tee and the Dr. McClure Committee was created. This committee consisted consisted of Dr. McClure of the State Department, who acted as chairman, Mr. Richard DeWolf of the Copyright Office, a represenative from the Department of Commerce, and Judge Moore, of the State Department. Mr. Solberg, formerly Register of Copyrights, was in attendance at the meetings; I do not know whether he was a member of the committee or not. The committee prepared a revision of the Copyright Act which was mailed out by Dr. McClure over the signature of Cordell Hull on February 14, 1935. Accompanying the bill were 15 multigraphed pages of explanatory comments.

Hearings on the revised bill were started on Tuesday, February 19, 1935, in room 215 of the State, War, and Navy Building, Washington, D. C. On March 18, 1935, Dr. McClure sent out a second draft of the proposed copyright bill, accompanied by a letter explaining the changes made between the first and second drafts.

On April 1, 1935, Senator Duffy introduced in the Senate the final revised draft of the McClure bill; it is referred to as the first Duffy copyright bill (S. 2465). The bill was referred to the Senate Committee on Patents. On April 15, 1935, Senator Duffy of the Committee on Foreign Relations submitted a report from the Committee on Foreign Relations recommending the adherence of the United States to the Bern Convention and a revision of the copyright law as set forth in the Duffy bill. There is included in Senator Duffy's report (exhibit 4) a report from Dr. McClure explaining the revisions of the Copyright Act as set forth in the Duffy bill and recommending its passage.

On June 17, 1935, Senator Duffy introduced the second draft of the Duffy bill (S. 3047) which was referred to the Senate Committee on Patents and on the same day Senator McAdoo, chairman of the Patents Committee, reported the bill out of the committee 'accompanied by a report (S. Rept. No. 896, 74th Cong., 1st sess.), with a recommendation that the bill pass without amendment. Prior to this date (June 17, 1935), a hearing was held on the Duffy bill before the Senate Committee on Patents. The bill passed the Senate on August 12, 1935. On the same day Congressman Bloom introduced in the House of Representatives the Duffy bill as passed in the Senate; it was referred to the Committee on Patents.

(b) Daly copyright bill.-On January 27, 1936, Congressman Daly introduced a copyright bill (H. R. 10623); it was referred to the Committee on Patents. This bill was introduced after Judge McDevitt in the court of common pleas, county of Philadelphia, State of Pennsylvania, decided on January 16, 1936, that a recording artist was entitled to protection in his recorded works. Judge McDevitt's opinion was rendered in the case of Fred Waring v. WDAS Broalcasting Station.

Fred Waring, the leader of Waring's Pennsylvanians, in November 1932, recorded for R. C. A. Victor Co. the musical numbers You're Getting to be a Habit With Me (Victor record no. 24214a) and I'm Young and Healthy (Victor record no. 24214b). It was understood at the time these records were made that they were not intended for use for radio broadcasting, and each record carried the following warning:

"Not licensed for radio broadcasting."

The defendant used the records for broadcasting without the consent of Waring; the court granted an injunction on the ground of unfair competition. The outstanding feature of the Daly bill is protection given to the interpre tation or rendition of a work by a performer; many of the provisions of the Duffy bill are embodied in the Daly bill.

(c) Sirovich copyright bill.-On February 24, 1936, Congressman Sirovich introduced a copyright bill (H. R. 11420); this bill was referred to the Committee on Patents.

III. OBJECTIONS TO THE PENDING BILLS

Not one of the three bills in their present form is acceptable to the motionpicture industry. The three bills, however, could be merged into a good copyright bill by piecing together the sound clauses of each of the bills and rejecting the objectionable features. The industry suggests that this be done during the adjourned period of Congress so that a new bill in acceptable form may be introduced at the next session. In the meantime the Copyright Act of 1909, which is now in force, will give the motion-picture industry the protection it requires until a better and more modern law is enacted.

We have heretofore presented a number of objections to the Duffy bill. These objections were embodied in a pamphlet mailed to Members of Congress shortly

after the Duffy bill passed in the Senate. We now urge the same objections against the passage of the bill, and for the reference of the committee we are submitting a copy of the objections.

(Copy submitted and marked "Exhibit A".)

At this time, however, we desire to discuss briefly a few of the major objections to the Duffy bill.

The Duffy bill contains the following (p. 3, lines 3–5) :

"Provided, That the right to produce a motion picture shall include the right to exhibit it."

