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Smith Company v. Apollo Company, rendered by the Supreme Court of the United States February 24, 1908, it is intimated that the failure of Congress to act with relation to new conditions or an existing state of affairs is to be viewed as a denial of copyright protection in that connection.
Your petitioner shows that there are persons in the United States whose sole occupation is, in each instance of a successful play, to procure, by medium of stenographic notes taken during a performance or in other surreptitious manner, a copy of the lines of a play which is supplied to any person seeking to pirate the play or reproduce same through the medium of so-called “talking pictures.?
Your petitioner further shows that there is now being exploited in America a foreigndevised machine by which plays are mechanically reproduced through “talking pictures” and without the permission of the authors at so-called picture theaters, such reproduction resulting in the utter destruction of the play so reproduced as a thing of dramatic value.
Your petitioner earnestly represents that the author is entitled to full protection in his works and that without full protection in the matter of unpublished dramas a vast investment in the United States will be jeopardized if not destroyed.
Your petitioner respectfully shows that there are in America over $200,000,000 now invested in theatrical enterprises dependent upon adequate copyright protection; there are more than 100,000 persons directly dependent upon these enterprises for their means of livelihood; that the investments thereunder reach from the Atlantic to the Pacific and from the Great Lakes to the Gulf; that there is annually paid in salaries by these enterprises about $5,000,000; that there is annually paid by them to railroads approximately $2,000,000; that there is annually paid to newspapers and in printing and advertising in excess of $3,000,000; that there is annually paid to costumers, bootmakers, scene builders, and others for the equipment of productions, approximately $10,000,000; that more than $1,000,000 per annum is paid for trucking and hauling properties and baggage; that sums footing into the millions are paid each year to the authors, and that other large amounts are directly or indiretcly paid to hotels, shops, and stores and other interests throughout the country. Petitioner hereto attaches communications from individuals at interest showing in detail as to the investments in theaters and theatrical enterprises directly concerned in the full protection by copyright of the dramatic author.
Your petitioner shows that by reason of the fact that dramas are unpublished no copy thereof can be secured except surreptitiously, and by a person seeking to pirate or vend same.
Your petitioner further shows that the mere right to proceed against the reproducingplay pirates, whether mechanical or by a company of actors, does not afford full protection. In the case of a company of actors the performances are usually given at points remote from the location or headquarters of the dramatic author or producer, and by irresponsible persons, who jump their companies nightly from town to town. if mechanically reproduced, although a film may be destroyed, the machine is transferred to a new individual or removed to another town and a new film obtained. Peti. tioner seeks to prevent the unauthorized making of films or vending copies of plays.
Petitioner respectfully requests that the following provisions as to dramatic work be in effect embodied in the copyright law of the land.
That the copyright secured shall include the exclusive right to publicly perform or in any manner represent in whole or in part the copyrighted work; to make any transcription or other record whatsoever thereof or from which it may be reproduced, performed, or represented, if it be a dramatic work.”'
That the penalty shall apply to any person who "shall for profit transcribe or procure the transcribing in whole or in part of any work not printed or reproduced for sale by the author or owner thereof or who shall vend any copy, in whole or in part, any work not printed or reproduced for sale by the author or owner thereof, or who shall willfully and for profit infringe, etc.”'
That by reason of the fact it is impossible to ascertain by what medium or what man. per the person vending an unauthorized copy of a play comes into its possession, the burden of proof be put upon the party vending the unauthorized version of a play, and the penalty clause be followed by “the burden of proof on any charge of infringement under this act shall be upon the party so charged to show that such infringement was not willful and with knowledge."
As the dramatic value of a play is but short lived, it is essential that any legal action in connection therewith be speedily concluded, in order that such may not be wholly destroyed.
Your petitioner therefore asks that the right of immediate appeal be granted from any order granting or refusing a temporary injunction.
Your petitioner further prays that every other form and means of protection be granted to the author in the protection of his ideas, as is now granted to the inventor for the protection of his inventions. Respectfully submitted.
THE NATIONAL ASSOCIATION OF THEATRICAL PRODUCING MANAGERS,
Klaw & ERLANGER,
New York, March 23, 1908.
1410 Times Building, City. Dear Sır: In reply to your inquiry of even date will say that the number of companies booking through our office is approximately 700, and they carry from 10 to 250 members each, approximately in all about 30,000 persons. There are about 400 theaters booking through this office, the value of the total investment approximating considerably in excess of $100,000,000. In the conduct of these theaters the services of about 25,000 persons are required.
I herewith furnish you with the following tabulations: Values of theaters, over...
$100, 000, 000 Average annual salaries of employees and performers..
$1,750,000 Average initial investment in the production of 700 plays.
$300,000 Average number of persons employed in companies and theaters...
