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market we might find. It has been said that anybody who could anticipate the public demand for a book or a play could cover himself with diamonds, but as an example of what may happen in this international business let me give you an example from the other side. Here is Ibanez, who had a considerable following in Spain but who was practically unknown outside of that country. He wrote a book called “ The Four Horsemen of the Apocalypse,” something which when he wrote it, he was afraid would not be considered of much importance, and it really was a matter of propaganda. It was published in France, where it had a moderate success, largely because it took the French side in the war. I remember in 1918, while over there I spoke to a publisher friend of mine and suggested that it was a very fine and able piece of work, and if he could rush it before the end of the war he might do something with it, and he wrote back and said it looked as though the war would end, and all the publishers proceeded on the theory that it would end and were afraid to take it up. They would not buy anything about war. It so happens that a publisher buys that manuscript for about $300, all of the American rights, and takes the chance of translating it and publishing it, and for nearly two years it was the best seller. The last time I heard from it, it had sold 200,000. It made an enormous success in motion pictures and it caused the earlier work of this author to be dug up and published with enormous profit to him. All of that happens from a most unpromising piece of copy.
Mr. Bloom. Do you agree with the broadcasters, that by broadcasting something they can make almost anything profitable ?
Mr. Irwin. Well, I would not entirely agree with that, but I think it helps a great deal. I do not think advertising—and we will put it down as advertising—can make anything go that is essentially unpopular; but if there is an element of popularity in it, it helps greatly, and a great many things that have real elements of popularity die simply because they do not get enough of that kind of circulation.
I am only saying to you that the same things might happen at any time to an American book if we had a chance to get into those countries, but we do not. We have shown recently that in England at least, and to a certain extent in France, in spite of the barriers of copyright, that American plays can succeed abroad. In fact, I am told that in the theatrical districts of London they are very much alarmed about the way in which we have been sweeping the boards in England, and to a certain extent we are beginning to get a chance in France. It is in some way rather easier for a play to get over those barriers of copyright than for a book, because, after all, the only creative idea of an author in a play, while it is so important to one in a book, is only part of the success of a play. Acting and stage management and all of those things come in. So this question of originality occupies a smaller space in the problem of a play abroad than a book.
You are going to have the publishers speak to you later, and then I believe some representatives of the drama and of the movingpicture interests, and I would like to have them tell you some of the ridiculous trouble and expense and diplomacy they have had to go through in order to get things in which millions of dollars sometimes
were invested, copyrighted in Europe -- American productions. I would like to have them describe to you the artificial barriers that they have to meet.
There is another consideration there, too, that weighs pretty strongly with me because it touches a subject in which I am somewhat expert. In the course of the late war I was in charge for a time of our American-foreign propaganda, organizing it and administering it, and became a little bit of an expert on international propaganda. We realize, and all nations realize, that the most effective kind of propaganda, the most effective kind of advertising for a nation was not wild vituperation of the enemy and descriptions of the right of your side. That was not what brought home the bacon. It was making the people you are after acquainted with the people you are trying to propagand as human beings.
I remember sitting here in Washington one day during the latter stages of the war, with a number of allied propagandists, talking over our trade, and we tried to estimate what had had the greatest influence as a piece of propaganda in the United States at that time, and you may be astonished to know what we decided it was. We decided it was Mr. Wells's novel “Mr. Brittling Sees it Through." In that novel Mr. Wells had portrayed the average Englishman. Mr. Wells did not waste any time talking about the allied cause or the British cause, or in roasting the Germans. The only German he has in the book is rather a fine, likable human being, but he made us acquainted with a decent sort of an Englishman who was in a bad fix, and we agreed that that did more good than anything that was put out in this country during the war. Of course, that was not propaganda. In the same way anyone who has had considerable experience in the subjects of Europe know how much we are misunderstood and misinterpreted abroad.
Mr. WEFALD. That propaganda, then, was all based on fiction, wasn't it?
Mr. Irwin. That particular propaganda was fiction. I am speaking of Mr. Wells, but understand me, I do not call that dishonest fiction. He wrote it as a piece of fiction, only in the creation of that book he did make you see an Englishman.