What is the legal significance of this clause and why was it inserted in the bill at the last minute? Various explanations are given why the clause was inserted; the explanation persists that the motion-picture exhibitors had it inserted to eliminate the music-seat tax or the performing-right tax.

Senator McAdoo, chairman of the Senate Committee on Patents, in his report (S. Rept. No. 896, 74th Cong., 1st sess., June 17, 1935) gives the following explanation (p. 6):

"This language is intended solely to prevent an author who has granted motion-picture producing rights from claiming that he is entitled to prevent the produced picture from being exhibited. It would be absurd to leave the way open for such contention by a scenario writer or by a writer of a story upon which the scenario is based. The divisibility privileges provided for in section 24 of the bill, amending section 42 of the act of 1909, might suggest to an author that his license to produce might not include authorization to exhibit, but the union of the two authorizations provided for in the language quoted does not affect the performing right of the author of copyrighted material, characteristically music, which may be incidentally used in the production of a motion picture. A music composer assigns no 'right to produce a motion picture. He merely assigns a right to use his music incidentally in connection with the production of a motion picture."

The difficulty with this "explanation" is that it does not explain. The right to exhibit a picture as well as to produce it is a matter of contract between the owner of the literary material and the motion-picture producer. At the time motion-picture rights are acquired, the right to exhibit is fully covered by the terms of the contract. For example, the standard form of contract of Twentieth Century-Fox Film Corporation for the acquisition of literary material contains, among other things, the following provision:

"(b) The sole and exclusive right, throughout the world, to mechanically produce, reproduce, and license the reproduction of spoken words taken from and/or based upon the text or theme of said literary property, on records, films, or other devices designed and/or used for the purpose of producing and reproducing sound in synchronism with, accompaniment of, or supplementary to motion pictures, using for that purpose all or a part of the text, theme, and/or dialogue contained in said literary property."

"(c) The sole and exclusive right to make, produce, adapt, sell, lease, rent, exhibit, perform, and generally deal in and with and copyright motion-picture versions of said literary property, with or without sound accompaniment and with or without the interpolation of musical numbers therein, and for such purposes to adapt one or more versions of said literary property, to add to and subtract from the literary property, change the sequence thereof, change the title of said literary property, use said title or any of its components in connection with works or motion pictures wholly or partially independent of said literary property, change the characters in said literary property, change the descriptions of the said characters, and use all thereof in new versions, adaptations, and sequels in any and all languages, and to register and obtain copyright therein throughout the world."

For the reference of the committee, I am submitting a form of our standard contract for the acquisition of literary material.

(Copy of contract submitted and marked "Exhibit B.")

It is of no importance how the clause (and at whose request) was inserted. The important problem to the industry is: What does the clause mean?

(1) Does it mean that a motion-picture producer must deliver to the exhibitor a motion picture free from all restrictions and royalties on the performing rights of any material, literary or musical, recorded in the picture?

(2) Does it mean that the copyright proprietor of a musical number when he grants the right to record in a motion picture must also convey the right to perform the music so recorded and if he has not the performing rights (and

in the great majority of cases he has not), must he obtain these rights to accompany the right to record?

(3) Does it mean that upon the passage of this bill, the right to mechanically record music and the performance thereof are united and cannot thereafter be separated and that the right to mechanically record music automatically carries with it the right to publicly perform the music so recorded?

If this provision is enacted into law, its interpretation will not be settled until expensive and disastrous litigation affecting these rights is carried to the Supreme Court of the United States.

We respectfully submit that the insertion of this clause in a copyright law will not solve for the exhibitors of motion pictures the problem of music royalties; in fact, it may add to their burden. The Performing Right Society now collects annually approximately $1,000,000 from theaters which exhibit motion pictures and only mechanical music is performed. It may be that under this clause, the motion-picture producers will be forced to acquire from the Performing Right Society a license to publicly perform the music recorded in their pictures upon payment to the society of the fees or royalties demanded. This would add to the cost of the production of the picture and it would be natural in turn to pass this cost on to the exhibitors by way of increased exhibition fees. The exhibitors would still be open to the seat-tax charge by the society for entr'acte, exit, and between-the-acts music performed mechanically in the theater, which music is not associated with any motion picture on exhibition in the theater.

