out in this country are void, because most of them follow the first copyright, which can be the only copyright recognized; hence registry of copyright can not be depended upon and is not depended upon, in the trade customs of the day. It is for that reason that the motion-picture producers back the principle of automatic copyright.

5. We should have international copyright. This benefits the American author. America puts out a greater quantity of literary and dramatic and musical material than any other country-more than all other countries combined. As the situation is at present, we are at the mercy of foreign Governments if we want to copyright abroad. We must translate our works into the foreign language in each case and comply with the terms of copyright of each Government; failing that, our works are open to all the European pirates. Even to copyright in England means a lot of red tape that no authors and few publishers care to observe. Now, notwithstanding all this, it is a curious fact that to-day, Europe does not get the most or the best of our output. The reason is that we make no attempt to market our stuff over there. As soon as we can be paid a fair price for our material, our literary agents will push American literature to the limit in all foreign countries and our American authors will reap the benefit; not only that, but, as was said by Ellis Parker Butler on the day of the first hearing, American ideals, and ideas and American life will, for the first time, be presented to Europe, if the Perkins bill becomes a law. The American author does not fear the influx of foreign literature; he does want representation in the world markets and he ought to have it. To-day it is only by courtesy that we can (even by the most complicated red tape methods) get any foreign copyright at all. The result is, that we do not get it, and do not go after it. In other words, foreign copyright to-day is absolutely prohibitive to the American author. 6. The Perkins bill creates no difficulties, because, as pointed out, it merely enacts into statute law the present trade practices. It makes no new difficulties. All the interests know and understand what it means. It means that matters will go on, not according to legal difficulties under the present act but in accordance with the present trade practices. The difficulties that worry a magazine are, first, getting good material to publish; second, getting it at a reasonable price; third, getting plenty of advertising matter; fourth, increasing circulation. There are no difficulties about finding authors or determining whether an alleged author is a real author. They have to determine that to-day, because if a fake author comes to a magazine with my manuscript and they accept it from him and pay him for it, they must again pay me for it, for they buy unpublished material at their own risk. There is no copyright notice on unpublished material, and hundreds of magazines are taking thousands of chances every year. And it doesn't worry them a bit. If there is no worry over unpublished manuscripts, none of which have copyright notice upon them, none of which are copyrighted, why should there be any difficulty over published manuscripts that have neither been registered nor marked. Difficulties multiply under the present copyright law because in most cases copyright and copyright notice are valueless; but under the Perkins law, when an individual, author, or dealer, or business house looks upon a literary creation and knows that he or it did not create that creation, but that somebody else did, he or it will at once come to the correct conclusion that that work is not in the public domain. Suppose I come across a book which is a masterpiece, which has no copyright notice upon it, by mistake. What right have I to take that work and reproduce it for my profit? None whatever; and any argument to the contrary has no basis in good morals or good business or good law.

7. There have been queries as to whether the Authors League is a monopoly. It is not a monopoly. It does not fix prices. It does not acquire any rights. It is purely and simple a helpful organization. Authors sell their own works or sell them through agents, who have no connection with the league. The league does not handle authors' works. The league does not even know what authors are getting for their works. What it does is this: It tries to have authors understand what their rights are, and it gives advice generally through its bulletin, a membership magazine, and specifically when asked. It never dictates price, and rarely is consulted as to price. It controls no part of an author's output. It does not own any part of an author's output. The authors act as individuals

and make their own contracts and sell their own material in their own way. The Authors League has been, and may be, to some extent, criticized by certain private interests, for its preference of the Perkins bill over the Dallinger bill. The Dallinger bill, however, was propounded by the motion-picture interests; and the authors have always naturally felt that a bill propounded by a private

interest must be propounded for the benefit of that private interest. The Perkins bill was prepared by an impartial expert in whom the authors have implicit confidence. They know that the Perkins bill has not been prepared to protect any one interest at the expense of any other interest. In view of the powerful support of the Perkins bill that has been accorded before this committee; and because the authors understand it, and have faith in it, the Authors League feels not only justified in giving it unqualified support; but, further, the league, as representative of all the writers in the country, could not do otherwise.

We reserve the right to ask leave of the subcommittee to make such further argument as may be advisable.