Mr. WEFALD. I just wanted to bring out the fact that it was based on fiction.
Mr. IRWIN. In one sense.
Mr. Irwin. But perhaps not in the sense you mean. Well, at any rate, there are the most ridiculous misunderstandings of the United State in Europe. We know something of Europe in this country. We do not misunderstand it, even the most ignorant of us. The misunderstandings of us in Europe are first humorous, funny, and then they are irritating. I won't stop to tell you of the ridiculous things I have known to happen except this: It comes from a friend who has recently returned from a trip through out-of-the-way portions of France and Italy. He says that since the Rhinelander case the impression has become general that all of the Americans of the upper, aristocratic class marry negro women, and that is no more absurd than things you commonly hear about America. That story is corrected and a true picture of America is made, and a way is
made for our commerce, if you want to put it that way, certainly for our diplomacy, and certainly to prevent unnecessary misunderstandings by these people, by presenting the picture of America as it is, and we can not do it now, because we simply can not with any ease or security copyright an American book in most of the nations of Europe.
As I have said, the thing is extremely simple. This law paves the way. It is not necessary under this law, of course, that we enter the International Copyright Union, but we have the way paved. There would not be the slightest trouble in going over to Berne and entering that union. It is all written and we are only asking you in this consideration of the law to remove a barrier that is keeping us from Europe while at the same time Europe can come over here.
In concluding this part of the subject I want to end as I began, to say that we are only asking you to do for us what the law has done from time immemorial for the man who produces a material thing, to give him a natural and common right to the thing he has produced without a lot of unnecessary trimmings and supposed safeguards that are only, when analyzed, the archaic remains of ideas that prevailed some 300 years ago.
Mr. Bloom. You approve of everything Major Putnam has said with reference to this bill, do you not?
Mr. Irwin. With most of the things; yes. I think any point where I would differ with Major Putnam would be a very minor point and on a point perhaps about which I have not made up my mind.
Mr. Bloom. The authors or writers and the publishers are in accord with reference to the bill? That is what I want to get at.
Mr. Irwin. I beg your pardon?
Mr. Bloom. I say that the authors or writers and the publishers are in accord with reference to this Vestal bill?
Mr. Irwin. Yes; we are. We are in the main in 100 per cent accord.
I wish to say parenthetically that this is perhaps the first time that has ever occurred in the history of the world, too, because we have both been considered as enemies. We have a very fine class of men to deal with in the American publishers. It would have been chaos long ago if that was not so, and that is almost a unique situation for publishers and authors to come hand in hand and ask for a change in the law, and I think that is something that ought to cause you to give this bill careful consideration.
Mr. OSBORNE. Mr. Chairman, on another very important phase of this bill there is a very well known author, Mr. Leroy Scott, a member of our council, whom we desire to have heard on that particular phase.
STATEMENT OF LEROY SCOTT, REPRESENTING THE AUTHORS'
Mr. Scott. Mr. Chairman and gentlemen of the committee, I wish to speak very briefly upon a phase of the matter that has nothing to do with the theory, or little to do with the theory, of our proposed law, but with the practicalities that this law seeks to bring into effect.
I should say first of all that at the present time copyright is considered as indivisible property. My purpose is to try to bring out to you that copyright must be regarded as a divisible property. Our present copyright act was formulated at a time when there was almost only one form of property in writing material; that is, the book. Since that time there have developed in the same material numerous other rights. We have had the tremendous development of the magazine rights, we have had the tremendous development of the motion-picture rights, we have had the development of what is known as the syndicate rights. There is also the right of the author and the right of the man who wishes to produce that material, and there are the theatrical rights. I could go on almost indefinitely and point out to you certain new rights that have developed since our copyright law was formulated, rights which are not properly protected either for the sake of the author or for the sake of the person who wishes to produce his material.
