Of course, you might say, and properly so, that it is the manufacturer's right to put on the back of a record of a song hit any song they please. They have the control of their records, and they can place upon both sides whatever they see fit. But that has been the method for meting out punishment to the man who insists upon strict compliance with the law-by excluding his weak song on the reverse side of a song hit, and according that privilege as a reward to the one who has readily yielded to their demands.

Mr. REID of Illinois. This is not the same Nathan Burkan that the grange and the churches of the West complained about? Mr. BURKAN. The churches haven't complained against us.

Mr. REID of Illinois. You are the same Nathan Burkan who testified in the grange matter?

Mr. BURKAN. I stand upon everything I have done or said in connection with any provisions of the copyright act. There has never been anything unfair done by me or the persons I represent in connection with the exercise of their rights under the copyright acts; there has never been any unfair exercise of these rights by the society; and, furthermore, Mr. Reid, I defy a single cabaret owner, or a single restaurant keeper, a single dance hall man, or a single motion picture proprietor to say that he has ever been refused a license to play the music in the repertory of the society upon the payment of the pitiful royalty of not less than $30 a year, nor more than $350 per year.

Mr. REID of Illinois. You are switching away.

Mr. BURKAN. I am not switching away. I will play with you to the bitter end.

Mr. REID of Illinois. There is no "bitter end" to that. This is sweet. You took advantage of every technical right to make the motion picture owners, the grangers and the churches pay your society for the reproduction in those places?

Mr. BURKAN. I did not do anything of the kind. The granges and the churches never paid a cent to the society. It was not a technical right; it was a right that the musical author has enjoyed since the dramatic copyright act of 1856 and such right has been enforced since 1856. It was always intended, surely at least since the act of 1897, that the right of public performance of musical works shall be in the man who has created the work.

Mr. REID of Illinois. You heard complaint about the companies driving the widow out of the motion-picture business?

Mr. BURKAN. That is a falsehood; in the first place, it was shown that the party in question was no widow; in the second place, it was shown that she was not driven out of business; absolutely without foundation, and just as baseless as this other talk that if Congress had given to the musical composer control of their mechanical rights a music trust would develop. I will say that is handling the truth very carelessly.

Mr. REID of Illinois. I don't handle it at all.

Mr. BLOOм. That is all a matter of record.

Mr. REID of Illinois. This fellow switches his tune.

Mr. BLOOM. Mr. Chairman, where there was a performance for profit, that is a different thing. But whenever any of the Grange societies have asked to use any of the songs of the Authors and Com

posers' League, they were never charged, and that is according to the hearings of this committee. You will find it in the hearings before. Mr. PERKINS. I suggest that we have enough to do in trying to settle this proposition without that.

Mr. REID of Illinois. I want to move to report out the Newton bill. I make a motion to report out the Newton bill.

Mr. PERKINS. I will back you up in that later. We will just now go ahead with this. Don't you think we have all we can do to handle this bill?

Mr. REID of Illinois. It is more than we can handle at any time. Mr. BURKAN. The courts had occasion to consider this report of the committee accompanying the act of 1909, in the case of M. Witmark & Sons v. Standard Music Roll Co. (221 Fed. Rep. p. 379), where the court said:

We may concede that the great purpose in the enactment of the copyright law of 1909 was to bring together all the statutes applicable to the subject of copyright, and in many instances to enlarge the protection secured by copyright, particularly by protecting the works of authors and composers which had theretofore been regarded as insufficiently protected * * *

Mr. HAMMER. Is that a district court or circuit court?

Mr. BURKAN. It is the circuit court of appeals for the third district, so, from the committee's report, from the expression of the decisions, you find that the chief purpose and intent of that whole legislation was to give to the composer the fullest sort of protection against the use of his material upon these rolls and records. The only thing that the committee worried about was a trust-the formation of the socalled mechanical music trust.

But what did that result in-a total deprivation of the composer of his property right, the introduction in the mechanical instrument business of very bad influences, the bringing into it of irresponsible persons, persons of no character, principle, or standing, the loss of the composer's property, the passage of class and discriminatory legislation with no ample and adequate provisions for the protection of the composer's rights.

Mr. REID of Illinois. Could I break in?

Mr. BURKAN. Surely.

Mr. REID of Illinois. I think you said it was essential to the welfare of the world that these songs be gotten to the people?

Mr. BURKAN. Yes, sir.

Mr. REID of Illinois. Under this bill would the man have a right not to publish his song and keep it from the world?

Mr. BURKAN. He certainly would.

Mr. REID of Illinois. Then, is he not protected that way?

