Mr. BLOOM. Mrs. Nevin, who was the attorney that secured the money for you from the other people? Mrs. NEVIN. Mr. Burkan. Mr. BLOOM. Did Mr. Burkan ever charge you for his services in that matter? At the hearings over the bill to amend the copyright law in order to put those who compose music on an equal footing with those who perform it and distribute it, it is hard to escape the conclusion that the phonograph companies are trying to draw bright red herrings across the trail. First they allege that our composers steal their tunes; but it develops that Schumann and Brahms did likewise. Then they affect concern for the composer, and point out that. the widow of Ethelbert Nevin, who wrote The Rosary, received a check for $15,000, which she would not have received if the law read as it is proposed to amend it; but examination of the new bill indicates she would have received a check commensurate with the popularity of the song. Now they come forward with the news that it took 10 years to perfect the phonograph matrix of Nearer, My God, to Thee. Does this prove anything? If it does, let us by all means get into the record the fact that it took Richard Wagner 15 years to complete The Ring of the Nibelungs. MUSICAL COURIER CO. (INC.), Hon. SOL BLOOM, House of Representatives, Washington, D. C. MY DEAR SOL: I remember reading a couple of weeks ago that somebody at the copyright hearing-I think it was a Mr. Payne-made the statement that Ethelbert Nevin had sold The Rosary outright for $15. I happen to know that that is absolutely untrue, and inclose herewith copy of an editorial which the Musical Courier will print next week. Incidentally, 20 years ago I used to be with the Boston Music Co., who published the Rosary and a lot of other Nevin things. One of my duties was to check up the Nevin royalty statements, and they used to run anywhere from $6,000 to $8,000 a year. Besides this, of course, there was the large John Church Nevin catalogue and some from Ditson, in addition to all the mechanics. I am very glad we have an intelligent and informed person like yourself on that committee. With cordial regards, sincerely yours, H. O. OSGOOD. [Editorial from the Musical Courier, New York City] According to reports in the daily papers, at the recent copyright hearings in New York a representative of the talking machine interests made the statement that the manuscript of The Rosary was purchased outright from Ethelbert Nevin for $15. The only correct thing about this statement, as we happen to know, is the figure "15," for the contract for this song called for payment of a 15 per cent royalty instead of the usual 10 per cent. In other words, Mrs. Nevin gets 9 cents for every copy that is sold instead of the usual 6 cents. It is The Rosary and a few other items among the Nevin list-but principally The Rosary itself that has bought and paid for a mile and a half of water front on Blue Hill Beach in Maine and the magnificent residence that stands on it. It is particularly unfortunate that the speaker at the hearing, endeavoring to show that the publishers' hands were no cleaner than those of the record makers when it came to paying the composers what they should receive, what is due them. should have picked out The Rosary as an example. The CHAIRMAN. Mr. Hess. STATEMENT OF MR. GABRIEL L. HESS, NEW YORK, REPRESENTING THE MOTION PICTURE PRODUCERS AND DISTRIBUTORS OF AMERICA. Mr. HESS. Mr. Chairman and gentlemen, my name is Gabriel L. Hess. I represent the Motion Picture Producers and Distributors of America, the association of which Mr. Will H. Hays is president. As has been stated here before, those engaged in the motion-picture industry are divided into three classes-the producers, the distributers, and the exhibitors. This association that I represent consists only of producers and distributers, and the interest of the association in this copyright bill and copyright legislation generally is that of the producing members of the association, because they buy the literary materials upon which the pictures are based, and after the picture is completed it is turned over to a distributer for distribution. At the outset I wish to correct an impression that must have been received during all these hearings, and which was very vividly made on my mind at the time the authors presented their arguments in favor of this bill; and that is the impression that the motion-picture people were taking the literary material from which they made pictures without compensation, and that if they paid compensation they paid very little of it. There are about 75 producers of motion pictures in the United States not more. There are 75 corporations or individuals producing motion pictures. I was able to secure from the books of but 5 of the 75 the amount of royalties or money that was paid to authors by these 5 producers in the last five years, and