We are doing business—I am trying to talk now about the concrete practicalities of this we have been compelled to do business under what we at least consider this obsolete law. The result is that there have grown up-I wish to say that although I am speaking as a member of the Authors League, I must speak also somewhat in the interest and certainly in behalf of the rights of the other people that I have mentioned, the purchasers of these various rights. The big point that we wish to make is that we desire to have our own right established so that we can guarantee, when we sell that right to a motion picture man, to the publisher, to the magazine, that we are guaranteeing a perfectly legal right. At the present time and under the present law that is not true. Chaos does reign throughout because we do not have the proper legislation.
Our business procedure has been something of this sort: The author has first of all sold his magazine rights to a magazine, and perhaps that material has been copyrighted properly by that magazine and perhaps not properly copyrighted, but that first copyright-I believe I am correct in this is the only legal copyright that is ever in existence, that ever does exist under the proper law.
We, the authors, then sell that same material to the big book interests, or some member of the book trade, and the publisher in what almost really amounts-honestly we have been working on what amounts—to a gentleman's agreement; all of us have. The publisher assumes a certain amount of risk when he publishes a book.
Mr. Bloom. That is, you are referring now to the devisible copyright?
Mr. Scort. Yes. I am referring to these different rights which have grown up from what was one right which existed when there was only a book.
Mr. Bloom. Well, you sell a right to-day after the original copy. right has been taken out, and if you sell another right to some one else, that is merely on a gentlemen's agreement, practically, because the fellow that buys it, if he wants to sue or protect his right, he must return again to the owner of the original copyright, so as to sue in that name. Isn't that a fact?
Mr. SCOTT. That is one of the points, Mr. Bloom.
Mr. Scott. That is one of the points, that suit can only be brought in the name of the holder of the original copyright.
Mr. Bloom. I wanted you to bring that point out.
Mr. SCOTT. And if I happen to sell I am talking to you about something that I know.
Mr. BLOOM. Yes; I know.
Mr. SCOTT. This having been my business for a great number of years. If I sell, for example, the rights to motion picture and the copyright is in my name, and I happen to want to take a trip to South America or some other pleasant place and am entirely inaccessible, and some suit comes up, that company may have spent a million dollars or more in producing that play, and some suit comes up in which they have got to defend themselves, they can only bring the suit in my name, and I not being there, they are up against it.
To go back to my little outline of procedure, as is done with the motion-picture people, the same thing almost amounting to a gentlemen's agreement, it is really a trade custom; if that same material has syndicate value, and remember the syndicate represents a tremendous business interest-if that material has syndicate value, that is second publication in the newspapers, our guarantee is almost of the same kind; that is, it is based upon the uncertainty. If it has theatrical value, again the thing is based upon uncertainty.
Now, living under those conditions, there have grown up, as I have told you, the trade customs. What this Vestal bill tries to do in very large part is to embody or rather to replace the outworn procedure of our old copyright legislation, and to embody here the trade customs that have developed at the present time and to protect the author in such rights as he may have and to protect the publisher in such right as he may secure from the author, and enable the publisher to sue if he is under the necessity of suing, to protect the motion-picture man and his vast industry, to protect the theatrical people as they may be involved—in brief, what we ask you to do is to enable us to secure for ourselves clear title to our own rights and in turn to convey a clear and honest and honorable title in those rights to such people as may be interested in the purchase and exploitation of those rights.
I thank you, gentlemen.
Mr. Bloom. In reference to this divisible copyright, you are not asking any greater right than the law gives you now; the only thing that you are asking for in a divisible copyright is for you to transact your business in an orderly and more businesslike way. Isn't that so?
Mr. Scott. What we are asking for is to make legal, almost to guarantee—would you say, Mr. Osborn, to guarantee the legality? I mean, my point is to guarantee the legality of these trade practices which are now invoked.
Mr. Bloom. It is no greater right than what the law gives you now, except the fact that you can cut it up into lots?
Mr. Scott. I am not so certain to the law. I am not speaking as a lawyer, and I do not pretend to be versed upon the fine points of the law. But I have had some 20 years of business experience.
Mr. BLOOM. You do not mean to say that I am speaking in legal terms, because I am not a lawyer, either.
Mr. Scott. I am merely trying to express this to you in terms of daily experience.