In closing, let me say that we again are willing to see that the copyright owners are compensated; but we say that unless it is done at the source there will be nothing but confusion, and, sooner or later, the law will have to be changed. Because we just do not believe it will work, and we believe anybody who believes it does or will is working against his own best interests.

I thank you.

Mr. LANHAM. Thank you, Mr. Capehart. Now, Mrs. Glasgow, of the American Penwomen, asked to appear for 3 minutes this morning. We had hoped to have her appear at the beginning of the hearing, but we have 3 minutes left now before the time for the committee to ask questions, and we will hear you at this time, Mrs. Glasgow.

STATEMENT OF MRS. BROWN TOWNLEY GLASGOW

Mrs. GLASGOW. Thank you very much. I feel very keenly that this is a great honor. I like a good show and I like opera and all that sort of thing, but I agree with Mr. John Shearer that this is the very best show I have ever attended. And never in my life have I been so thrilled as I was yesterday morning when I saw this assembly together. I came in here with my hope absolutely broken from the moorings and away down, and I left with faith. Now I am back this morning because my faith still lives.

I just want to say one thing in getting acquainted. I am a Kentuckian and so, whatever mistakes I make, remember that. Now, then, when I said to a lady yesterday that I am a Kentuckian, she said, "Can you read?" I said, "Yes; and some people say I can write a little."

I have an instance that is personal, and I want to know if it is my privilege to relate it?

Mr. LANHAM. You have only a very brief time.

Mrs. GLASGOW. Will you, then, give me the privilege of reciting a verse that I wrote to this committee?

Mr. LANHAM. If it is within the time, it is perfectly all right.

Mrs. GLASGOW. I wrote a little verse which I entitled "Brain Thiefs", because they stole the title of the first song I ever wrote, which was Shadows.

They also took my last book, called Society's Mountaineer and made from it a picture entitled "The Call of the Savage." It was my life's story, and it was a very serious thing as it happened. Now, then, I want just to give you this little verse, which is called Brain Thiefs.

They will steal your title if need they one,
Knowing all the time they are doing wrong;
But pass a perfected bill, and it would not be long
Until they would take winged flight and all be gone.

But you cannot steal the product of another's brain
And, if you do, you will be treated the same
As any other crook in the world's domain.

Do not try to steal the work of another's brain,
Using his ideas and signing your name;
For if you do, you are as much to blame

As the lowest criminal lugging his ball and chain.

し

Now when our brain call comes, we have no leisure.

The books and songs we write for your knowledge and pleasure

Are torn from our souls, measure by measure.

And all we can really claim, all that we can ever really claim,
Is His priceless gift, our human brain.

Gentlemen, forge one more link in justice's chain:

Give us what is ours, we beg, in God Almighty's name.

Mr. LANHAM. Thank you very much, Mrs. Glasgow.

Now, Mr. Capehart, may I ask you a question or two, please, sir, and then the various members of the committee would like to ask you some questions.

Of course, your statement is readily understood that the radio necessarily has injured the business you represent.

Mr. CAPEHART. That is true.

Mr. LANHAM. And it is also readily understood that these secondary users of music need proper protection so that they might not be overcharged in the use of mechanical music. It seems to me, however, there might be other grounds than the one you stress from the standpoint of relief in copyright legislation. For instance, you stress the ground of making the compensation to the author at the

source.

Let us take that with reference to a play or with reference to a song. I go out and buy a copy of a play. The author receives part of the royalty on that copy of the play that I buy. But does that give me the right to do whatever I please with the play?

Or I go out and buy a copy of a song that is copyrighted. The author receives a royalty on the sale of the copy. But does that give me a right to do anything I please with that song? Has his compensation all come at the source?

I am not saying this now from the standpoint of any judgment or opinion as to whether these secondary users should pay or should not pay, because this gets down to being a practical matter, and as I understand, it is not the policy to charge these people who have purely an incidental and secondary use of the music. But how about the play and the song, applying your principle of paying at the source?