We will discuss for a minute the practical difficulties in uniting these two rights. By the very nature of the rights (the recording and performing rights) and the manner in which they were developed and given legal protection, it will be difficult to merge them without doing grave injustice. The performing right in music had no protection in the United States until 1856 and then protection was only granted to the so-called grand performing rights or dramatic rights; that is, protection was only afforded to the music if it was part of a dramatic work. It was not until 1897 that the small performing rights in music were protected by the copyright law. England gave protection to these rights at a much earlier date. Under the Bulwer-Lytton Act passed in England in 1833, protection was given to the public performance of music. This right was given further protection by the General Copyright Act of 1842. However, we must bear in mind that by statute, the performing right in England was a right separate and apart from copyright and that the copyright in the music might be held by one proprietor and the performing right held by another and an assignment of copyright in the music did not affect the performing right in the music. It was possible to have the copyright of a number fall in the public domain but the performing right in the music in the same number remain protected.

We thus have an unusual situation so far as music is concerned. The right to print the music may be vested in one person, the right to print the lyrics vested in a second person, the right to publicly perform or sing the lyrics vested in another person, and the right to publicly perform the music vested in still another person. In our acquisition of rights, we frequently run across these situations. For example: Vesta Victoria claims the music-hall rights in England in the songs Waiting at the Church and Poor John; that is the right to sing these numbers in music halls. Some other person has the right to instrumentally perform the music of these numbers in music halls or elsewhere. Since these numbers were written prior to July 1, 1912, the right to mechanically perform these rights vests in the author unless he has since that time assigned these rights to a publisher or other person.

Further legislation on this point in England took place in 1882 and 1888. The Bulwer-Lytton Act of 1833 and supplemented by the Copyright Act of 1842 fixed a statutory penalty of 40 shillings for an illegal performance of music. A Mr. Harry Wall, of London, conceived the idea of collecting royalties on performing on a vast scale and carried on a business under the name of The Copyright Performing Right Protection Office. He purchased secretly the performing rights to a great many musical compositions and declined to announce to the public or to the users of the music the compositions in which he claimed rights, except upon payment of 21 guineas for each composition concerning which he gave this information. He proceeded in cooperation with a London solicitor ruthlessly to enforce his claims. This led to an investigation by Parliament with the result that an act was passed requiring a claim of the

performing rights to be stamped on each sheet of music. In the absence of this claim, the performing rights were lost.

This law was further strengthened by the law of 1888 which left to the discretion of the court the damages to be assessed for an infringement and whether or not costs were to be imposed. On August 3, 1888, Wall and his solicitor were arraigned in court for illegal conduct in prosecuting these claims. The solicitor was suspended from practice for 2 years and Wall was sentenced to 3 months in prison (4 Times Law Reports, 749).

By the English Copyright Act of December 8, 1911, which became effective July 1, 1912, the performing rights and copyright were merged so that the performing rights in music are now included in the general copyright in music. The right to mechanically record music is comparatively a recent right; the perfection of the mechanical reproduction of sound was a very slow process from 1852 to 1886. At the time the Bern Convention first met in 1886, music was mechanically reproduced by music boxes and hand organs or Barbary organs. Swiss manufacturers had a monopoly on these instruments and succeeded in including in the first Bern Convention-that is, the International Union for the Protection of Literary and Artistic Works-a provision declaring that mechanical reproduction of musical airs was not infringement of the music. This provision was not removed from the Bern Convention until the Convention held at Berlin in 1908. In the United States, mechanical recording did not receive protection until the passage of the Copyright Act of 1909. Prior to that date, phonograph records and music rolls were held not to be copies of sheet music. In England, the courts ruled in a similar way; the English Copyright Act of 1911 included recording as a protected right, but in England, the right to record the music mechanically for all music created prior to July 1, 1912, reverted not to the copyright proprietor but to the author.

There is very little music in the United States (or elsewhere for that matter) in which the recording rights and the performing rights are vested in the same person. A great majority of the music publishers and the composers of music are members of the American Society of Composers, Authors and Publishers; upon joining the society, both the publishers and the composers assign to the society for the term of membership, which is 5 years, the exclusive right of public performance of the small performing rights in the music "immediately upon the work being written, composed, acquired, owned, published, or copyrighted."

The right of public performance as set forth in the contract of membership extends to radio broadcasting, telephoning, wired wireless, and all forms of synchronism with motion pictures and the term "public performance" is defined in the membership contract to mean vocal, instrumental, and mechanical renditions.

In addition to the American Society of Composers, Authors, and Publishers, there is a Songwriters' Protective Association organized in 1930 or 1931 which includes in its membership from 400 to 500 leading songwriters and composers in the United States, most of which are also members of the American Society of Composers, Authors, and Publishers.

