful infringement for profit a misdemeanor, punishable as such. I think it is not amiss for me to tell you why section 28 was put into the law. Before 1909, it was not a crime to willfully and for profit pirate a copyrighted work. The cost of the physical production of a sheet of music is very small. The career of a popular song is usually very brief, and in case of a sensational, phenomenal song hit, the returns are sometimes large. The cost of production being small, while returns in the cases of sensational, phenomenal song hits being large, music piracy became an attractive field for fly-by-nights, petty grafters, and dishonest persons who had no regular places of habitation, no financial responsibility, and for whom injunctions, damages, and civil penalties had no terrors. A song is made popular by the expenditure of a great deal of money in advertising, bringing it to the public's notice by advertisements, exploitation, by the gratuitous distribution of expensive band and orchestra arrangements thereof, and by resort to other well-known methods of securing publicity for a song.

When a publisher had succeeded in creating a public demand for his composition, the pirate made his raid by reprinting thousands of copies of the song, flooding the market with his counterfeits and selling them to standkeepers, jobbers, and dealers. The counterfeiting was usually done by means of photoengraved plates, so that the ordinary purchaser could hardly detect the difference between the genuine and the counterfeit copies. The cost for reproducing two or three thousand copies by this process was about $25. The counterfeiters jobbed them for 6 cents a copy. The legitimate publishers received 12 cents a copy, out of which they had to pay the royalty of the composers, the royalty of the lyric writers, the cost of papers, printing, etc. The copyright law was entirely insufficient to cope with the situation. The pirates carried on operations throughout the country. The courts had no power to grant omnibus injunctions to cover every composition in a publisher's catalog. An injunction to restrain the piracy of an individual song, was of no avail, because by the time service was effected on an elusive character, he succeeded in flooding the market with reprints. But even if he were served with the injunction in time, his numerous confederates continued the operations where left off.

This evil had gotten to be quite a practice, until the revision of 1909 took place, Congress desiring to put a stop to the practice, put teeth into the law by making piracy a crime. Since 1909, the practice has been entirely wiped out.

I have endeavored to draw a similar picture with respect to the mechanical reproduction of copyrighted songs.

What has been the liberality of these responsible companies you speak of?

I should like to call your attention to the case of Gitz Rice, a Canadian by birth, who enlisted in the first Canadian contingent of the British Army during the war. He was wounded and gassed in November, 1916, and was thereupon discharged from military service. With the intent of making New York City his domicile, and future residence, he came to this city where he took up his residence and continually resided.

In response to an invitation given by the British Recruiting Mission, he, without pay, made speeches while clad in the uniform of the Canadian Army, in various parts of New York City, aiding or attempting to aid enlistments.

While doing this, however, he followed his chosen profession as a composer of music and wrote the greatest of the war songs, Dear Old Pal of Mine.

The Columbia Graphophone Co., although it sold many thousands of records of this song, refused to pay any royalties to Gitz Rice, upon the ground that he was a Canadian citizen, and that country had no copyright treaties with the United States.

I brought a suit in Gitz Rice's behalf (G. Ricordi & Co. v. Columbia Graphophone Co., 258 Fed. 72). The court held that the copyright in the song should be sustained for the reason that Gitz Rice was domiciled in this country at the time of his application for copyright and the publication of the composition.

The Columbia Graphophone Co. appealed; the decree of the court below was affirmed. (263 Fed. 354.)

The court granted an injunction, restraining the Coulumbia Graphophone Co. from manufacturing sound records of "Dear old pal of mine," until it shall have served notice of its intention to use the composition, in the manner prescribed by section 25, subdivision (e), of the copyright act, until it shall have paid the damages awarded by the decree, which were at the rate of 2 cents per record manufactured.

This case is but a sample of the resistance, opposition, niggardliness and nastiness displayed by the manufacturers, with desire to do nothing to give the composers what they were lawfully entitled to, and what the committee on patents of the House intended they should get by the act of 1909.

Mr. REID of Illinois. Was your suit by the publisher or by the author?

Mr. BURKAN. The suit was brought by the publisher, because the copyright in the song was in its name. Mr. Gitz Rice, that sounded soldier, appeared in court, took the witness stand, told his story, and testified how this company had taken his song hit, sold thousands and thousands of records of his song hit, and had not paid him a dollar. Mr. REID of Illinois. Had he originally transferred and assigned his rights to the publisher?

Mr. BURKAN. Yes.

Mr. REID of Illinois. All right. Then he was through, was he not?

Mr. BURKAN. No; he was not through, because the contract between Rice and his publisher provides that he shall receive a fixed royalty upon every printed copy of the sheet music sold and that he shall receive one-half of the moneys derived from the mechanical reproduction of his works.

Mr. REID of Illinois. Then the publisher in that case did not take advantage of the composer?

Mr. BURKAN. No.

Mr. REID of Illinois. All your statements have been to the effect that on payment of $10 or $25 they would take the rights away from the composer.