the total sum was $11,112,921. Mr. REID of Illinois. That went to whom? Mr. HESS. To the authors, directly. Mr. HAMMER. To the publishers? Mr. HESS. To the authors; not the publishers. Mr. HAMMER. What did you pay to the publishers? Mr. HESS. We paid nothing to the publishers. Mr. HAMMER. I mean where the publishers owned it, and the authors had disposed of it. Mr. HESS. We paid it to the owner of the motion-picture rights, Judge Hammer, I would say, in practically all instances. Very rarely is it that a publisher has any interest in the motion-picture rights. It is the author. That is an average of $2,556,185 a year in the last five years, which means that for every motion picture that these five producers made. in the last five years, the author, the man who wrote the material upon which the picture was based, received on an average $11,834 for his material. Now, of course, that is an average price. Some authors have received as high as $150,000 for their material. I do not think that to-day an author of any reputation or note receives less than $15,000 or $20,000 for his material. So I believe that with these figures, taken from the books of 5 of these 75 producers, the impression that the motion-picture industry is getting its material by throttling the author is clearly demonstrated to be wrong. It is not my purpose to go into the details of the bill. Mr. Weil, whose work on copyrights is favorably known to the legal profession, has been cited innumerable times by the courts since its publication, and is recognized in the field as the last word on copyright in this country, is here to take up the details of the bill. Mr. Schwartz will tell you of his contact with copyright in an endeavor, as chairman of a copyright committee of the association that I represent, to secure new copyright legislation. All that I want to say is a few words on the general position taken by the producers of the association to which I belong. They want to know, when they pay a valuable consideration for the right to make a motion picture, that they have a clear title, just the same as you would want to know, when you bought a piece of real estate, that the title was yours when you paid the consideration for it. Mr. BLOOM. Would they not have that, Mr. Hess, in this new bill more than they would under the present bill? Mr. HESS. No; they would not. Mr. WEIL. It would be the same. Mr. HESS. They want to be placed in a position, the same as you are now placed in the position when you buy that piece of real estate and get your deed, and you go to the register of the county where the property is situated, that they can take the instrument of sale, granting them the motion-picture rights, to a place where it will be recorded and properly recorded, so that they can deal with that title the same as you deal with that piece of real estate. Mr. BLOOM. That is one of the points that you make with reference to the bill? Mr. HESS. That is one of the points that we make. The producers want new copyright legislation. Mr. BLOOM. You mean the moving-picture producers? Mr. HESS. I am talking of the motion-picture producers. I represent nobody else, sir. Mr. BLOOM. You said "the producers." Mr. HESS. This copyright bill, for some reason that we have been unable to learn, clearly and unequivocally discriminates against the motion-picture producers. Mr. HAMMER. In what way? Mr. HESS. Judge, with your indulgence, I will let Mr. Weil explain it. He has carefully studied the bill. Mr. REID of Illinois. Are you not a lawyer? Mr. HESS. Yes, sir. Mr. BLOOм. He is a very good lawyer, too; I will vouch for that. Mr. HESS. Thank you. Mr. REID of Illinois. Give us a practical answer, as well as a technical answer, to Judge Hammer's question, if you can. Mr. HESS. It is really technical, because it singles out the motionpicture industry, the motion-picture producer, as against other users of copyright, and in that way it discriminates against the producer of motion pictures. Mr. REID of Illinois. Is that on the theory that you are a trust, anyhow, and you ought to have the hooks put into you generally? Mr. HESS. No; I do not think it is a trust. I think the drafter of the bill did not quite realize the discrimination that was made in the bill as it was drafted. Mr. REID of Illinois. You have not said anything about Mr. Solberg. Everybody who has spoken here for a day or two has spoken about Mr. Solberg. You know Mr. Solberg, do you not? Mr. HESS. I know him as the register of copyrights. I do not know the gentleman personally. So far as the Berne convention is concerned, our position is this: If the proper safeguards to the American people and the users of copyright material can be made, we are for going into the Berne convention; and the safeguard that I have in mind particularly is notice. We want to know when a piece of material is copyrighted. We