We believe that the opposition to this bill rests upon no sound, moral, valid basis. We therefore renew our request that the Perkins bill stand approved by this committee.

Whatever it decides, this committee has earned our heartfelt gratitude for its courtesy and its forbearance.

For the Authors League of America:

WILLIAM HAMILTON OSBORNE,

Of the Council, and Special Counsel for the League.

[From Music Trade News October 1920]

How POPULAR SONGS ARE MADE-THE MANY NECESSARY AND COSTLY STEPS INVOLVED IN THE CREATING OF A SONG

When the music dealer more or less carelessly hands a sheet of music over the counter to a customer, we wonder if it ever occurs to him what a lot of time, labor, skill, and money are involved in the creating of each popular song. We wonder, too, if he realizes the hazards connected with the publishing of popular music—the chance for heavy loss involved whenever a song is turned out.

Truly, fortunes have been made in popular music. But fortunes have been lost, too. Every popular publisher must gamble upon the whims of the public. He must go through the many costly processes incidental to the making of a song, never knowing, until the last minute, whether or not he is ever going to get a return on his investment.

To persons not familiar with the inside workings of a popular music publishing business, and these include, besides the great public at large, many of the retailers of sheet music, it will be a revelation to know of the many steps taken in publishing a popular song before it actually reaches that state where it is a piece of salable merchandise. The great majority of people think that all the publisher does is to accept a song from the writers, put it on the printing press, sell it to the dealer, and there you are.

THE RAW MATERIAL

First, the publisher hears a song he likes; generally it is played by the writers from memory and nothing so far has been set down on paper. He accepts the song and asks the writers to furnish him with a "lead sheet" and lyric. A “lead sheet" is simply the bare skeleton of the melody. On receipt of this, he issues contracts (usually on a royalty basis) to the writers. He then turns the "lead sheet" over to a musician in his arranging department, who decides in what key it is to be printed in order to bring it within the playing scope of the average pianist, so that it will be "commercial." The arranger then proceeds with great care to make the manuscript piano copy from which the plates are to be made.

When a perfect manuscript (both words and music) has been completed, it is sent to the music engraver, who engraves the music and words on a metal plate from which the song is to be later lithographed. Music printing is a lithograph process and not like ordinary commercial printing. When the commercial plates have been proof-read and corrected, the publisher then orders what he calls "copyright copies,” a plain black and white edition which is sent, together with the proper forms and papers, to the registrar of copyrights in Washington and to the other foreign countries, so that the song will be properly protected by · copyright.

PROFESSIONAL WORK

This done, he now orders "professional copies" in great quantities. These are a cheap edition on newspaper stock and are used in teaching the song to the professional singers. The performer only keeps this copy while he is learning the song and then it is discarded.

At the same time that the professional copies are ordered, the publisher also orders "vocal orchestrations." An orchestration, as you probably know, consists of parts for about 16 instruments. These "vocal orchestrations" are printed in the "original key" and usually in four other keys, two higher and two lower. The reason for this is that, performers having different voices, the publisher must furnish them with an orchestration in a key suitable for their voice. In cases where none of the printed orchestrations are suitable for a performer's voice, the publisher must make a special manuscript orchestration especially for him.

The publisher must also have written to order extra choruses and "special versions" for each song. By "special versions" is meant rewriting of the lyric so that it can be sung by a man, a woman, two men, two women, or a man and a woman; in other words, a lyric to fit the particular type of singing act that is to use the song. These "special versions" are never used on the printed copy of the song, but nevertheless they are material that the publisher must have in order to interest the performers.

Artist copies, vocal orchestrations, and special versions are the material used to "sell" the song to the vaudeville performers. Big professional studios are maintained for this purpose, some of them containing ten to a dozen piano rooms, so that the performers can be properly rehearsed by the publisher's employees.

At this point it is customary to have made sets of illustrated glass slides for the use of motion-picture theater organists, and for the use of the publisher's own singers, who sing at the motion-picture theaters. The present-day slides are a work of art, consisting of seven or eight slides to the set, and are quite costly as compared with the old-fashioned slide formerly used.

