there is a great deal of quotations from writers, from speakers, and from authors. We face another danger in the newspapers for their style columns just as do the magazines, if our advertisers happen. to send us in a copy of an advertisement, some line treating of a mode that is new in Paris, and this was copyrighted over "ere in some way that we know we have no way to check on the We do not want to stop the very purpose of this bil, wnich is to grant full protection to those who create, but we do want to have some reasonable provision in there so that we are not subject to the automatic injunction in case somebody abroad cables some representative here that something they may be getting out in one of our papers is an infringement of an automatic copyright.. Mr. SIROVICH. He could still do that to-day if he wanted to, from what Mr. Lanham said? Mr. HANSON. Not to-day.. Mr. LANHAM.. I will call your attention to this provision of article 9 of the Berne convention, that this protection does not apply to news of the day or miscellaneous news, or to the creator of press information. Mr. HANSON. That is true, but the creator of a newspaper to-day is not only creating news of the day, but if you will pick out any single newspaper, daily newspapers, like the Chicago Daily News, which has a very fine foreign service, you will find that that foreign service is confined not only to the news of the day, but scientific news and political news, and technical news of all kinds. Spot_news is one thing and general information news is another. As I say we are not here to try to break up the passage of the bill that will grant that protection which we regard as essential to American. authors; we simply want the bill to have certain saving features. We want to submit to you a little more of the detail so that we will not be subject to embarrassment. We do not want any protection against willful infringement of anybody's copyright. Mr. LANHAM. Will you be prepared to present the views of your organization at the latter part of this month? Mr. HANSON. Our meeting is on the 23d, 24th, and 25th, and by the 28th we will have our statement before you if that is agreeable (The statement submitted by Mr. Hanson on behalf of the American Newspaper Publishers' Association, is as follows:) The American Newspaper Publishers Association is heartily in favor of legislation which fairly will protect the interests of all of those who are interested in copyrights, whether they be the creators of the work copyrighted or those who publish or distribute such work. Therefore, it can be stated at the outset that this association, whose membership comprises publishers of daily newspapers in the United States and Canada, is in sympathy with the general purposes of the bill. Several amendments, however, are submitted to the committee for its consideration in order that certain phraseology may be cleared up and that the public interest may be protected against what might be extreme actions in unusual cases. The present law provides for the granting of injunctions restraining infringements of copyrights. The pending measure maintains the language of existing law. There may be abuse of the injunction privilege in case of the entry of the United States into the International Copyright Union, as provided in the bill. In order that the injunction privilege shall not be abused, it is suggested that the following proviso be added to paragraph (a) of section 16, on page 13. line 20, after the word "infringement": 66 Provided, That no temporary restraining order shall be issued which will prevent the publication of a daily newspaper." While the International Copyright Union protects newspapers against such orders, in so far as news is concerned, there is no protection against the innocent infringement of articles which may appear in the magazine, book review, art, or dramatitc sections of Sunday newspapers. These articles are not spot news. The public interest requires the regular publication of our great newspapers and journals free from interference by restraining orders unless such orders are fully considered by the courts. 66 The American Newspaper Publishers Association does not for one moment want to give the committee the impression that it is seeking protection for any willful infringer of a copyright, but, on the other hand, if damage is done through the unauthorized reproduction of material in a daily newspaper, the proposed law makes adequate provision for compensation to the author who is injured without depriving the public of the right to have its daily paper. The damage which would be done to the public, which includes both the readers of newspapers and the advertisers in newspapers through the issuance of a temporary restraining order, would far outweigh the benefit which would accrue to the owner of a copyright through the issuance of a temporary restraining order. The present law fixes statutory damages for the unauthorized newspaper reproduction of a copyrighted photograph. In order that this paragraph may be complete, it is suggested that, on page 15, line 13, after the word photograph," the following be inserted: "line drawing, etching, or similar 46 work." This merely extends the statutory protection now granted to photographers to creators of other work of similar character, and, at the same time, it extends the statutory protection granted to publishers through the fixing of damages for such unauthorized innocent publication of copyrighted works of a character similar to photographs. A suggestion has been made to your committee that the minimum statutory damage amount be reduced from $50 to $10. With this suggestion, the American Newspaper Publishers Association is in accord, if it be the judgment of the committee that such a reduction should be made. However, in so far as photographs are concerned, the association has had satisfactory experience with this provision as it now stands and its main request