do not want to be placed in the position of being infringers of copyrights. Lastly, we want a piece of copyright legislation that is clear and not ambiguous. It has taken 16 years of litigation to determine what the present copyright act means as to certain sections, and as to some other sections we do not know to-day what it means. We want such a bill that it is not necessary to go to a court to have the sections of it construed. That is the interest of the motion-picture producers in copyright. Mr. BLOOM. Mr. Hess, referring to that last statement, do you not think that the reason it was rather difficult to define what the present copyright law really meant was on account of the new inventions coming up, like the radio, the moving pictures, etc.? Mr. HESS. No; there is no difficulty about construing those sections at all. Mr. BLOOM. Well, at that time the moving-picture producers thought that the present copyright law did not apply to them; so you had to go to court to have that clause defined; is not that a fact? Mr. HESS. That is only one section of it. I am talking of the act generally. There is hardly a section of the 1909 act that has not required some judicial construction. Mr. BLOOM. Yes; but the Perkins bill Mr. HESS (interposing). The Perkins bill, in my opinion, is twenty times worse. Mr. REID of Illinois. What do you mean by that? Mr. HESS. I mean that it is Mr. HAMMER. Indefinite? Mr. Hess. It is so indefinite, it is so ambiguous, and the mean of the words and the phrases used are so difficult of determining that it would take 50 years of litigation to find out what it means. Mr. REID of Illinois. For example? Mr. HESS. Will you permit Mr. Weil to take up that side of it? Mr. REID of Illinois. Are you not working in tandem with him? Mr. HESS. Exactly. That is all I have to say. The CHAIRMAN. We will hear from Mr. Weil. A STATEMENT OF MR. ARTHUR W. WEIL, NEW YORK, N. Y., Mr. WEIL. Mr. Chairman and gentlemen of the committee, my name is Arthur W. Weil. I have an office at 185 Madison Avenue, New York City. I appear as counsel for the Motion Picture Producers and Exhibitors of America (Inc.), and I am also appearing as counsel here for the National Publishers' Association, which comprises all the large magazines and periodicals of the country, both of which organizations wish to register opposition to this bill. I may also say, for the enlightenment of the committee, that we are advised that the only reason that representatives of the newspapers of the country are not here for the same purpose of registering opposition is that they consider, with the calendar of Congress in the condition it is, that it would be a mere idle formality for them to appear at this time. But they intend, as I understand it, to oppose it at a later date. Mr. REID of Illinois. What do you mean by that; that the newspapers are against this bill? Mr. WEIL. Absolutely; and I will indicate some of the reasons as we go along. Some of the reasons of the magazines for opposing it are reasons why the newspapers will have to oppose it. At the outset, gentlemen, I may say that we feel that we are in rather an unfortunate position in this matter, because we are opposing what appear to be the wishes-I say "appear" advisedly-of those whose friends we are, who should be our friends, and who we feel will be our friends when some of the misunderstandings that appear to exist in connection with this legislation have been cleared away. There has been a great deal of misinformation spread about this bill, and I think a great deal of that misinformation is the basis upon which the authors so unanimously fought this bill. Mr. REID of Illinois. Do you claim to be an author yourself? Mr. WEIL. I am an author. I could tell you a sad tale about my authorship, too, if you desire. Mr. BLOOM. Please don't. Mr. WEIL. The matters that we are concerned with are partly matters of principle, and to a great extent matters of detail. Before I embark on my main argument, which is on behalf of the motion-picture producing industry, I wish to read a statement on behalf of the National Publishers' Association. Mr. BLOOM. Is that the National Association of Book Publishers? Mr. WEIL. No; they are periodical publishers. The book publishers have appeared in favor of this bill for the good and sufficient reason that this bill would enable them to print their books outside of the United States, wherever they would find the cheapest labor market, and as soon as a bill was presented that removed the protection to American labor that has existed in all prior proposed copyright legislation, the book publishers would automatically be in favor of that bill. The periodical publishers, however, who publish in this country, and intend to continue publishing in this country, are not influenced by those considerations.. Mr. REID of Illinois. Just whom does this take in? |