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expiration of the twenty-eight years those contributors could revive their copyright under the provision as it has been worded in the Smoot-Currier bill, hundreds of authors or people who were still less interested in the original obligation or agreement than the authorssons or representatives of the authors-would have the right to go to the publishers of the encyclopedia and say, “You must cancel the million dollars that you have invested here unless you will pay to me and to me all through the letters of the alphabet a penalty price for the renewal of the right to publish, or for the right to continue the publication of the articles in question.”'
Representative CURRIER. Why not differentiate between a composite work and the work of a single author?
Mr. PUTNAM. It seems to me more logical, where the copyright has been sold outright. Supposing he would retain not only the exclusive right for the term of the copyright, but a competitive right beyond that term, the publisher has made his great investment.
The CHAIRMAN. When the sale was made outright it was based upon the duration of a copyright at the time the contract was made? Mr. PUTNAM. Yes, sir.
The CHAIRMAN. Now, if we extend the copyright, do you think it proper for him still to claim that extension of time?
Mr. Putnam. I do not. It would have to be a new application. What I point to is that in purchasing the copyright the purchaser knew that he secured under the law the exclusive right only for the term of twenty-eight years, but he knew that thereafter he would have what I call a competing right; that nobody could destroy his plates. Somebody might reprint the book, but he would have still a property which he might utilize. But under the bill, as you have proposed it, there is this difficulty. The investment on his part is not merely the cost of the plates, but the expenditure and the time in making a market for the book for twenty-eight years, and that investment can be canceled by any one contributor unless his contribution should be replaced by that of another in the composite work, which would be a difficult thing to do.
The suggestion made by the publishers and accepted by the authors with respect to the extension of a copyright which has been sold outright was that the two parties should join together. The publisher would doubtless be glad to secure a further exclusive right, just as it is to his interest to secure an exclusive right under his original contract. The authors were satisfied with that. It made a logical distinction between a copyright sold outright and a copyright the ownership of which resided with the author, whereas under the bill as it is worded the value of hundreds of thousand of dollars of property may be canceled by the author. We have taken that risk
Representative CURRIER. You assume that risk when you purchase a copyright for a fixed term?
Mr. PUTNAM. No, sir. We knew that at the end of the term we could go on and use the plates. We knew they could not cancel the use of the plates. But if the author resumes an exclusive control he can say: “You shall not publish any more."
The CHAIRMAN. As a publisher, that cuts very little figure in your calculations with respect to what you shall give the author, in view of the fact that of all the books that have been published in the United States up to the present time you can almost count on your fingers nearly all that have lived longer than twenty-eight years.
Mr. PUTNAM. This proportion, I am glad to say, is increasing, but of course the most important property consideration is in the books I have referred to—composite works.
Representative CURRIER. Mr. Clemens told me that he sold the copyright for Innocents Abroad for a very small sum, and he got very little out of the Innocents Abroad until the twenty-eight-year period expired, and then his contract did not cover the renewal period, and in the fourteen years of the renewal period he was able to get out of it all of the profits.
Mr. PUTNAM. That is perfectly true, and he was entitled to it. But Innocents Abroad is a book out of a million, as the Senator from Utah has well remarked. He would get it under the suggestion I have made.
The CHAIRMAN. He would get it provided the publisher would agree to give it to him.
Mr. PUTNAM. But bear in mind the publisher could not get it unless the author would agree with him.
Representative CURRIER. But the author is in the publisher's hands.
Mr. PUTNAM. No, sir; because the publisher, bear in mind, could not earn a dime off the book unless he could persuade the author to make an agreement with him.
Representative CURRIER. Neither could the author get another cent unless the publisher would consent.
Mr. PUTNAM. No; but is it to be supposed that two ordinary American citizens will stand out and refuse to come to an agreement? That is not the American way of doing business.
Representative CURRIER. I have known people up in New England to do that.
Mr. PUTNAM. You have a stubborn set of neighbors, I am afraid. You are really more strenuous in regard to this provision of the section than the authors themselves are, and it will appear so to-morrow; but I claim, with justice, to speak for them to-day and to say that they want the provision as originally drafted and as retained by Senator Kittredge, which you gentlemen have modified.
