Mr. PAINE. Yes; it is. You will hear from them later. But I mean that, so far as we are concerned, we are endeavoring to touch only on our particular phase of it. Their turn has not yet come; it is coming now.

What I mean to say is this: That music is ephemeral. We get a composition which comes before us, which is called, for example, "Katrinka." Now, we find that the music of "Katrinka" has printed down on the bottom of it, Vinam Co. We immediately assume that the company which has control of that music is the Vinam Co. We endeavor to get a contract with that company; and we find that that company has assigned its copyright, or the mechanical rights, in Europe to the French Society. Now, even under this law there is not any requirement to register that European assignment. If it is an American assignment it has to be registered here. But a European assignment does not have to be registered. We could go to the records at Washington and find nothing.

Now, we have to make then another very rapid search; because we know that that music as soon as it is known to the public will go like wildfire. We want to get in on that wave of popularity. If we do not, by the time we have our records pressed the thing will be dead and something else will be popular.

Now, to find out quickly who is the copyright proprietor of that work here in the United States is one of the most difficult problems that I know of, even under the present law. If it is an undisclosed copyright, and we have to work under this bill which has been proposed here, then we are confronted with a problem that I do not know how we will ever work out. And that alone is going to be a serious handicap to the talking-machine industry. We have either to run the risk of infringement with the consequent damages, or we have to fail to put out compositions when they are on their way to popularity.

Mr. BLOOM. Mr. Paine, you are in touch with the manufacturers in Europe, are you not?

Mr. PAINE. Yes.

Mr. BLOOM. Now, you happened to mention "Katrinka." You know that the records of that were made in Europe over a year ago? Mr. PAINE. No, we are not in touch

Mr. BLOOM (interposing). I mean your laboratory, or your reporting manager, would know that. So that it would not be a very difficult matter to find out who really controls "Katrinka"?

Mr. PAINE. It would not be a difficult matter to find out who controls it in Europe: but they do not know themselves who controls "Katrinka" in the United States. I wrote to Mr. Robertson, who is the copyright man of the Gramophone Co. in England, our associate company there, and he could not tell me; he had not any idea who controlled the rights in the United States. He had to make an investigation; and it was two or three weeks later before I heard from him. Mr. BLOOM. Who controls it to-day, do you know?

Mr. PAINE. I do not know yet who controls it.

Mr. BLOOM. Leo Feist suggested to-day that he controls it; Mr. Balfin of the French Society says he controls it; and Fred Briede of Berlin says he controls it.

Mr. BLOOM. Is it a noncopyrighted piece in this country?
Mr. PAINE. "Katrinka"?

Mr. BLOOM. Yes.

Mr. PAINE. That I do not know yet.

Mr. BLOOM. But you know that is a question?

Mr. PAINE. Yes; that is a real question, too. I am hoping that

it is.

Mr. MCLEOD. Is it not a fact that it is difficult to state whose merits are worth most-those of the author or those of the artist who sings the author's works? It is difficult to state which is the most worthy, for instance, in a record?

Mr. PAINE. Well, in our judgment, of course, we believe that people buy Caruso's records because Caruso sang them, regardless of who composed the music.

Mr. MCLEOD. But there is merit in the composer; you have to admit that?

Mr. PAINE. There is.

Mr. MCLEOD. Well, in every record you make with a new artist you must bargain with the artist; is that not a fact? There is no definite contract price that you have for all artists. You do not pay one definite price for Caruso, and the same price for somebody who was not well known who sang a song. You dicker with the artists, do you not?

Mr. PAINE. Yes. As a matter of fact, practically all of our artists' contracts to-day are exactly the same. I mean we pay all artists the same royalty rate-in the Red Seal class; in the Blue Label class-practically the same rates all the way through. But that has only been a development of our business policy recently, in the last eight or nine years.

Mr. BLOOM. If you pay them all the same price, what is your objection to letting the committee know what it is? I will not insist upon it; but as long as you pay all your hundreds of singers the same price, they must all know it; what objection would you have then to letting the committee know what it is?

Mr. PAINE. Well, I do not know that they all know it.

Mr. BLOOM. Well, they all know it if they all get the same price. The record of this hearing is public; and you have said here that they all get the same price, whether it is 5 per cent or 10 per cent. And you have hundreds of singers. What objection would you have to letting this committee know? What I would like to get at is this: If you charge $1.50 for John McCormack on a noncopyrighted composition on which you pay no royalty, and you sell two copyrighted compositions for 75 cents, admitting that you get 50 off on the list price, you still get twice as much for a noncopyrighted composition as you do for a copyrighted composition. Then what objection would you have to letting this committee know?