Mr. BURKAN. He is not protected, because he has a wife and children that he must take care of, a family that he has to feed-children that he must clothe, nurture, and educate. You might as well say, "Wipe out all copyright laws," because every author can keep his book in his pocket or in his safe, or rely upon his common-law rights for the protection of his works before publication.

A VOICE. He has that in the present law.

Mr. REID of Illinois. Do you think we can compel every author, if this bill is passed, to give his work to the public?

Mr. BURKAN. No. But you should do no more nor less for the composer than the law does for him who writes for motion pictures,

magazines, or newspapers-treat him upon the same basis of equality and impartiality. Give the musical composer the same control over the reproduction of his songs in rolls and records as you give the author whose works can be used for reproduction in motion. pictures.

Mr. REID of Illinois. You believe if a man has a patent and don't use it that he should be compelled to permit its use by anyone else. Mr. BURKAN. There is no such law.

Mr. REID of Illinois. England has got that law, has it not?

Mr. BURKAN. But we are not in England; we are in the United States.

Mr. REID of Illinois. You want to adopt the Berne convention over here, which is part of it.

Mr. BURKAN. There is no provision of our law which compels a patent owner to yield up his patent rights because of nonuser.

Mr. BLOOM. I suggest that if Mr. Reid wants to ask questions and Mr. Burkan wants to answer them that I would request Mr. Reid to sit up at this end of the table.

Mr. REID of Illinois. Come on down here if you want to get in this.

Mr. HAMMER. I don't hear as well as some people, and I find difficulty in keeping track of the colloquy down there.

Mr. BURKAN. With reference to the mechanical music trust you have heard so much about

Mr. REID of Illinois (interposing). You don't want to hear me. Mr. BURKAN. The roll manufacturers adopted a plan of putting the words of certain popular songs on the roll, so that anyone who played the roll could follow the song by the text printed upon the roll, contending that under compulsory license features of the law they had such rights, without the consent of the copyright proprietor. The music roll manufacturer refusing to discontinue such practice, a suit was started in their behalf entitled M. Whitmark & Sons v. Standard Music Roll Co. (213 Fed. 432, affirmed in the circuit court of appeals, third circuit, 221 Fed. 376). The court held that with respect to compositions copyrighted after 1909 such reproductions of the words upon the rolls were illegal.

To the same effect was F. A. Mills v. Standard Music Roll Co. (223 Fed. 849, affirmed Standard Music Roll Co. v. F. A. Mills (Inc.), 241 Fed. 316). Consequently, under these decisions, it has been definitely established that roll manufacturers may not print the words of songs upon the music rolls without first securing the consent of the copyright proprietor and paying him for such license a royalty fixed by the mutual agreement of the parties. The roll manufacturers to-day do not make any rolls without printing thereon the words of the song reproduced by such rolls. No roll manufacturer has found any difficulty in securing licenses from composers and publishers to reproduce upon such music rolls the words of their songs. Composers and publishers have rights which they wish to sell. Roll manufacturers are seeking the rights which they wish to purchase. No monopoly in the use of words upon rolls exists or ever was attempted, although the copyright proprietor has the sole and absolute control of the words of his composition for such purpose. Mr. HAMMER. Would there not be under this law?

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Mr. BURKAN. There could not be because if a group of men combined together to turn over the entire récord or roll business to one concern the Federal statutes would have no difficulty in tackling those people and handling the situation very satisfactorily.

In the now famous bathtub cases (Standard Sanitary Manufacturing Co. v. United States, 226 U. S. 20) the defendants, manufacturers representing 85 per cent of the enamel ware, such as bathtubs, wash bowls, sinks, closets, etc., manufactured in the country, covered by letters patent, entered into a trade agreement under which the manufacturers combined and subjected themselves to certain rules and regulations limiting out put and sales of their product, quantity, vendees and price. The Supreme Court declared that although the agreement was liveried in legal forms to give color of right to illegal practices, the purpose of the combination was illegal, and denounced it as operating in violation of the Sherman Act. The fact that the agreement involved the right of all parties thereto to use a certain patent did not alter the situation.

Similarly the agreement of a large number of book publishers of copyrighted books to control the book-publishing trade was declared. illegal in Strauss v. American Book Publishing Association (231 U. S. 222).

It is a farce to come before this committee and say, "There is going to be a mighty music trust," because it would fade into insignificance

Mr. HAMMER. I did not say there was.