60,000 I can not give you accurate approximate of total railroad fares, but would say that same would amount to more than $1,000,000 per annum. The advertising, newspapers, printing, posting, and otherwise would be more than double this sum, and the drayage and transfer charges would foot up about a quarter of a million dollars. Very truly, yours,
A. L. ERLANGER.
Stair & HAVLIN (INCORPORATED),
New York, N. Y., March 24, 1908. Mr. Hollis E. COOLEY, Secretary National Association Theatrical Producing Managers,
New York City. DEAR Sır: Referring to your request as to the number of companies booked through our office, would say that same is easily in excess of 500 organizations of from 10 to 75 members each, making a total of at least 15,000 persons. The number of theaters booked through our office is in excess of 250, total investment therein reaching easily the sum of $40,000,000. The number of employees easily average 30 to each place of amusement, or in round numbers 12,000 persons. You can easily tabulate the above to suit your requirements. Total amount of moneys spent for railroad fares hy abovementioned traveling companies, newspaper advertising, printing, and posting of display matter and pictures, photographs, scenic equipment, transfer charges in the various towns in which the companies play, and the salaries, I should say easily amount to $2,500,000 more. Yours, truly,
Stair & HAVLIN (INCORPORATED).
JULIUS Cann's AFFILIATED THEATERS,
EMPIRE THEATER BUILDING,
New York City, March 23, 1908. Mr. Hollis E. COOLEY, Secretarg National Association of Producing Managers,
Times Building, City. DEAR Sır: In reply to your inquiry of March 23, I beg to say that the theaters which I own, lease, control, or book attractions for at the present writing number 247, and the approximate value of the real estate represented by these 247 theaters
would hardly be covered by a valuation of $18,525,000. These 247 theaters employ, approximately, independent of those employed giving the stage performance, 12,350 employees.
The proper advertising of the various attractions playing in these theaters, which is principally newspaper advertising, will approximate $2,475,000 annually.
In this connection I wish to call your attention to the fact that this valuation of $18,525,000 is more than conservative. At the same time this entire investment, being in theater property, would be almost valueless for any other purpose, for you know theaters can not be converted into warehouses or stores, the same as other real estate property. They can be used as theaters only, and when of no value as a theater they are not worth ten cents on the dollar. Yours, very truly,
COLUMBIA AMUSEMENT COMPANY (INCORPORATED),
New York, N. Y., March 24, 1908. Mr. Hollis E. COOLEY,
Times Building, New York City. DEAR Mr. COOLEY: In compliance with your request, I herewith inclose a comprehensive statement of amount of moneys invested in theater properties through the United States and Canada, the aggregate cost of our productions, amount paid for salaries, and other important incidentals in connection with our various enterprises, to wit: Valuation of 34 theaters.
$9,000,000 Number of persons employed
2, 620 Cost of productions yearly.
$150,000 Salaries per year.
$2, 448,000 Railroad fares.
$150,000 Newspaper advertising..
$165, 000 Transfer bills.....
$75,000 Yours, very truly,
COLUMBIA AMUSEMENT Co.,
EMPIRE CIRCUIT ATTRACTIONS,
New York, March 25, 1908. Mr. Hollis E. COOLEY, New York, N. Y.
Dear Sir: As requested by you, I am herewith handing you a statement of the gross investment in theatrical properties in connection with our enterprises, together with the tabulated statement of annual expenditures and persons employed. The statement involves the value of the theaters both owned and controlled by us, and are as follows: 43 theaters..
$12, 000, 000 Annual salaries, performers and theater employees..
3, 000, 000 Annual cost of productions (over)...
200, 000 Annual railroad fares...
185, 000 Annual printing and advertising..
325, 000 Annual transfer and hauling charges..
90,000 The foregoing statement is, as you understand, not computed to a penny from our books, but is an approximate statement, and is reasonably accurate. If I can furnish you any further information in the premises, please advise me. Yours, sincerely,
CHARLES FROHMAN, EMPIRE THEATER,
New York, March 25, 1908. Mr. Hollis E. COOLEY, Secretary the National Association of Producing Managers,
1410-1411 Times Building, City. DEAR Sır: As requested by you, I am herewith handing you a statement of the gross invest inent in theatrical properties in connection with our enterprises, together with a tabulated statement of annual expenditures and persons employed. The
statement involves the value of the theaters both owned and controlled by us, and are as follows: Theater...
$6,000,000 Annual salaries, performers and theater employees.
3,750,000 Annual cost of productions (over).
400, 000 Annual railroad fares...
750,000 Annual printing and advertising.
500,000 Annual transfer and hauling charges..
75,000 The foregoing statement is, as you understand, not computed to a penny from our books, but is an approximate statement, and is reasonably accurate. If I can furnish you with any further information in the premises, please advise me. Yours, sincerely,
LITT & DINGWALL, BROADWAY THEATER,
New York, March 23, 1908. Hollis E. COOLEY, Esq., Secretary National Association of Theatrical Producing Managers,
1410 Times Building, City. DEAR SI We ha in ve in theaters which we own outright in Chicago, St. Paul, and Minneapolis about $1,800,000. We operate under leases in New York, Milwaukee, and Minneapolis other theaters valued at $1,600,000. We expend approximately in salaries to employees in these different theaters between $7,000 and $8.000 weekly. In theatrical companies en tour our salary list aggregates $200,000 annually.
