author-I feel that no matter what you can do for him you should do it.

Mr. DIES. But in so far as the public interest is concerned, he has no right in and of himself, contrary to public interests. You mean in so far as it permits generally?

Mr. PAINE. If he creates something and somebody uses that to his profit, then it is only proper that the public who uses that for his profit should make some contribution to the man who created it.

The CHAIRMAN. Are you disposed to the little amendment that I am thinking of allowing at the present time, that wherever a fee is charged for admission, wherever a cover charge or any similar charge is made for profit, the author, and the composer should be entitled to his protection?

Mr. PAINE. As you say that, it does not sound so bad, that it is a very wide opportunity for activity on the part of the people making use of copyright music to cheat the author and composer.

The CHAIRMAN. How can they when they have your society to protect them?

Mr. PAINE. They are entitled to royalty. The law provides that if he does not make a cover charge he won't have to pay anything, so he changes the policy of his hotel, and he no longer makes a cover charge; maybe he has a scheme that we may never know-he may add 5 cents to the orange juice and another 5 cents to the bottle of ginger ale, another cost here and there; and there is no way by which we could say-representing the society for a moment-there is no way in which the society would be able to say that this man should pay a fee because no longer is he charging a cover charge, but he is still paying for his music through an increased cost on the

menu.

The CHAIRMAN. The man who does that says to Mr. Paine, who is the representative of these publishers, "When we buy your music on the sheet for the two or three musicians that play in our little restaurant; when we buy that music we have already paid you a royalty; we have already paid you a profit; we are not charging an admission fee; we have bought it; we have paid for it. The people would come just the same; it is not incidental to the main business." Mr. PAINE. When that question came before the Supreme Court of the United States they felt that it was not incidental to his business.

Mr. DIES. They were interpreting the theory of the law.

Mr. PAINE. They took the human side of the thing as well as the legal side, and they felt sure that this restaurant was operating music not for any charitable purposes; they were not charitably inclined toward their patrons in doing this; they were doing this because it gave that restaurant prestige, because it brought people into that restaurant instead of to the restaurant across the street; they were therefore doing that for profit.

Mr. DIES. I see your viewpoint. There is a little bunch ready to pounce down on anybody; they just sit there and wait like a flock of vultures; and the shyster lawyers have a system. You are not going to approve that?

Mr. PAINE. It isn't nice.

Mr. DIES. It is just a system of racketeering to deceive people who are ignorant of the law.

The CHAIRMAN. I understand this society collects on an average of two billions a year, and the most distinguished writer of that group, the most brilliant, has never received in a year more than $4,000 for his royalty. Sigmond Romberg told me that himself, for all of the work he is doing. We would like to know where that money goes to. Mr. Dies states that racketeering is going on in all States of the Union, and many of these authors and composers are wonderful men who are entitled to the respect of the people of the country; but there is an inside group that is running that organization for their own benefit, and Congress is going to put a stop to it for the benefit of the honest composer and publisher. We don't want to take anything away from you, but to work out a system between the author and the publisher that will do away with rackets.

Mr. PAINE. I think that would be a very commendable thing to do. You asked the specific question as to whether I would agree to such amendments as you outlined them.

The CHAIRMAN. I am only thinking aloud with you.

Mr. PAINE. I think we ought not to change the broad language of our present act. I think we might make whatever modifications we felt were necessary in order to correct any abuse.

Mr. DIES. Have you any suggestion to prevent this racketeering? Mr. PAINE. I have not, as a matter of fact. I understand that later on the Society of Composers, Authors, and Publishers will be heard.

Mr. DIES. You have never given this a thought?

Mr. PAINE. No; I have assiduously avoided mixing my business affairs-that is, the affairs of my association-with those of the society.

Mr. DIES. Yet you represent the same interests?

Mr. PAINE. No; the Music Publishers' Protective Association is to some extent a trade organization.

Mr. DIES. Are not the members of your organization as publishers almost the same as publishers in the American Society of Composers, Authors, and Publishers?

