Hallahan's piece contained the expression "good news" 15 times and the expression "bad news" 15 times. The Schwab and De Sylvia piece was considerably more sparing in the use of these expressions, but contained a song devoted to the topic of "good news."

Hallahan averred that his manuscript had been taken to Schwab & Mandel by a play broker, a defendant, who hotly denied it, the only heat generated on the witness stand. Considerable time was consumed by testimony averring that this play broker had been trailed to the offices of Schwab & Mandel and with denials that he had ever been there.

The court, however, attached no great importance to this feature, going deeper with the new idea that even if the defendants had had access to Hallahan's manuscript it would not have been important, as the manuscript itself was not copyrightable.

The second revolutionary precedent set by the court was the exclusion of expert testimony, which seldom, if ever, has been done before in a plagiarism

case.

Hallahan offered two expert witnesses in his favor. Judge Patterson of his own motion, as the defense offered no objection to expert testimony, and without denying the competence of the experts, declined to hear them in that capacity.

In setting this precedent the court followed for the first time a suggestion, but not a direction, of the higher circuit court, which is composed of three Federal judges. This suggestion arose out of an earlier case in which a great deal of expert, if not inexpert, testimony was introduced, expanding the record of the case.

Fully as important to authors in general, however, as, the barring of expert testimony was the inference to be drawn from the actual grounds of the decision, that the events set forth in the Hallahan manuscript were matters of such common experience as to be not copyrightable in the first place. Hallahan had testified that much of the material was drawn from his own experiences as a student in New York University, although he had placed the scene of his comedy in a small town institution.

Inasmuch as the court held that the play was not copyrightable any question as to whether or not the defendants might have had access to the Hallahan manuscript and any question as to possible anticipation of both manuscripts by older books was not regarded as of consequence.

The Hallahan manuscript was, of course, actually copyrighted; that is a copy had been deposited with the Library of Congress at Washington and a certificate had been duly issued to the author on February 19, 1927.

This theory, if followed in other decisions, will place in the interpretation of the copyright law the theory of the patent law that makes uniqueness or complete novelty a prerequisite to protection. No one can obtain a patent on an idea previously known. If the same principle is to apply to copyright then there can be nothing copyrightable that does not consist of elements that never existed before. Valid copyright will be restricted to a very few works which contain matter for which no anticipation can be found either in life or literature.

This theory overlooks an important difference between copyrights and patents. Copyrights are issued for works of art, which necessarily untilize elements of life in their make-up. The copyright is upon the work as a whole, which comprises the arrangement of the various elements as regards each other, plot, characters, dialogue, style and the like. Two authors may take the same elements of life and shape two entirely different works of art out of them by the different arrangements they impose on their materials. The thing that is copyrighted, then, is the arrangement as a whole and not the elements, and the fact that an author, whether he be expert or inexpert, lifts elements from life and sets a work down on paper gives him a copyrightable work.

In copyright there is no examination of the work and no search to determine novelty or uniqueness. But an application for a patent is subjected to close examination for many months, and the slightest anticipation in prior patents is cited against its claims.

Thus patents for things unknown before are sharply distinguished from copyrights for works of art which utilize the elements of life as seen and arranged by the author and in which the novelty consists solely of the author's arrange

ment. Hundreds of thousands of inventions supposed by their inventors to be novel are denied patent; nothing is denied copyright.

The proposed copyright bills which are under consideration by Congress should take cognizance of factors present in the Hallahan case.

A new principle should be introduced, that is, immaterial or irrelevant public domain and also obsolete public domain. When a plagiarist obtains his material from a current work and does not in reality get his ideas from other works he should not be permitted to introduce in defense the other works as anticipations of the plaintiff's work. In the case of works in which copyright still exists this may be termed immaterial or irelevant private domain. Where copyrights have expired the material, if not used by the plagiarist, may be termed obsolete public domain. This would also be immaterial and irrelevant public domain.