Mr. PAINE. Well, I personally have not any objection; and I do not think the company would; but I do not know whether the artists would; and so I do not feel like giving out the information.

Mr. BLOOM. Now, with regard to the question that you had about the singer being the principal one that you advertise, here [indicating] is an advertisement of your late Victor records. Do you not advertise the song? Is not the song the principal thing that you advertise, Mr. Paine, and not the singer?

Mr. PAINE. Well these [indicating], are "Black label" records. Yes; these always are advertised.

Mr. BLOOM. That is what we are talking about, the popular music, not the high-class music. Now, it is a fact that you advertise the song and the song is the thing you sell?

Mr. PAINE. We give it that publicity.

Mr. BLOOM. Then the song and the title of the song are the principal things the public is interested in?

Mr. PAINE. I do not know that that is true. In some cases, yes; it is not generally so.

Mr. BLOOM. This is your advertisement in the paper just the other day that I cut out.

Mr. PAINE. That is true. But when you talk about a musical composition, it is not "Celeste Aida," it is not Puccini's writing, that is advertised; it is the interpretation of that music.

Mr. BLOOM. Well, is it not a fact that Irving Berlin's latest composition, or Victor Herbert's latest composition, or John Philip Sousa's latest march, is the thing that you advertise just the same as you advertise Caruso or McCormack?

Mr. PAINE. It is 50-50 between Irving Berlin and John McCormack,

Mr. BLOOM. Then why should not Berlin get the same protection that Mc Cormack gets?

Mr. PAINE. Do you think it is John McCormack or the composer whose record the public buy?

Mr. BLOOм. It is 50-50. Will they buy John McCormack's song record of something that is not popular and that the people do not care about hearing?

Mr. PAINE. A John McCormack record that the people do not care about hearing?

Mr. BLOOM. Yes.

Mr. PAINE. No.
Mr. BLOOM. No.

Does not the song make the singer, as well as

the singer make the song?

Mr. PAINE. No.

Mr. BLOOM. No?

Mr. PAINE. No. It is like this: The little weaver of Capri is certainly entitled to something for the canvas on which the Sistine Madonna is painted

Mr. BLOOM (interposing). You are getting into the Augustus Thomas class.

Mr. PAINE (continuing). But it was Raphael that made the canvas of value. Now, I know it is true in some cases that the song has value; and that value enables the Victor Talking Machine Co. to sell thousands and thousands of records, and the copyright proprietor to earn thousands and thousands of dollars in copyright royalties. In some cases it is the singer alone that carries the song. I am sure that in the case of Caruso, while "O Solo Mio" is probably well known, and has a value of its own, in case of some of his other songs where no one knew the composition it is Caruso's singing which creates the demand for the song.

Mr. BLOOM. But he must have a song to sing.

Mr. PAINE. He must have a song to sing; it is a basis on which to build up his beautiful production.

Mr. BLOOM. Then it is a 50-50 proposition; it is the song as well as the singer; the singer as well as the song.

Mr. PAINE. I think both are necessary; but I am not quite ready to say it is completely 50-50.

Mr. WEFALD. There would not be any singers without songs?

Mr. PAINE. That is true; but there would not be song writers without singers. If you do not have an outlet, how would you ever write any music? If nobody would sing or play, what would be the use of composing music?

Mr. MCLEOD. Paul Whiteman both the red seal records and the black label records?

Mr. PAINE. He plays the black and the blue.

Mr. MCLEOD. He is very popular just now.
Mr. PAINE. Paul Whiteman?

Mr. MCLEOD. Yes,

Mr. PAINE. Certainly. We pay him a larger sum for the making of a master record than we pay Waring's Pennsylvanians.

Mr. MCLEOD. Then there is a difference in the prices paid these artists. You said that they received practically the same; that the artists received practically the same for singing?

Mr. PAINE. I say that all the royalty artists are practically on the same basis. I said our red seal and blue label artists are on practically the same basis.

Mr. MCLEOD. And the black labels?

Mr. PAINE. The black label records are made on a flat sum, practically.

Mr. MCLEOD. The only point I was getting at is that you have to dicker with a man like Whiteman?

Mr. PAINE. Yes.