is that the paragraph be enlarged to include line drawings, etchings, and similar work. Newspapers to-day publish large volumes of advertising. A material portion of this advertising is what is known as national advertising, which is furnished to the newspapers by advertising agencies in behalf of their clients or by advertisers direct. Much of the advertising which now appears in newspapers is illustrated or contains quotations. There is always the possibility that some of the illustrations contained therein or some of the quotations contained therein may infringe copyrighted work. With the preparation of the advertising copy the publisher has nothing to do. His only obligation is to print that copy as it is furnished to him by the advertising agency. responsibility to the public rests chiefly on two grounds: First, that such advertising shall not be fraudulent; and, second, that it shall not be libelous. If it is not libelous and if it is not fraudulent, the publisher of the newspaper should be free to print such copy as is submitted to him by a responsible advertising agency or by a responsible advertiser. It is, therefore, suggested that on page 18, after line 6, a new subsection should be inserted reading as follows: His "In the event that any advertising matter of any kind carried by a newspaper or periodical shall infringe the creation of any author, artist, or other copyright owner, where the publisher of the newspaper or periodical shall show that he was not aware that he was infringing and that such infringement could not reasonably have been foreseen, the person aggrieved shall be entitled only to an injunction against infringement and against the continuation or repetition of such infringement in future issues of such newspaper or periodical, but shall not be entitled to any profit made by such publisher from his contract or employment to carry such advertising matter, nor to damages, actual or statutory, against him: Provided, however, That no injunction shall lie against the completion of the publication and distribution of any issue of such newspaper or periodical containing alleged infringing matter where actual manufacture of such issue has theretofore commenced: Provided further, That this clause shall in no wise limit the remedies of the person aggrieved against the advertiser, advertising agency, or the person or corporation responsible for the infringement: Provided further, That if the publisher of the newspaper or periodical is in anywise interested in the commodity of subject matter advertised, or is the advertiser, or advertising agency, or engaged in business with the advertiser or advertising agency in such wise that the publisher is entitled to any profits or benefit from the sale of the subject matter advertised, or from the handling or placing of such advertising matter (other than profits derived by the publisher merely from his contract or employment to run such advertising matter in his newspaper or periodical) then this subsection shall not apply." These suggestions are offered to your committee in the belief that they are in the public interest and are not in conflict with the main purpose of the measure which is now pending before you. The CHAIRMAN. Now, Mr. Klein, we will hear you. STATEMENT OF WILLIAM KLEIN, ATTORNEY FOR THE SHUBERT THEATER CORPORATION, NEW YORK CITY Mr. KLEIN. I am attorney for the Shubert Theatrical Corporation, Al H. Woods, and various other theatrical managers of the United States. Mr. SIROVICH. Have you a message from Mr. William Brady? Mr. KLEIN. I want to say to the committee that I am very thankful that you extended the time for us to be here until to-day. Mr. Brady was operated on last Monday. He is doing very well but he will not be out for two weeks, and he would appreciate it very much and hopes he will be permitted to appear before the committee to express his views on the subject of divisible copyright. Mr. GOODWIN. Convey to Mr. Brady the sincere hope of the committee that he will recover promptly. Mr. KLEIN. Thank you; I will. The position taken by the managers that I represent in so far as the divisible copyright bill is concerned, is no different than it was, when we presented it to the committee at the last hearing, some time in April a year ago. We naturally feel keenly the inroads of movie, talkie, radio, and so forth, on the treatrical profession. During the progress of my talk, I think I will convince you that the position of the authors is not the position that was pointed out to you and shown to you by their spokesmen every time the copyright bill has come up, but that his position has been one of wonderful returns in the way of royalties on the plays presented by the management presenting them as spoken drama, whereas the producer has been the one that has taken the terrific losses, if there were losses to be taken. Mr. LANHAM. Does the author take it or the playwright? Mr. LANHAM. That is just the question with him. It is not a question of loss; the question is how much return. Mr. SIROVICH. Nine plays out of ten have always been failures. Mr. KLEIN. That is what I will show you. I was going to discuss that now, but in view of the fact that Congressman Lanham made the suggestion, let me call to your attention some of the royalties received by some of those "poor" authors; and in this connection I want you gentlemen to know that if the manager did not continue producing play after play the theater would be dead, because he attempts in some manner to recoup from one the losses on the others. If he does not get the benefit of the stock, talkie, and moving-picture rights (which help retrieve some of his losses), then what I said at the last hearing and a moment ago is absolutely so, because without these additional rights there can be no incentive to the producer to continue; and I say to you that with motion pictures and with talkies as we have them now the spoken drama is slowly disappearing. Just