DANCE ORCHESTRATIONS

Now comes the "dance orchestration" and, with the great popularity of dancing and the tremendous number of dance orchestras, this is an important and costly item. This is different from the vocal orchestration, in that it must be specially arranged by an expert arranger in dance music who can give it unusual effects. A good dance arrangement consists of an introduction, a first chorus for all instruments, a second chorus in "stop time," and novelty "breaks" for the brass sections, the verse in another key-which frequently has a slight alteration in the melody to give it variation-then there is often a third chorus for a trombone solo with violin obligato, and a fourth chorus for a saxophone solo, and then back to the first chorus again for all instruments. Many thousands of these dance orchestrations are distributed to prominent orchestra leaders as a part of the exploitation plan in "plugging" a popular song.

Next comes the arrangement for brass band, so that the song can also be played by the military bands; of course, all songs are not especially adapted for brass band, but this additional expense must be incurred for probably one-half the popular songs published.

SURVIVAL OF THE FITTEST

The reader will please observe that up to this point all of the above material has been printed, and all of the expense incurred, to find out if the publisher really has a song with commercial possibilities. If all the work and effort with the vaudeville singers, the dance orchestras, and the publisher's own "pluggers' indicates that the song has a 'chance" that the public take to it favorably, then the publisher gets ready to print the one thing that he has to sell, that is, the regular copy which is sold in the music stores.

If the result of all this effort has not been favorable, and the song does not look 'commercial," then all of this expense has been in vain.

It is really surprising to know the number of songs "worked on" in this way

by the publisher which never see the "light of day" as regular copies.

30335-25†-PT 4- -7

THE FINISHED PRODUCT

Assuming that the public's reaction to the publisher's missionary work has been favorable, he then proceeds to get out regular copies. This entails the work of an artist in getting out the cover design, the making of the cover plates, usually in two colors, and finally the printing of regular copies.

Following closely on the issue of the regular copy comes the expense of advertisements in the newspapers and magazines, the preparation of display material, and the planning of the selling campaign.

Even after publication the publisher sometimes finds that he has not "guessed right" and the song goes into the "discard," but this is the publisher's gamble, and he must gamble to get hits. If, however, the song "catches on" and the orders begin to come in, the publisher intensifies his work on the song and tries to get the maximum volume of sales in the shortest possible time; and, as the song shows indications of getting into the "hit" class, the player-piano rolls and phonograph records are a natural sequence.

The diagram (not printed) accompanying this article will give you at a glance the various steps taken in preparing a popular song for publication. Verily, the publisher's path is not an easy one; he, too, has a few "ups and downs."

STATEMENT OF NATHAN BURKAN, ESQ., IN REPLY

Those who lay so much stress on registration and other formalities entirely ignore the great changes that have taken place in the views of mankind, and of the American people with those of other countries, as to the importance of formalities in the administration of laws.

Those who are acquainted with the evolution of law, know that matters of form and technical requirements have been more and more abandoned. The rules of procedure in all courts, in Federal courts as well as in those of the States, have been more and more liberalized with a strong tendency to the abandonment of technicalities and to the limitation of formalities.

This tendency is very evident in the development of the copyright law itself. Before the act of 1909 it was necessary in order to obtain copyright to deposit the title of the work and then to deposit two copies of the best edition of the book; the greatest strictness was demanded in the form of the copyright notice.

When the statute of 1909 was enacted the filing of the title and the deposit of two copies as conditions precedent to the obtaining of copyright were abandoned and the rule that an author or proprietor who had inadvertantly omitted a proper copyright notice should be deemed to have abandoned his copyright, was mitigated by a provision to the effect that such inadvertant omission should not destroy his copyright.

In England the development has gone a step further and all formalities have been discarded. The present English copyright law takes the view that every literary or artistic creation is the exclusive property of the author; that any person who desires to reproduce that work must find the author or his assignee and obtain a license.

It is not true that the present law enables any one who desires to purchase the copyright in a new work to ascertain by an inquiry at the copyright office who is the real owner of the copyright.

Under the present act the copyright in a work may be perfect, although there has been no deposit of copies and no registration of the claim to copyright in the copyright office. (N. Y. Times v. Star, 195 Fed. 111; N. Y. Times v. Sun, 204 Fed. 596.)