Mr. PAINE. The members of the board of my organization are in some instances members of the board of the American Society of Composers, Authors, and Publishers. The two organizations do occupy offices in exactly the same building.

Mr. DIES. The American Society of Composers, Authors, and Publishers have 12 members on the board of directors.

Mr. PAINE. They are not all members of my association.

Mr. DIES. How many members of the board of the American Society of Composers, Authors, and Publishers are members of your association?

Mr. PAINE. I could not say.

Mr. DIES. How is that managed, by just transferring your rights? The CHAIRMAN. Let us wait until the society comes here.

Mr. PAINE. The American Society is constituted in this way: At the present time a writer composes a musical work and, under the common law as it exists in the United States, he has a common-law copyright that gives him an exclusive right of performance, and he assigns it to the American Society, the small performing rights-that is, any performing right which is not a stage right really-and the

use of it in connection with radio broadcasts, the use of it in dance halls, cabarets, and so forth-they are small performing rights.

The CHAIRMAN. Mr. Paine, right here let me stop a moment and pause with you. Did you say they were small rights?

Mr. PAINE. Yes.

The CHAIRMAN. I contend that they are about the largest rights a human being has ever been deprived of. Let's call a spade a spade. Here comes an author like Sigmund Romberg, one of the greatest musical composers in America, if not in the world. He wants to get a copyright in his own name, but when he comes to get the copyright he comes over to the publishers. The publisher takes out the copyright in his own name; in other words, the copyright of the music is in the name of the publisher and the poor composer is the economic slave of the publisher. It is the fact that he has got to go to the publisher to get every right that inherently belongs to him; therefore this whole problem can be solved in this way: If an author or a composer has a copyright in his name, he can assign it or sell it outright; he can work with you.

Mr. VESTAL. Mr. Paine, what the chairman has said here now brings out the first proposition, whether or not the law should be changed; is a copyright on publication or on creation. My judgment is that there ought to be a copyright on creation; then it will be in the name of the man who creates it and you don't have to have it published.

The CHAIRMAN. Mr. Romberg said he could name his own terms now, but I have been his physician, and I know the headaches and heartaches he had to go through in the beginning; and I want you to know, just as Fannie Hurst said here, so far as the authors are concerned it is the strong who receive the assistance, whereas it is the weak that need it. When a man or woman gets into fame or eminence, they run after him. That is why the mother gives all the tenderness to the child; when you are grown up you can take care of yourself.

Mr. PAINE. In days of prosperity it may be true that the publisher makes a considerable amount of money out of the writer's work. The writer shares in everything that the publisher makes money on, but at the present time, when we are at the very rock bottom of business, the writer is the one that is receiving the advantages, is receiving the largest share of returns, because his royalties are not on a percentage basis but on a flat copy rate, and the writers receive their royalties, get practically all of the profits that the publisher is making at the present time.

I am going to hurry on. There isn't anything that I have to offer here that is in opposition to aything you gentlemen are endeavoring to do.

Mr. DIES. You will cooperate with us in preventing these abuses? Mr. PAINE. Yes. I want to say that it has been a pleasure, it has been a very trying thing to the management of the society to have these abuses that you speak of crop out. It has been largely due to the set-up of the society, and I think they will be able to explain their attitude to you very fully when they come down here. I think you will find that the attitude of the society toward these things will be extremely cooperative.

The CHAIRMAN. Mark you, Mr. Paine; I want you to know that so far as I am concerned I am in favor of the society; I think the authors and composers have a society that will do the collecting for them; but we are against the self-annointed, the self-appointed, selfconstituted kings who are using this organization as a racket.

Mr. PAINE. The publisher really needs the society. It serves a very large public function.

The CHAIRMAN. Thank you, Mr. Paine. Do you want to go ahead? Mr. PAINE. In coming here I have not come with the idea of speaking pro and con. I simply want to bring some ideas to the committee.

The CHAIRMAN. Have you any suggestions for the committee, so that when we sit down to write this bill we will have some definite recommendations that you, with your wisdom, knowledge, and experience, can give? Or do you think these five things that we have enumerated cover exactly what you want?

Mr. PAINE. I think they do to some extent.