This principle is recognized in the British patent law. If an inventor applies for a patent he can not be denied it on reference to a prior patent 50 years or more old if the latter has never come into use. Similarly, expired copyrighted matter should not be cited against an author if the plagiarist has not in reality derived his work from it. The practice of plagiarists is to take anything they want and when sued to search through prior works for similar elements here and there and congregate them into an anticipation of the plagiarized work, although, in many cases, they never heard of the prior works until after they were sued. This practice of plagiarists makes copyright ridiculous and futile. A new principle of colorable imitation and proportional damage also should be introduced into the law. Where a plagiarist takes a work and twists it about and makes a hash of it with new ingredients he should be held for colorable imitation if not for whole hog plagiarism.

The principle of proportional damages is necessary under such circumstances, since at present the plaintiff must prove whole hog plagiarism or lose the case. If he proves this he gets all the profits, provided they have not been dissipated through dummy corporations or otherwise. This very large penalty may influence judges against deciding in favor of the injured original author unless a completely established case is made, which is necessarily most difficult.

If the courts were allowed to fix what they deem proper damages for the extent to which plagiarism has been practiced or colorable imitation indulged in then the injured author might more often recover some compensation for the loss of his work.

In order to assure the injured author of having something to levy on if he be successful stamp taxes should be attached to books and other evidences of use of the work and suitable sums impounded from profits. Plagiarists and those mistakenly accused of plagiarism may object to this but the prosperity of all is founded on the sure protection of intellectual property.

A tendency to import patent law viewpoints into copyright law is also seen in the pending Senate bill S. 21, introduced by Senator King of Utah (by request), which proposes to reduce copyright protection to seventeen years, the same term as patent protection.

The present law of 1909 allows 28 years, with a renewable term of 28, making 56 in all. Mr. Vestal's House bill, H. R. 139, calls for a copyright term equal to the life of the author and 50 years thereafter, the same as most European countries of the copyright union, but Senator Hebert's Senate bill, S. 176, makes the term 60 years, or but 4 years more than the present law, although last year's Senate bill was 70 years. Ten years was whittled off during the intermission.

I think Senator King would be up in arms if any one proposed to extinguish property rights in the silver mines of his State in 17 years. Yet an author or an inventor may readily expend much more time and effort than a silver-mine prospector in developing pay dirt. The author's or the inventor's meager 17 years are usually but 8 or 10 years, as it takes him a long while to find capital and get the invention introduced and popularized.

NEW YORK, February 19, 1932.

EDWIN HOPKINS.

This shows the hardships, the headaches, and the heartaches the authors, dramatists, and composers have to contend with in the

theatrical game. The least we can do is to present the evidence before the public and arouse them to recognition of this tremendous injustice which dramatic critics are imposing on them, when the critics are of the "smart-aleck" type as Mr. Brisbane said, and are permitted to writ destructive criticism.

Iwill also insert into the record an editorial by Ed Sullivan, from the New York Graphic under date of March 1, 1932. He is the gentleman to whom I called the attention of our committee, who sometime ago was the editor of the Prize Fighting News, in New York, and who, when he had made a great success of that, was advanced to the position of dramatic critic of a paper in New York. He has invited me to accept his challenge to go to New York and see a play; then, he would write his criticism of it and I would write mine, so they can be judged. He spoke to me on the long-distance telephone, and I said I would go to New York. [Applause.]

[New York Graphic, Tuesday, March 1, 1932]

JUST FOR THE CONGRESSSIONAL RECORD

I was dozing peacefully, when the telephone rang. It had been a wearisome week end, with a late Saturday stretching into Sunday a. m. and a late Sunday night stretching into the early hours of Monday.

So when the phone rang, it roused no responsive chord in me. But it was the office calling. "Did you know you were attacked in Congress to-day?' asked a voice. "Listen, you've got the wrong number," I protested, wearily. "No; this is Mr. Swain's office," said the voice.

Even then I thought somebody was ribbing me, but when Howard Swain came on the wire, I knew it was on the level. He's the head man of the paper, and one of the reasons he's head man is that he doesn't waste his time in ribbing.