Mr. CAPEHART. My answer to that is that you publish a play, and it is put on so much paper; it is something you talk and you give away; you speak it. Whereas with records, our phonographs play records, and they wear these records out, they buy these records, they put them on their phonographs and the phonograph records are worn out, and the record is soon discarded.

Mr. LANHAM. The same may be said of the copy of the play or song; it is simply a difference of the material. Neither one produces itself. The play does not produce itself, the song does not produce itself, and the record does not produce itself. They are materials, each representing and embodying the work of an author. Now, if you should be paid at the source on one kind of material that does not produce itself, why, just as a matter of principle, should he get all of his compensation at the source on the record?

You say you are opposed to wired radio. Suppose wired radio should come in vogue and we had performances over the wired radio, instead of having them by orchestras and having them by phono

graph records, where the author has been paid at the source on the record, should the wired radio that would take the place of broadcasting and get to be a large business be allowed to say, "Oh, Mr. Author, you got 2 cents on this record we are using over, over, and over again, and you were paid at the source"?

For instance, I think there is a great deal of merit to the proposition of protecting your industry, which is necessarily and naturally on the wane since radio has come in, and certainly there is no disposition, I think, on the part of anyone on the committee or otherwise to try to place a burden upon the secondary users, or upon your industry; but I do not quite see the force in that particular argument, when it seems to me other reasons and other grounds are still more forceful with reference to favorable action with reference to your industry.

Mr. CAPEHART. With regard to wired radio, we cover that when we say it must be performed within the four walls.

Mr. LANHAM. Well, the purpose of wired radio, as I understand it, is not a performance within four walls.

Mr. CAPEHART. We say in our amendment that the rendition must occur within the four walls.

Mr. DUNN. Will the gentleman elucidate that, please-what do you mean by four walls? For instance, in the summertime, when the doors and windows are open, you might be able to hear that thing for half a mile.

Mr. CAPEHART. That is true. It means that the device will be played within the room, and there won't be any loudspeakers and wires run over here to half a dozen other locations. It is put in there primarily to protect our industry against wired radio and to protect the copyright owner against the man buying a record on which, at the present time, he gets 2 cents, and playing that record maybe to as many as 3 or 4 or 5 thousand stores. Because if that should happen and should become the law of the land, or if that is what the public wants in America, then we are out of business in this industry.

Mr. DUNN. For example, you say "in the four walls", and I have been in restaurants that are very, very large, and they have a phonograph machine and an amplifier attached to it, and the room is probably at least 100 feet in length and about 60 feet wide, and they put dance tunes on the machine, and it could be heard between those four walls in a big room. Is that who you mean? Mr. CAPEHART. Maybe when I said "four walls" I should have explained that. Here is what the amendment says, "other than the place where the coin-operated machine is located." It means it must be where it is located. It is a fact, if the doors are open, it might be heard further than the four walls; but that is the purpose of it.

Mr. DUNN. You mean the machine does not have any wires or anything attached to it but is just an ordinary machine in a room? Mr. CAPEHART. That is right.

Mr. LANHAM. May I continue my question and make this addition to it? Suppose you write a very beautiful song that is popular, and suppose a hotel uses the record of that song and has control of its radios, and it puts on a record with your song: "Be sure, you

ladies who are stopping in the hotel, to visit our beauty parlor, where you can get a marcel wave for so much, and where you can get some other beautification for some other price, which is exceptionally good; do not forget our restaurant and Knight Holton room, or whatever the room may be called, where we serve the very finest meals for such-and-such a price. Then we have a drug store right here under the same roof with you, where you can get this, that, and the other cosmetics", and so forth.

Now you have written this song, and what the people are listening to and want to hear over that radio is your song, and all this commercial advertising is thrown in. Do you think the hotel man then would be justified in saying, "I paid 2 cents to you, as the writer of that song, and I can just use it for any old purpose I please and your compensation is over with"?

Mr. CAPEHART. Well, Mr. Lanham, anybody who would do that would come under this class two we are talking about of using music purely for profit. I mean that would be part of their existence and the copyright owner should be properly compensated. I do not see the difference between that and the secondary and incidental users of music. Somebody made that record on which they were advertising cosmetics and they incidentally put a song in there that was copyrighted. Now, somebody made that record and whoever made that record should pay to the copyright owner.