Weexpend for printing, railroad fares, etc., approximately about $100,000 per annum, and for advertising in the newspapers in the different cities of the country, for our traveling organizations and for our theaters, about $125,000. We employ in these theaters and traveling companies upward of 1,000 people.
Having built up this business to its present proportions by many years of close application, we think we are entitled to thorough and complete protection in the shape of an adequate copyright bill. Yours, truly,
LITT & DINGWALL.
Sam S. & LEE SHUBERT (INCORPORATED),
New York, March 24, 1908.
New York City. DEAR Sır: In reply to your inquiry of the 23d instant will say it is diflicult to give the exact amount involved under your questions. We furnish you the following tabulations of value which we consider conservative approximates:
All theaters owned and controlled, $20,000,000; annual investments and expenditures in production, $525,000; the number of persons employed in productions and theaters, 4,000.
We can give you a better idea of the average salaries paid by quoting the weekly salaries of some of our companies, for example:
The Julia Marlowe Company will approximate about $5,300 per week; Happyland about $3,600 per week; Lew Fields about $4,800, and the Gay White Way about $3,857 per week.
As to the royalties paid authors, the usual payments are $500 to $1,000; as, for example, in the Marlowe Company the average weekly royalty is $500 and the Happyland royalties is about the same. In the Lew Fields royalties same reaches $1,000 per weck, and in the Gay White Way the royalties approximate $800 weekly.
The weekly railroading ranges from $500 to $1,000, and the weekly advertising from $300 to $500 per week per company.
The average payment to theater owners from these companies will approximate $3,000 per week. The average cartage and transfer about $300 per week. The original cost of these productions ranges from $18,000 for Happyland Company, $22,000 for the Lew. Fields Company, $26,000 for Gay White Way Company, to $100,000 for the Julia Marlowe Company, which requires four cars to carry the equipment for the productions. Trusting this furnishes you the information you desire, Yours, very truly,
Sam S. & LEE SHUBERT (INCORPORATED), and
Chas. E. BLANEY AMUSEMENT COMPANY (INCORPORATED),
New York City, March 24, 1908. Mr. Hollis COOLEY,
Secretary T. A. 0. P. M. O. A., New York City. My Dear Mr. COOLEY: Below I give you an idea of the magnitude of the Chas. E. Blaney Amusement Company, which controls fourteen traveling organizations and eight theaters: The value of ground and theaters..
$2,050,000 Number of people employed on the road and in the theaters.
800 Salaries, approximately, season 1906-7..
$500,000 Amount paid to railroad companies, 1906-7
$83, 000 Amount paid to lithograph companies, 1906–7.
$92, 000 Amount paid transfer companies, 1906-7.
$21, 000 Amount paid to newspapers, 1906–7..
$34,000 Cost of productions, 1906–7.
$112,000 Yours, truly,
Chas. E. BLANEY AMUSEMENT Co.,
Hurtig & SEAMON (INCORPORATED),
New York, March 24, 1908.
1410 Times Building, City: Dear Sir: In reply to your inquiry of even date, will say that we own and control ten theaters of the approximate value of $2,500,000, and that in the operation of these theaters we require the services of something over 300 persons.
We also own ten traveling attractions, employing in the aggregate about 400 people, or a total of 700 or more people dependent upon our enterprises. Our salaries and expenditures in the way of railroad fares, newspapers, other advertising, royalites, transfer charges, and the like, approximate about the same of the other attractions the same character as our own, and, all in all, considerably exceed $1,000,000 per year. If there is any other information we can afford you, kindly inform us. Yours, very truly
HURTIG & SEAMON (INCORPORATED),
Klaw & ERLANGER, NEW AMSTERDAM THEATER BUILDING,
FORTY-SECOND STREET, NEAR BROADWAY,
New York, March 23, 1908. Mr. Hollis E. COOLEY, Secretary National Association of Theatrical Producing Managers,
1410 Times Building, City. DEAR SIR: In reply to your favor of even date I quote you the following figures of receipts in seven years on six successful plays: Paid by the producing manager to theater owners as their share of receipts...
$2, 968, 964. 15 Salaries, over.
3, 586, 454,93 Railroads, for transportation..
388, 545. 10 Printing and adverusing..
333, 806. 23 Drayage and transier..
90, 713. 89 Productions, scenery, and costumes.
1,051, 935.89 Authors' royalties....
021, 964.42 Gross receipts of these six companies in seven years..... 10, 806, 406.32 You must bear in mind, however, that not all productions are successful. Often a producer puts out a play costing from $10,000 to $100,000, only to find that it does not meet with public lavor. In such a case the producer loses his investment and