It seems that Congress in an off moment, had delved into the theatrical situation. In one of the bursts of oratory, Representative Sirovich (Democrat, N. Y.) had pointed to the fact that an evil of the theater was contained in the promotion of former sporting editors to the rank of dramatic critics. Representative Sirovich went beyond that. He signaled out "Ed Sullivan of the New York Graphic" and pinned the bulk of censure upon me.

After scanning the United Press reports in the later editions, I called Doctor Sirovich at Washington. He denied that he had been quoted correctly, but he did uphold his thought that a former sports writer was not qualified to be a dramatic critic..

Congress, as I understand it, may even consider licensing dramatic critics to make them prove their fitness. This suggests some happy thoughts. It would be exciting to see Bob Garland, another congressional target, come marching down to his aisle seat on an opening night with a huge number decorating him fore and aft. Eventually, the dramatic critics would be just so many sandwich men. Footnotes on programs could list the critics' numbers, so the audience might indulge its curiosity.

Just what license would be awarded to me I don't know. After rereading the dispatch from Washington, in which I am referred to as a former prize-fight promoter, I fear that, if I do get a license, Doctor Sirovich will insist on No. 13. While licensing the critics to establish their fitness, I'd suggest that they first license playwrights and producers to determine their fitness.

CONDITIONS ARE BAD, NOT CRITICS

The temptation to clown this congressional investigation is keen, but Doctor Sirovich, at all times, has been a friend to the profession. However, I do not believe that he, or his congressional colleagues, are accurate in their findings in this particular case.

What is wrong with the theater is its playwrights, not the dramatic critics. To paraphrase Joe Schenck's summation of the talking-picture ills, you can say "There is nothing wrong with the theater that good plays can't cure."

The present period of depression has accented this fact. For instance, during last week even the smash-hit shows of Broadway were peddling their tickets at the cut-rate agencies. Inasmuch as the very shows lauded by the critics failed to do business last week, it is evident that the most potent factor in the present discussion is hard times, rather than harsh criticism.

As a newcomer to their ranks, I'd say that the 15 dramatic critics, the firststringers, represent a sane jury and an accurate cross section of sage opinion. If I authored a play, and these dramatic critics turned in a majority verdict against me, I'd accept it as an honest and accurate opinion. I wouldn't whine for mercy, after originally asking for justice. There is a distinction.

SIROVICH WILL BE GUEST CRITIC

During my telephone discussion with him, I told Doctor Sirovich that he had been misinformed. I invited him to attend the theater with me on any night which is convenient to him. In the near future he will accompany me to a first night.

Following the show, we will both write our reviews, and both will appear in this paper. I'll make a small wager now that Doctor Sirovich will be more harsh in his criticism than myself. And I'll make another wager that the majority verdict of the local critics will be more accurate and constructive than Doctor Sirovich's findings.

When I first came into the dramatic arena, I held dramatic critics in low esteem, just as Dotcor Sirovich does now. Yet, if you will follow the reports of the first stringers and study them, you'll be convinced that they know their jobs a lot better than, for instance, Congressmen.

I say now for the benefit of the record that the dramatic critics of New York can pick any individual who is a member of their profession and I shall be glad to debate with him on the subject of "justice of dramatic criticism."

Mr. Dies, you wish to make a statement?

Mr. DIES. Yes, Mr. Chairman. Last Monday I said that in view of the "smart-aleck" type of critics, I should be glad to get a blueback spelling book such as we had when we were boys, and have the critics here; then we could see just what they can do. And since there seems to be considerable dispute and uncertainty as to their knowledge, I suggest that the dramatic critics who have been writing some of these reviews should write a play of their own and produce it here. We will have an audience composed of Members of Congress to look on, criticize and review it.

The CHAIRMAN. I am going to call now on Mr. Albert T. Reid, vice president of the Professional Artists' League. [No response.] The CHAIRMAN. Is Mr. Myers with us? [Response: Yes.]

Then I will call on Mr. Abram F. Myers, counsel for the Allied States Association of Independent Motion Picture Exhibitors, of Washington, D. C.