Mr. BURKAN (continuing). In the face of an attack of the Department of Justice on the Federal Trade Commission. The difficulty is this: Committees are influenced by reckless statements. A man will get up and say there is going to be a mighty, powerful music trust if you do thus and so. What about your Department of Justice, your Federal Trade Commission, your Sherman Act? It handled the Standard Oil dissolution pretty well; it handled the Harvester Trust pretty well; and it has handled every other combination pretty well.

Mr. HAMMER. Not much.

Mr. BURKAN. It took care of the vicious motion-picture monopoly-the famous combination known as "The Motion Picture Patents Co." That combination was dissolved and driven out of business, and the motion-picture field left free to all, by the decision in the United States v. Motion Picture Patents Co. (225 Fed. 800).

The department is sufficiently competent to cope with any combination of music owners or a similar group. No one concern can control the output of music.

Now, let us see that has been accomplished by the act of 1909 toward the prevention of a mechanical-music trust. All through the report there is reiterated this apprehension, this fear and worry about the formation of a mechanical-music trust.

After the bill of 1909 was enacted into law, the Victor Talking. Machine Co., which, by the way, claims it has paid a million dollars a year in royalties, and I wonder if those million dollars include the royalties at the rate of 25 cents per record paid to Caruso and his estate and the 5 cents per record paid to McCormack for singing the songs recorded by it and the other royalties it paid to the exclusive.

artists for their renditions of the songs it produced, at once tied up a number of great artists by exclusive contracts.

Congress was very careful to provide that in case the composer himself reproduced his songs upon records or rolls or permitted others so to do, that every other manufacturer should have a similar right to make such use, but it did not provide that in case a manufacturer had an exclusive contract with an artist like Caruso for the singing by Caruso of copyrighted songs, that in such case every other record manufacturer should have the right to reproduce the Caruso renditions of such songs.

The Victor Talking Machine Co. promptly proceeded to sign up, I think, 98 per cent of the leading artists, singers, violinists, pianists, conductors, orchestra and band leaders, for the giving to the Victor Co. of the exclusive services of such persons in the making of sound records.

Here is a list of the artists announced by the company as follows: "The following artists have made records for the Victor's Red Seal list." It holds exclusive contracts with these artists under which the Victor Co. has a monopoly on the vocal and instrumental renditions of compositions written by others. No other manufacturer may reproduce those renditions. The public, over whom this act was so much concerned, had to pay for a Caruso record up to $3.50 and for a McCormack record up to $1.50. It costs about 23 cents to manufacture the record. It pays a royalty of 1.8 per cent to the author, the composer, and the publisher whose song is recordedas, for instance, "Mother Machree," but it makes the "dear old public" pay $1.50 for a record of that song made by McCormack. I think it charges 75 cents for the Whiteman record. They can charge these prices because they have a monopoly on these wonderful voices-these exclusive contracts with artists for a number of years. No other company may use the services of these artists. Here is the little list of exclusive artists, and these names easily are 98 per cent of the most prominent artists in the world: Abott, Alda, Amato, Ancona, Anseau, Arral, Battistini, Besanzoni, Boninsegna, Bori, Boston Symphony Orchestra, Braslau, Calve, Caruso, Chaliapin, Chemet, Clement, Constantino, Cortot, Culp, Dalmores, De Gorgorza, De Luca, De Pachmann, Destinn, Eames, Elman, Farrar, Fleta, Flonzaley Qt., Fornia, Gadski, Galli-Curci, Garrison, Gigli, Gilibert, Gilly, Gluck, Hamlin, Harrold, Heifitz, Hempel, Herbert, Homer, Jeritza, Johnson, Journet, Kindler, Kreisler (Fritz), Kreisler (Hugo), Kubelik, Landowska, Lashanska, Mardones, Marlowe, Martin, Martinelli, Matzenauer, McCormack, Melba, Mengelberg, Metropolitan Opera Chorus, Michailowa, Morini, New York Philharmonic Orchestra, Neilsen, Novaes, Ober, Paderewski, Paoli, Patti, Philadelphia Symphony Orchestra, Plancon, Ponselle, Powell, Rachmaninoff, Renaud, Ruffo, Samaroff, Schipa, Schumann-Heink, Scotti, Sembrich, Sistine Choir, Slezak, Smirnov, Sothern, Spencer, Stires, Stokowski, Tamango, Terry, Tetrazzini, Thibaud, Toscanini, Viafora, Werrenwrath, Whitehill, Paul Whiteman, Williams, Witherspoon, Zanelli, Zimbalist.

Mr. REID of Illinois. Are they all Americans?

Mr. BURKAN. I think 85 per cent are non-Americans.

Mr. REID of Illinois. That is what I wanted to get. Would the alien question have any effect on them?