The CHAIRMAN. Congressman Vestal asked you a question I don't think you answered. Are you in favor of giving to the author or the composer the right to copyright his own creation? Is that right, Mr. Vestal?

Mr. VESTAL. That is practically so.

Mr. PAINE. Let me answer it this way: I would like to see a provision in the bill which permits the copyright to be taken out in the name of the author, that it be not automatic, that it be procured in some way or other.

The CHAIRMAN. A restriction of the copyright?

Mr. PAINE. A right that comes into being on publication.

The CHAIRMAN. If it is registered, you know its author. So you are in favor of allowing an author to copyright his work provided it is registered in the Copyright Office?

Mr. PAINE. Yes, sir.

The CHAIRMAN. There is no necessity for that.

Mr. PAINE. I would also like to see copyrights copyrighted as an entity.

The CHAIRMAN. There is no necessity for that if he copyrights that as a whole.

Mr. PAINE. Provided it is not so broad as to become an assignment.

The CHAIRMAN. That is a privilege.

Mr. PAINE. I think it should be assignable only as a whole. Mr. VESTAL. When have you changed your mind on this proposition? I understood you before this committee for years to be in favor of the divisibility of copyrights. That is, if a man writes a manuscript, that he ought to have the right to assign, as the chairman has said, to assign the serial rights; for instance, give legal title to the serial rights to the Saturday Evening Post, or any other

concern.

The CHAIRMAN. That is what he does do when he assigns it.
Mr. VESTAL. Not now.

Mr. PAINE. I have never been in favor of that.

Mr. VESTAL. My judgment is, Mr. Chairman, if I may so speak, that the man who copyrights or the man who creates a piece of material ought to have the right to do with that material what he

pleases. That is, if he wants to sell the serial rights to the Saturday Evening Post, he ought to have the right to sell the serial rights and give legal title to same so that the Saturday Evening Post may protect that serial right. If he wants to sell the book rights to somebody else, the book publisher may have legal title to such rights. If he wants to sell the motion-picture rights, the motion-picture people may have a right to protect their rights. You are opposed to that, Mr. Paine?

Mr. PAINE. No.

The CHAIRMAN. Just a moment, Mr. Paine. We have had the book publishers and the other organizations who have met with the authors, composers, and publishers, and they have unanimously agreed, and have so stated in the record, and have been before our committee, that they are in favor of this fundamental concept, first that an author shall have the right to copyright in his own name, provided it is registered in Washington; second, the right to assign his piece of property, his copyright material, to anyone who wants it, provided that complete assignment is registered and recorded in the Copyright Office; and third, that every author who has anything copyrighted in his own name and wants to license anyone for any particular part; that is, he can license the Saturday Evening Post for the serial rights, he can license the motion-picture people for the motion-picture rights, to another the dramatic rights, and another the radio rights, he has the privilege to license and record it. Do you agree to that proposition?

Mr. PAINE. As you express it, I do; but I want to see that in language, too.

The CHAIRMAN. Of course, we will put that in language so that you can see it. Everyone that has come here wants to see the language in which it is put.

Mr. PAINE. The whole of my life has been in the field of musical composition. I know very little about the copyrighting of drama, books, or various other things.

The CHAIRMAN. I want to assure you, Mr. mittee will do justice to all parties concerned. grind or interests to serve. We want to do

square.

Paine, that this comWe have no axes to all that is fair and

Mr. PAINE. I first came here representing the Victor taking machine; I then came representing Warner Bros. pictures, and later came down representing the Music Publishers' Protective Associa tion, but only on this one field.

The only other question I have is the question of the Rome convention. The only point I would suggest for the committee's consideration there is this: Years ago I recall in an opposition drive that was filed to the entry of the United States to the Berne convention, the question of retroactivity came up. I only offer it as a suggestion. Under the Rome convention there is no possibility of saying that works now.

The CHAIRMAN. The Secretary of State is cooperating with our committee and will help us to go into the matter of the Rome convention. Could you prepare a brief for us and file it later with the committee?

Mr. PAINE. I will be glad to.