Article IX of the articles of agreement, constitution, and bylaws of the Songwriters' Protective Association reads as follows:

"Each of the members of this association agrees to and does hereby assign to the association, or to such nominee as the association may from time to time designate, any and all synchronization, recording, television, and/or radio rights to any song or musical composition which he may hereafter write or compose (other than a dramatico-musical composition) as are not included in the small rights assigned to or which become the property of the American Society of Authors, Composers, and Publishers, this section applying particularly but not being limited to rights of the character involved in the agreement heretofore made between Electrical Research Products, Inc., and Edwin C. Mills, as agent and trustee for music publishers. The said rights shall be held by this association in trust for the members making such assignment, and any and all moneys received from the exploitation of said rights shall be distributed in such manner as the council may from time to time direct."

Under this membership agreement, each member assigns to the association all the performing rights which the member has not assigned in his membership contract with the American Society of Composers, Authors, and Publishers and, in addition thereto, he assigns the synchronization and recording rights of the music he creates during the term of the membership contract.

The Songwriters Protective Association differs from the American Society of Composers, Authors, and Publishers in that it is not a collecting agency of royalties for the writers. It permits its members to make contracts for the creation and publication of their works upon terms suitable to the association. The motion-picture industry is now working under a waiver received from the Songwriters Protective Association. The Songwriters Protective Association has also approved a standard uniform songwriters' publication contract. This publication contract fixes the minimum royalties payable to an author. If and when the conditions of this standard contract are fulfilled, the Songwriters Protective Association allows the author to transfer certain rights to the publisher or to the motion-picture producer or other employer, as the case may be. The inclusion of the provision now under discussion in the Duffy copyright bill or any other copyright bill would throw into disorder the settled and fixed relations on recording and performing rights. For the reference of the committee, I am submitting a brief outline of the development of various rights in literary material by legislation in the United States. (Submitted and marked "“Exhibit C.”)

IV. TERM OF COPYRIGHT

We appreciate that the length of the term of copyright protection must be arbitrarily selected; it is of no great importance to the motion-picture industry whether the term is long or short, provided the provisions of the act relating to the term of copyright are concise, clear, and definite as to the persons who may own the renewed term of copyright so that these rights may be acquired at the present time. The term in the three bills now pending before the committee is, generally speaking, fixed at 56 years. In the Duffy bill, it is intended that the author or widow or children, as the case may be, will automatically have the last 28 years of the copyright without the formality of an application therefor. The Daly bill closely follows the Duffy bill in this respect. The Sirovich bill follows along the same line with certain restrictions on assignments beyond the 28 years from the date of copyright. (See sec. 42, pp. 32-33 of the Sirovich bill.)

These restrictions in the Sirovich bill for the purpose of sale or assignment divide the copyright term into two periods of 28 years each and render null and void any agreement by the author to dispose of any interest in the copyright beyond the first 28 years. These clauses or sections should be drafted so that the rights in the extended term or renewed period immediately vest in some person and may now be commercially used and sold by the author, widow, or owner for the last 28 years, thus making it clear and definite that there shall now be available a person who can safely and adequately deal for the rights for the extended term.

We urged at the hearings on the Duffy bill that the term of copyright be fixed for the life of the author and a period of 50 years thereafter. This suggestion was met by the objection that such a rule would give a longer term of copyright in works by different authors because of the different ages at which authors died. This objection is threadbare and age-worn and was first used by Lord McCauley when he was a Commoner and as a member of the House of Commons opposed the provision of the Talfourd Act which proposed to fix the term of copyright as the life of the author and 25 years after his death. After 2 or 3 years of bitter dispute, the law was finally passed in 1842 in England fixing the term at 42 years after publication or 7 years after the death of the author, whichever was the longer period.

The first copyright known in England was called common-law copyright and was perpetual. In the case of Donaldson against Beckett, decided in 1774 by the House of Lords, it was held that common-law copyright was destroyed by publication. Prior to that date the courts held that when the copyright protection afforded by the statute of Queen Anne (1709) expired, the common-law copyright protection revested in the author which permitted the author to resell his work two or three times to different publishers, as in the case of William Blackstone, who sold his commentaries at different times to different publishers for substantial sums. Blackstone was one of the judges in the case of Donaldson against Beckett and voted on each occasion for common-law copyright.

The first-known statute on copyright is the statute of Queen Anne, passed in 1709; it fixed the term of copyright for works already in existence at the time the act was passed at 21 years without the right of renewal. For works