consider that where we had in the United States of America up to two years ago 500 stock theaters in which were presented plays with living actors, there are now probably 42 in the United States, scattered throughout all the States of this country, and practically all of them starving. There is more unemployment in the theatrical business to-day than there has ever been in the history of the profession. It is common knowledge that theaters in the city of New York were closed during the lucrative months of the year when profit should be made in this industry, in which over $100,000,000 is invested in the city of New York alone, and perhaps $500,000,000 and more throughout the United States to-day. Mr. LANHAM. The fight there is against movie and talkie. Mr. SIROVICH. Would you like to present your statement without interruption and then subject yourself to cross-examination? Mr. KLEIN. I certainly would. I would like to express my thoughts as I go along. It is common knowledge that unemployment is extremely great in the first-class show business, and as an illustration I will give you just one incident. Only less than two weeks ago the Shubert organization, intending to produce a new play, called in New York City for a chorus intending to use 25 or 50 girls, and at this call 500 or more appeared whereas ordinarily no more than 50 would apply. It was a mob. This shows the inroads of the talkie and the movie upon the actors of the living, speaking stage, and as it applies to chorus girls so it applies to actors; hence it makes no difference, in so far as my argument is concerned. But let me revert and give you the facts as to whether the author and composer are so downtrodden as has been claimed to the committee time and time again by counsel and spokesmen for their organization, and let us see whether there is justification in their coming to you and asking you to annihilate this industry in the United States of America, and I can not be any too sincere when I say these inroads are taking the lifeblood of the industry. The Beggar on Horseback was produced some little time ago by Winthrop Ames, and the authors received $79,760 in royalties, and then received $24,962 for their share of the picture rights, totalling $104,722. I mean the rights to the motion pictures. I will give you the royalties paid by the management of Al H. Woods's office: Bayard Veiller, the author of The Trial of Mary Dugan, received $312,650 in royalties and $62,500 on account of the moving-picture rights. The Shanghai Gesture paid $128,000 to the author. The Green Hat paid Michael Arlen, the author, $236,411. Potash and Perlmutter paid the American authors, Montague Glass and Jules Eckert Goodman, $378,285 in royalties. Samuel Shipman, the author who wrote Friendly Enemies, received $232,331. William A. Brady paid Elmer Rice, the author of Street Scenes, up to March 29, 1930, $100,818 royalties. Gilbert Miller paid the author of Journey's End $141,000 in royalties, up to March 1 of this year. Constant Wife paid royalties of $122.226 to the author. The Play is the Thing paid $69,489. Her Cardboard Lover paid the author $43,722, and The Captive paid the author $34,693. Berkeley Square to date has paid $35,111 in royalties to the author. Connolly, who testified before you the other day, and his partner Swanstrom paid the authors and composers of Sons o' Guns the small sum of $102,000 up to April 5, 1930. Whether the producers will ever make that is another question, but the authors received their money whether the producer made a dollar or not. Brady and Wiman paid the authors of Road to Rome the sum of $113,365 royalties and $12,500 for share of picture rights. The Little Show authors received $80,313 royalties. The authors of Command to Love received $86,676 royalties. Hammerstein paid the authors of Sweet Adeline $42,000 in royalties. Lawrence Weber paid $118,067 to the authors and composers of Little Jesse James. Let Us Be Gay brought to the author royalties of $52,180. Schwab and Mandel paid the authors and composers of The Desert Song $572,113.56 in royalties, a first-class performance. The authors of Good News received $401,211.18 in royalties; the authors of New Moon received $261,402.88 in royalties; the authors of Follow Thru received $251,167.12 in royalties. Sam Harris paid the authors and composers of Animal Crackers $109,070 in royalties, and paid the authors of The Spider to date $114,922 in royalties. Aarons and Freedley paid the authors and composers of Hold Everything approximately $135,000 in royalties; Oh Kay will bring the authors between $175,000 and $200,000 in royalties; the authors of Funny Face received $135,000, and the royalty paid on Tip Toes is $130,000. The owners of Fifty Million Frenchmen paid in royalties for 21 weeks $54,074. Broadway paid royalties of over $300,000 to the authors; Coquette, over $60,000; and The Bat, over $300,000. And here we have three in which the figures are more staggering. For My Maryland, the Shubert Bros. paid the authors $181,000; for Blossom Time they paid $595,160.35 in royalties; and for Student Prince they paid in royalties $410,373.88. For Countess Maritza they paid $73,000 royalties, for Circus Princess they paid $43,094.95 in royalties, and for Red Robe they paid in royalties $37,208.07. I read those to you to show you the advantage of the author and composer over the producer, and the fact that the producer strives to make a dollar if he can. With an institution like the Shuberts, with fifty to sixty odd theaters in New York, and another 50 or 100 throughout the United States, it is absolutely necessary for them to continue these shows going whether they are successes or not, because they are presented on the road, after closing in New York, and with the hope of retrieving something if the show is a failure or a mediocre success in New York. When a show plays in New York City it then goes on tour of the United States and Canada, in pref |