And this condition may continue for a considerable period of time.

During this period any reproduction of the work, without the consent of the copyright owner, would be an infringement. And for such infringement a suit may be maintained thereafter, upon the registration of the claim to copyright and the deposit of copies, although at the time of the reproduction no deposit of copies in the copyright had taken place and the claim to copyright had not been registered.

And even after registration of the claim to copyright the records of the copyright office do not furnish reliable proof of the true ownership of the copyright in the work.

There is a tendency to ascribe to the registration of a copyright an importance and a probative force which it does not possess.

What the registration of the claim means is not that the right of the person who is recorded as the claimant of copyright has been investigated and has been found a valid right.

No investigation is made.

The register of copyright acts merely as a filing clerk for the filing of claims to copyright.

The fact that one Jones has filed a claim of copyright does not establish any of the elements upon which the validity of the copyright and of the claimant's right to it must be based.

Jones may register a claim for copyright in a work which he does not own and which he has no right to copyright. Nevertheless, he may obtain registration of the claim to copyright in his name.

And if Jones finds a purchaser of his alleged claim, the purchaser would not be able to ascertain from the records of the copyright office whether Jones had a right to claim copyright to the work in his name. If he relies on the mere registration of Jones's claim, he may find himself made the defendant in a suit brought by the real owner of the work and of the right to copyright it. And in such a case the purchaser may be adjudged to be an infringer and he may be compelled to assign the copyright which he purchased to the real owner.

The case of Ferris v. Frohman (223 U. S. 424) arose from the infringement of a play which had never been published and the performing right in which was held by Frohman under the common-law right of ownership. An adaptation of this play was made by one McFarlane, without the consent of the owner of the common-law rights in the play, and this adaptation was sold to one Ferris, who copyrighted it. Ferris was sued for infringement. The United States Supreme Court held that the Ferris adaptation was a piracy and that the registered copyright was null and void.

The court said, at page 437:

"Our conclusion is that the complainants were the owners of the original play and exclusively entitled to produce it. Their common-law right with respect to its representation in this country had not been lost. This being so, the play of the plaintiff in error, which was substantially identical with that of the complainants, was simply a piratical composition. It was not the purpose or effect of the copyright law to render secure the fruits of piracy, and the plaintiff in error is not entitled to the protection of the statute. In other words, the claim of Federal right upon which he relies is without merit."

Registration of a claim of copyright grants no priority such as is granted in the Patent Law. The reason therefore is explained in Lithographic Co. v. Sarony (111 U. S. 53, at p. 59):

"In regard, however, to the kindred subject of patents for invention, they can not by law be issued to the inventor until the novelty, the utility, and the actual discovery or invention by the claimant have been established by proof before the Commissioner of Patents; and when he has secured such a patent, and undertakes to obtain redress for a violation of his right in a court of law, the question of invention, of novelty, or originality, is always open to examination. Our copyright system has no such provision for previous examination by a proper tribunal as to the originality of the book, map, or other matter offered for copyright. A deposit of two copies of the article or work with the Librarian of Congress, with the name of the author and its title page, is all that is necessary to secure a copyright. It is, therefore, much more important that when the supposed author sues for a violation of his copyright, the existence of those facts of originality, of intellectual production, of thought, and conception on the part of the author should be proved, than in the case of a patent right."

The copyright certificate does not per se establish a copyright.

Bosselman v. Richardson (174 Fed. 622), at 623 (Circuit Court of Appeals for the Second Circuit), holds:

"Such a certificate is wholly unlike letters patent, which are issued under section 4884 after a quasi judicial examination of the applicant's rights, and which grant him, his heirs or assigns, the exclusive right to make, use, and vend the invention patented. A patentee accordingly makes out a prima facie case when he puts his letters in evidence and proves infringement. The owner of a copyright, on the other hand, is bound to prove compliance with all the statutory conditions, viz., in this case that his assignor had published the paintings before copyright. * * * The certificate of the Librarian of Congress is no proof of compliance with these conditions."

Chicago Music Co. v. J. W. Butler Paper Co. (19 Fed. 758), at page 759, held: "The librarian issues no certificates or anything in the nature of a patent; he simply makes a record and whenever called upon has to make a certificate