Furthermore, of course that is not a type of record we have. At no time is anything of that sort ever played upon our phonographs.

Mr. LANHAM. I understand that; I am simply taking your analogy of payment at the source.

Mr. CAPEHART. We are just as anxious as anybody else to find a solution to this and maybe there is some way that a law could be written that would give the kind of protection that you want. The whole trouble comes with those first two classifications.

Mr. LANHAM. I understand that and I think the committee understands the position in which your industry is placed and that there is no disposition in the world either to do you an injury or to do an injury to the secondary owner.

Mr. CAPEHART. I appreciate that.

Mr. LANHAM. But let me bring your attention to one other thing that has been developed in the hearing, for which I am sure your industry is not and could not in any way be responsible. For instance, when Mr. Waring and Mr. Lombardo and other interpreters of music appeared before the committee, they said frequently that in their programs given over the air they were taken down by some recording companies (perhaps not reputable or wellknown recording companies; I do not know about that), and then playing them right across the street from them, or in advance of their performance, at the same time when they were about to go on the air, playing some of their productions and interpretations and placing them in competition with those who had paid nobody anything.

Of course I know that does not apply to your industry; that you do not manufacture records at all, but there is a situation we also have to cope with, with reference to the phonograph industry. Mr. CAPEHART. That is right.

53579-36-52

Mr. LANHAM. And in the making of it, there, perhaps, the performer or the copyright owner does not even get the money at the

source.

Mr. CAPEHART. Well it seems to me our exemption covers that and eliminates that. It may be it could be changed and simply say that the record cannot be played or the perforated roll cannot be played except when it is going to be heard within, as I described a minute ago, the four walls of the space where it is located, and there could not be any rebroadcasting of it. You see what I mean.

Mr. LANHAM. Of course they made the statement they had been played in a picture show, or something, right across the street from them, where they would be within the four walls.

Mr. CAPEHART. We admit that is perhaps detrimental to their business and there is no question but what it should be stopped. Mr. LANHAM. I am sure it would be detrimental.

Mr. CAPEHART. But in stopping some of those things that are bad-and they are bad-let us not pass a law that will put out of business or inconvenience the general public, or our industry, when we really are innocent in the whole transaction.

Mr. LANHAM. Surely.

Mr. CAPEHART. That is our position.

Mr. LANHAM. From the testimony that has been before us, I am sure the Society have had no disposition to try to charge the little fellow who really was not making a profit out of his music, but was using it purely incidentally, and the committee I am sure has no disposition in the world to be otherwise than fair to your industry. But I am just thinking if that proposition in principle, of paying it at the source, were carried all along the way, the radio people, for instance, could use phonograph records.

Mr. CAPEHART. You have to cover that; it has to be protected.

Mr. COLDEN. In view of the statements you made that the royalty should be paid at the source and in view of the fact that in the case of the phonograph Congress passed a law fixing an arbitrary price of 2 cents a record, which I assume was based upon the general use of the record in the home at that time, why should not a firm like yours that uses these records for profit pay an increased royalty, say, of 50 cents or a dollar a record that is used where you derive a profit from it, or say $50 or $100 per radio broadcasting station that uses that record? Is it not very unfair that the author and publisher receive but 2 cents for a record which is based upon the assumption that the record was going to be used practically and exclusively in the home?

Mr. CAPEHART. That is partially true; but the law must have recognized that records were going to be used in public places in this secondary and incidental users music in 1909; otherwise the exemption would not have said "coin-controlled" and given them that exemption. But we are in sympathy and in accord with your thoughts. Mr. COLDEN. What would you consider a reasonable amount for a royalty on a record that you use for profit?

Mr. CAPEHART. Let me say this: We do not manufacture records; we do not sell records.

Mr. COLDEN. But you use records?

Mr. CAPEHART. No members of our association use records. We manufacture these devices and sell them.