I come now to section 27, the question of the minimum penalty. It will be found on page 8 of the comparative pamphlet. A minimum penalty for an infringement of the copyright in the sum of $250 was arrived at in the draft of the bill, which was the result of our long series of discussions.
Representative CURRIER. In the Currier bill that minimum has been restored.
Mr. PUTNAM. There was some discussion as to whether the minimum should be $100 or $250. It was finally fixed at $250, and it is, gentlemen, of essential importance for the protection of the literary interests that there should be some minimum.
I have been called as an expert witness in copyright cases, mainly in cases of infringements of copyrights by newspapers. In the particular case I have in mind, the newspaper took from a copyrighted book and printed in its columns a story without acknowledgment and without any payment until it was haled into court, and the court ordered it to stop printing the story. There were three chapters which the readers of that unfortunate paper never got. But then we claim to claim, as I did as a witness, damages on behalf of the interests
represented. The court declined to admit that the book had been injured or that the author had been injured, or that the publisher, who had a publishing right, had been injured, although the publisher's serial right for himself and the author had been injured, and he directed the jury to bring in a nominal verdict. I point out the fact that these provisions are mainly to be used as deterrents rather than as penalties.
Representative CURRIER. The thing that impressed us is the fact that in the present law there is a minimum and no maximum. We insert a maximum and in the old bill struck out the minimum, and it seems to me the minimum ought to be restored.
Mr. Putnam. I am very glad to find you are in accord with that. There is no reason why there should not be a minimum.
The CHAIRMAN. What section do you refer to? Mr. Putnam. Page 8 of this pamphlet, section 27, subsection b, in which there is the wording: “In no case exceed the sum of $5,000.”
Representative LEAKE. You are speaking of the other bill.
The LIBRARIAN OF CONGRESS. I think all those references are to the Kittredge bill. It is not the same bill.
Mr. Putnam. I am afraid I have confused the gentleman by making references under this heading.
The CHAIRMAN. It is section 28.
The CHAIRMAN. It has been restored in the Smoot and the Currier bills.
Mr. WILLIAM ALLAN LIVINGSTONE (president Print Publishers' Association). It is in two of the bills. It is not in the other two.
Mr. PUTNAM. It is in the Smoot-Currier bill, but not in the Kittredge or Barchfeld bill.
The CHAIRMAN. The next section referred to in your letter to me is section 33—the importation of copies.
Mr. PUTNAM. So far as that section is concerned, it is going to be assailed, and we want to have a few words in closing in regard to it.
I need not detain you further, gentlemen.
STATEMENT OF MR. HARRY P. MAWSON.
The CHAIRMAN. Whom do you represent, Mr. Mawson!
Mr. Chairman and gentlemen, the American Dramatists' Club desires to deal specifically with what is known as play piracy. That is the great evil from which we suffer, and it is a species of piracy that is so peculiarly constituted that it deserves a little description as to its modus operandi.
A play is produced; perhaps produced in any part of the United States. Frequently they try it out in San Francisco or New Orleans, Chicago or Pittsburg, Washington or some other town. But by some mysterious process of reasoning a play only secures its full marketable value when it reaches New York and gets the New York verdict. Now, the significant fact is that a play is never pirated until it does get that verdict in New York. It may go around the country for several months, frequently losing money for the manager, who is waiting for the verdict of New York, consequently earning very little royalty for the author, but just as soon as it reaches New York and is a success then it is stolen.
Now, the process of stealing a play is probably the most ingenious thing in the realm of the appropriation of copyrighted rights. An expert stenographer secretes himself somewhere in the theater and he takes down word for word everything that is spoken in the play. After he has gotten all the words in the play he then appropriates all the business of the play. That bit of business, as we call it, is derived from the motive assigned by the author for that particular action. It is a part of the dramatic composition. He steals that. After he has gotten all that, he takes down the makeup of the actor, everything he wears, the arrangement of the face, the beard or wig if he wears one, the costume. Then he comes down to the scenery; the properties that are used. All of the play is stolen in that way. Now he has to find a market for that, and that market is in Chicago, and there it is sold. That property costs the manager from $10,000 to $25,000 to produce, and that entire play is sold for $5 a copy.