Mr. MCLEOD. Why is it not just as good business to have a contract with a composer and author of the music that Paul Whiteman plays, for instance? Some music is more popular than others. You have a flat rate to bargain with; you can bargain just so far; he is limited. And a man like Whiteman that plays the music is not limited; he can go as far as he likes, and he does not have to play for your company.

Mr. PAINE. So far as the company is concerned, it would be a very great saving if we could bargain with a music publisher in exactly the same way that we bargain with Paul Whiteman. Paul Whiteman does not begin to get two cents a record.

Mr. MCLEOD. Would you not prefer to have to bargain with authors or composers?

Mr. PAINE. So far as the Victor Talking Machine Co. is concerned, I think we would be quite satisfied. But I want to add to that answer a fact that I think the committee ought to understand that we do not believe that is for the best interests of the industry as a whole. Mr. MCLEOD. Why?

Mr. PAINE. Well, you claim that we have all the artists at the present time. I would rather not say any more on that.

Is there anything else, Mr. Chairman?

The CHAIRMAN. That is all; but on behalf of the committee I want to thank you for your statement.

You may submit for the record the statement which you have prepared, and also any suggestions as to amendments which you desire to make.

(The material referred to is as follows):

STATEMENT SUBMITTED IN RE BILL H. R. 11258, BY MR. JOHN G. PAINE, REPRESENTING VICTOR TALKING MACHINE CO.

The Berlin convention after defining the literary and artistic works to be protected, provided that "the contracting countries are pledged to secure protection in the case of the works mentioned above." Authors within the jurisdiction of any one of the countries of the union were to enjoy for their works, "whether unpublished or published for the first time in one of the countries of the union, such rights, in the countries other than the country of origin of the work, as the respective laws now accord or shall hereafter accord to natives, as well as the rights specially accorded by the present convention." (Art. 4.) It was then expressly provided that

"The enjoyment and exercise of such rights are not subject to any formality; such enjoyment and such exercise are independent of the existence of protection in the country of origin of the work.' (Ibid. art. 4.)

As to the effect of this provision Copinger says:

"There are not to be any formalities precedent to obtaining copyright, such as mention of reserve of copyright, etc., nor any formalities precedent to the bringing of an action for infringement, such as the registration which was necessary under the repealed English legislation prior to the commencement of proceedings to enforce copyright in a literary work." (Copinger, Law of Copyright, 1915, p. 314.)

It was further provided that

"Authors within the jurisdiction of one of the countries of the union who publish their works for the first time in another country of the union, have in this latter country the same rights as national authors." (Ibid. art. 5.)

"Authors not within the jurisdiction of any one of the countries of the union who publish for the first time their works in one of these countries, enjoy in that country the same rights as national authors, and in the other countries of the union the rights accorded by the present convention." (Ibid. art. 6.)

It will be noted that the provisions of the last quoted article are broad enough to enable American authors to secure for themselves the international copyright protection which the union offers, by merely publishing their works for the first time in one of the unionist countries; and the proper application of paragraph 3 of article 4 "For works published simultaneously in a country outside of the union and in a country within the union, it is the latter country which is exclusively considered as the country of origin" (see also Copinger, 5th ed., pp. 308, 311) clearly entitles the American author to such protection when he publishes his work simultaneously in the United States and in a unionist country. With the possible exception of Canada, the adoption of the protocol of 1914 (hereinafter referred to) has not resulted in any change in this situation; and with protection under the union thus already available to American citizens, searching inquiry is to be expected as to any compelling necessity of this country joining the union. The term of protection granted by the Berlin convention was the life of the author and 50 years after his death; but it was stipulated that if this term were not adopted uniformly by all the countries of the union the duration of the protection should be regulated by the law of the country where protection was claimed and could not exceed the term of any grant in the country of origin of the work. (Ibid. art. 7.)

Prima facie proof of ownership of a protected work was to be found in the mere indication of the author's or publisher's name on the work:

"In order that the authors of the works protected by the present convention may be considered as such, until proof to the contrary, and admitted in consequence before the courts of the various countries of the union to proceed against infringers, it is sufficient that the author's name be indicated upon the work in the usual manner.

"For anonymous or pseudonymous works the publisher whose name is indicated upon the work is entitled to protect the rights of the author. He is without other proofs considered the legal representative of the anonymous or pseudonymous author." (Ibid. art. 15.)

However, there was no express requirement that the name of either author or publisher must appear on the work, all formalities having been swept away by article 4.

It was further provided that—

"All infringing works may be seized by the competent authorities of the countries of the union where the original work has a right to legal protection."” (Ibid. art. 16.)

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