Mr. BLOOм. He never made that statement.

Mr. BURKAN. You won't find a solitary statement to that effect emanating from me.

Mr. REID of Illinois. The composers said it, and that is the reason they appealed for our assistance. The statement of the composers was that they got $25 and $50 and the publishers made millions out of it.

Mr. BURKAN. The fact is, however, that in this particular case Lieut. Gitz Rice was vitally interested in getting these mechanical royalties. After I succeeded in winning my case, the Columbia Graphophone Co. refused to pay upon the records that were sold in Canada, and reproduced from the copper stampers made here. I proved that the copper stamper from which was pressed those records was made in this country; that the song was recorded and sung in this country, and then shipped into Canada. They fought out that issue before the master. They lost, and appealed to the district judge. They lost again and finally paid up. (G. Ricordi & Co. v. Columbia Graphophone Co., 270 Fed. 822.) There has been that resistance, that unwillingness to yield up what was right, just and fair; that desire to grab this soldier's creation for their own enrichment and to deprive this man of the little protection that this act of 1909 sought to give him.

Mr. REID of Illinois. In order to clear the records, Mr. Burkan, among the songs that were originally sold outright by the composers, and later earned large royalties, is Silver Threads Among the Gold; did Danks-although Silver Threads Among the Gold had earned $25,000, in reality Danks received only $15 for it?

Mr. BURKAN. That is not true, because there have been litigations in the courts between Danks's heirs and Hamilton A. Gordon, the publisher of this song, over the nonpayment of royalties accruing from the publication and sales of copies of sheet music of this song. The words of the song were written by one Rexford and the music by H. B. Danks. The copyright was secured in 1873. It was renewed in 1901 by H. B. Danks, and was extended in 1915 in the names of the widow and children of H. B. Danks. Gordon published and sold the musical composition under an agreement between H. B. Danks and Gordon. The H. B. Danks estate secured judgment against Gordon for nonpayment of these royalties. I can produce court citations of these litigations.

Mr. REID of Illinois. I wanted to see if you had switched away from your original proposition that the composers are able to take care of themselves with the publishers. If you have, we will get one step forward.

Mr. BURKAN. I have no complaint to make regarding the rela-• tions between the publishers and the composers. There is no complaint before this committee that the composer is being harshly dealt with by the publishers.

Mr. REID of Illinois. Yes; there is.

Mr. BURKAN. Neither this nor any other copyright bill can rectify that. This copyright bill gives to the composer the absolute copyright in his works, and the sole and absolute control of all rights secured under that copyright to do with them as he will. He may, under section 15 of the bill, assign, grant, or mortgage the entire copyright of any separate right or rights secured under section 12 of the bill and may grant any interest in any such right or in the entire copyright by license. If he is foolish enough to turn over the entire copyright to a publisher, there is certainly no way by which we can control his action. If I have a fortune and give or throw it away, the law can not prevent me from so doing unless I am found to be a lunatic or incompetent and a committee of my person and property is appointed to look, after my affairs. Under this bill you give to the composer the sole and absolute right to the control of his work, and of the copyright secured therefor, and of the separate rights which accrue to him by virtue of such copyright. If he makes a foolish agreement with a publisher or somebody else, that is his misfortune, and there is no way of controlling his disposition thereof by law. You can not go beyond giving him the fullest and most adequate control of his property free from any restraint or restrictions. If he squanders it, if he fritters and bargains it away by foolish agreements, I do not see that you can do anything or that I can do anything to protect him against himself. Mr. Solberg in this bill, in very clear and precise language, has provided for the sole control of the copyright, as well as the separate rights thereunder, by the author absolutely without any limitation whatsoever. [Reading:]

It was this situation that your committee had in view when they sought to formulate a law which would give to the composer the exclusive right to prohibit the reproduction of his music by mechanical means on the part of anybody if he desired, to secure to him adequate compensation from all reproducers if he did not desire to exercise this exclusive right to prohibit, and to prevent the establishment of a great trade monopoly. We fully believe that all this will be secured under the provisions of subsection (e).

That is what the committee believed that the act of 1909 would do. That it would give the composer both protection and adequate compensation, and in both aspects the law has failed lamentably. He has not had the protection; he has been cheated out of his property; he has been despoiled of his property and he has been victimized by these manufacturers.

I will tell you a little scheme of theirs to drive the composers into line. Once in awhile they will get hold of a recalcitrant, a fellow who won't yield to their demands to depart from the requirements of the law. Then there is the fellow who plays into their hands, who will stand for their dictation, who will yield to their demands, who will surrender his rights. They will compensate the latter by slapping on the back of a record like Irving Berlin's greatest song hit of the day "All Alone," some song of that weakling that has not got the commercial qualities, that has not got the popular appeal of "All Alone." But, being on the back of "All Alone" he travels along with it and reaps and collects royalties on the strength of "All Alone." Or they will punish the man who stands and fights for his rights, by excluding him from that benefit or privilege.