Representative McGavin. According to that statement, we in Chicago take the stolen plays from New York.
Mr. Mawson. You do, sir. I regret to say that the headquarters of play piracy in America is Chicago.
How does he get that stolen manuscript on the market? He does not put out a sign “Play broker,” “Play agent,” as a reputable vendor of manuscripts would do. But he has in front a beer saloon. You enter ostensibly to get a glass of beer. What you go for is to get the play. By knocking on a door or by some other means you obtain access to the manuscript room, and you get a copy for $5.
The CHAIRMAN. I understand you can buy the plays mentioned by writing from Washington.
Mr. Mawson. Yes, sir.
The CHAIRMAN. I understand you can write for any play and it is sent to you for the advertised price.
Mr. Mawson. Yes, sir; and frequently under a false title. It is difficult for the author and the owner of the property to detect the piracy, for the play may go around the country for a number of weeks. The United States is a pretty big place. When it gets into Montana, or Texas, or Maine, it is often months before the piracy is detected, and then frequently only by chance. So all this territory is preempted by the people, taken away from the rightful owner of the property possibly months before he can reach it. We believe that is a very serious injury to our rights, and it makes it very difficult indeed for any copyright act to reach this species of piracy
The CHAIRMAN. Would not a penalty clause imposing imprisonment reach it?
Mr. Mawson. If the courts would enforce it. If they would put one pirate in jail it would be a great object lesson.
Representative McGavin. What character of plays are usually stolen?
Mr. Mawson. Everything. The Lion and the Mouse under the title of the Strong and the Weak; Way Down East is called Just Plain Folks; and various other plays. They adopt a title analogous to the real title, and then by clever presswork and advertising the public are told by indirection that this play coming there to be shown at 10, 20, and 30 cents will be the same as the play that is coming along for which the reputable manager is paying rent and paying a royalty, and is charging from 25 cents to $1 admission.
I wish to say that at the conferences held in New York we did endeavor to get such a clause as Mr. Currier referred to, but the conference would not consider it.
Representative CURRIER. At that conference no Member of Congress was present?
Mr. Mawson. No, sir. Recognizing that fact, we have in some of the State laws a provision that about covers that idea, and particularly in Illinois, where the State legislature adopted two years ago
Representative SULZER. Have you the provision with you?
Representative CURRIER. Mr. Johnson has that. · Mr. Mawson. That, gentlemen, is about the status of play piracy in this country. There are ramifications of it, of course. The point is that a man can go into a theater and steal your play by having a stenographic report made, and that is done after the manager has spent all that money; and, incidentally, if he has spent $10,000 to produce the play it costs him $10,000 more to get it off. A pirate never takes a failure. He takes your success. No one ever heard of such a thing as a failure being pirated. But if you have a success, he will steal it within forty-eight hours of its production.
The CHAIRMAN. You refer now to pirates stealing a play and presenting it by actors.
Mr. MAWSON. Yes, sir.
Mr. Mawson. No, sir. We have not come to that. We, of course, have our views upon that point, and we shall, with the permission of the committee, state them when the proper time comes.
That is all I have to say.
STATEMENT OF MR. LIGON JOHNSON
Representative CURRIER. Mr. Johnson, whom do you represent?
Mr. JOHNSON. I represent the National Association of Theatrical Managers, which embraces practically all the producing managers of America. In order to get before the committee for its use as short a statement as possible, the association has prepared, for the benefit of the committee, a petition requesting specific legislation, and it also files as exhibits certain certificates of individuals as to the actual amount involved under a proper copyright. With your permission I will file it.
The CHAIRMAN. The papers indicated will be put in the record.
referred to are as follows:
New York, March 24, 1908. To the COMMITTEE ON PATENTS,
United States Congress: The National Association of Theatrical Producing Managers respectfully petitions your committee and the Congress of the United States, and shows:
That the dramatic author and producer of dramatic works are inadequately protected under the existing copyright laws by reason of certain unfair methods to which they are now subjected, because of loopholes of escape now afforded unauthorized vendors of plays, and under new conditions not covered by the previous copyright acts.
Your petitioner shows the pending legislation to be, in effect, a revision and codification of outstanding copyright laws and that by the decision in the case of the White