STATEMENT OF MR. ABRAM F. MYERS

Mr. MYERS. Mr. Chairman, and gentlemen of the committee, I appear on behalf of the Allied States Association of Motion Picture Exhibitors, a national organization, and its several affiliated reginal associations, a list of which I would like to give now to your reporter to be incorporated here.

Allied Theaters of Minnesota, North and South Dakota, 509 Pence Building, Minneapolis, Minn.; Allied Theaters of Michigan (Inc.), 607 Fox Theater Buliding, Detroit, Mich.; Allied Theaters of Texas, 312% South Harwood Street, Dallas, Tex.; Allied Theater Owners of Southern California, 1914 South Vermont Avenue, Los Angeles, Calif.; Associated Theater Owners of Indiana

(Inc.), 312 Chamber of Commerce Building, Indianapolis, Ind.; Montana Exhibitors' Association, care of Washoe Amusement Co., Anaconda, Mont.; Allied Theaters of Wisconsin, 749 North Seventh Street, Milwaukee, Wis.; M. P. T. O. of Western Pennsylvania, 425 Van Braam Street, Pittsburgh, Pa.; M. P. T. O. of Maryland, 531 North Howard Street, Baltimore, Md.; Rocky Mountain Theater Owners' Association, 100 Broadway, Denver, Colo.; Independent Exhibitors (Inc.), 69 Church Street, Boston, Mass.; Allied Theater Owners of New Jersey, room 401, Corn Exchange Building, 303 West Fortysecond Street, New York, N. Y.; Allied Theaters of Louisiana, 908 Canal Street, New Orleans, La.; Allied Theaters of Oregon; 211 North Nineteenth Street, Portland, Oreg.; Allied Amusements of the Northwest, 2323 Second Avenue, Seattle, Wash.; Allied Theater Owners of Illinois, Standard Oil Building, 910 South Michigan Avenue, Chicago, Ill.; Allied Theater Owners' Association of South Ohio, Kentucky, and West Virginia, 1635 Central Parkway, Cincinnati, Ohio; Allied Theaters of Iowa, Circle Theater, Nevada, Iowa; Allied Theaters of Nebraska, Cooperative, Lincoln, Nebr.; Allied Theater Owners of North Carolina, care of Henderson Amusement Co., Henderson, N. C.

The membership of these associations consists of the owners of independent motion-picture theaters by which is meant motion-picture theaters which are neither owned nor controlled by, nor affiliated with, any of the producers and distributors of motion pictures.

The interest of these independent theater owners in the proposed revision of the copyright law, as well as the merit of their claims, will be made apparent by a brief review of the manner in which they are affected by that law in the conduct of their business.

In the operation of his theater an exhibitor uses many films in the course of a year, both feature pictures and short subjects. These pictures are copyrighted and the contract between the distributor and the theater is called a license agreement. It purports to license the films in question for reproduction in a certain theater for a certain number of days. Holding the films over for a longer period than that sepcified or playing them in a different theater, is treated, not as a violation of contract, but as an infringement of the copyright.

The CHAIRMAN. Would you repeat that last statement? I think this is the crux of the whole difficulty.

- Mr. MYERS. In the operation of his theater an exhibitor uses many films in the course of a year, both feature pictures and short subjects. These pictures are copyrighted and the contract between the distributor and the theater is called a license agreement. It purports to license the films in question for reproduction in a certian theater for a certain number of days. Holding the films over for a longer period than that specified, or playing them in a different theater, is treated, not as a violation of contract, but as an infringement of the copyright.

The CHAIRMAN. Would you dilate on the following: As I understand it, the complaints that have been received by the committee from many small exhibitors scattered about the country are that if they hire a motion-picture film for two days at a given charge, if they retain it a third day because of rain or snow or other inclement weather and do not return it the next day, that would be one thing: but the contention of the producers is that the exhibitors instead of using the film for two days, sent it out to some other theater and try to steal the extra day; then the exhibitors are called on for infringements of the copyrights.

When I interrogated Mr. Hess, counsel for the producers, on behalf of the committee, he contended that out of 20,000 motion-picture