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The American Federation of Musicians, which represent well-nigh all the instrumental performers of the United States, recognizes that unless the American composer is suitably protected against exploitation of his compositions the opportunity is destroyed that American talent will eventually create an American school of music, so that for this agent of culture we will not forever remain dependent upon Europe.
We musicians feel that an injustice is perpetrated upon American composers who, after popularizing their works, must stand by defenseless and see others reap the benefits. In our observations we find that phonograph companies, talking machines, etc., do not popularize works or compositions, but on the contrary do only seize upon and utilize such as have already become popular, and therefore they reap the benefits of the efforts of others.
The composer after creating a work must associate himself with a publisher. He, together with his publisher, often spends thousands of dollars to bring his work before the public. This is done with the assistance of the musicians of the country; it is copied, and the composer's thoughts are reproduced by phonographs and talking machines. This is eminently unfair.
Hoping that the American composers will be entirely successful in their just demands to have the results of their work protected and that henceforth they will also be beneficiaries of the broad American doctrine of a square deal for all, we remain, Very truly, yours,
Joe N. WEPER, President A. F. of Jlusicians.
Secretary. Representing 60,000 musicians.
The committee has been told by the opponents of this bill that they advertise our works, and make them popular. I would like to read them a few selections from that advertising. Here is some advertising by the Columbia Phonograph Company, which is sent to their dealers. It reads:
A SQUARE DEAL FOR THE DEALER.
HERE'S WHERE WE PLUG THE ONE BIG LEAK-NO MORE MONTHLY LISTS TO KEEP
YOU STEWING AND GUESSING AND OVERSTOCKING--SUPPLEMENTS WILL BE ISSUED QUARTERLY AND ONLY THE HITS" AND BIG SELLERS BETWEEN TIMES.
There's only one thing that ails the talking machine business this minuterecord indigestion.
Every dealer knows what it is to have a new lot of 50 records shoved down his throat once every month regardless of the stock he may have in his racks.
And every dealer knows it has been getting worse. A while ago you could count on selling records right through the month, but of late the tendency has been for the record buyers to buy while the list is less than two weeks old and stay away the other two weeks.
Where would this end if some one didn't get out the ginger bottle?
If talking machines and records hadn't come to be almost more of an everyday necessity than a luxury, and if the talking machine business hadn't been solid and sound, this overstuffing once a month would have made an operation necessary long ago.
Here you are adding to your dead stock every month-and still unable to carry every last one of the newly announced records that somebody may come in and call for.
We can tell you where it is going to end, as far as we are concerned-it's going to end right here and now.
As manufacturers, we could keep this monthly list business going indefinitely ; and likewise we are probably best able and most willing to assume all the responsibility of putting an end to it. We know that, just as we have been the pioneers in this business for twenty years, it is up to us to be the pioneers now. The burden of 40 or 50 new records every month, with the consequent load of overstocking and deadstocking, is a burden that the dealer knows is getting more unbearable erery month, and we propose to take that burden off our dealers' shoulders at once, whether anybody else in the trade follows us or not.
The dealers' prosperity is ours-of course--and the dealer would not prosper much longer if this one big hole in his cash drawer couldn't be stoppered. We know we are right. We believe the jobbers and dealers know it, too. So here's what we are going to do : (1) Cut out the monthly lists; (2) issue a condensed list every three months-March 1, June 1, September 1, and December 1; (3) issue complete catalogues twice a year; (4) announce new records of the big hits as fast as they appear-and you can place them on sale as soon as you like, without looking at the date on the calendar.
The records in the quarterly list will include those big hits and also whatever new records have been made during the quarter; but every record in that quarterly list will be a sure seller. No record will ever get by our record committee unless that one point is settled for certain.
This way you'll get the attention of record buyers every time a record is announced-and what's more you will have the records ready for him.
After this has happened once or twice and the record buyer realizes that there is no reason why he should do all his record buying around the 26th of the month, you will have him coming into the store every time he wants something new.
And “something new” only means something new to him. You have a regular list of hundreds of records which are new to him and which are 100 per cent better in every way than many of those in the monthly lists—and it's going to be the easiest thing in the world to sell him out of your regular listand satisfy him better than you ever did before.
You will have him coming in whenever he has money to spend-that will be the outcome of it.
And that's the natural, legitimate, and profitable way to sell records.
If you should find yourself tempted to express your opinion, or if any questions occur to you, your letter will be welcome at this office.
COLUMBIA PHONOGRAPH COMPANY, GEN'L.
Tribune Building, New York. Columbia disc and cylinder records fit any talking machine and make it sound almost as good as the Columbia graphophone.
I have here also a pamphlet issued by the Edison Phonograph Company dated March, 1898. It is a very hard pamphlet to get, because they withdrew it after they saw the effect of it. It is from the department under the heading, “ Questions and Answers” in The New Phonogram, and is as follows:
N. W. B., St. Joseph, Mich.-Please tell if anyone having a song composed could have it recorded on a record after it has been published in sheet music form? Do you publish your own sheet music or must one send it elsewhere first?-(We do not print or publish sheet music of any kind and can give you no information about publishing a song. It is very doubtful if we would be able to use your song even if published. For the most part we make records only of such selections as are widely known or popular because of the efforts of their publishers, or because they are sung upon the stage. Manufacturing phonograph records for the public is necessarily a selfish proposition, and in selecting subjects for records we aim to get those for which there will probably be a large sale. Your song might be equal to or better than any of the socalled popular songs or ballads, and still not be available for record making.)
Here is another one from the Columbia Phonograph Company advertising “ Star records” in The Talking Machine World under date of January 15, 1908 :
Star records are the live line of disk records.
This means no “dead ones,” a constantly moving stock, a quick turnovermore business with less capital in the Star line than with any other.
Bulletins of new selections are issued monthly-popular things while they are popular.
Star records are unexcelled in pure brilliancy of tone, in freedom from scratch, and in durability.
Made in 10-inch and 12-inch sizes.
Mr. Chairman, we are in absolutely the same position as the dramatists, and we can only indorse absolutely all that Mr. Brady has said and all that Mr. Johnson has said. These people are taking our works and appropriating them without compensation.
The CHAIRMAN. Mr. Herbert, would you be satisfied, as a musical composer, if there was a provision made for paying you a royalty by the manufacturers of mechanical reproducing devices?
Representative CURRIER. A percentage royalty, which would work automatically?
The CHAIRMAN. Together with a further provision that any manufacturer of any mechanical reproducing device, upon payment to you of a stipulated royalty could make a record or disk or cylinder of any musical composition that you might compose?
Representative LEAKE. He would want to know what would be the stipulated royalty.
Representative CURRIER. That is a matter of detail.
Mr. HERBERT. In the first place, all of my works do not command the same price, and I do not think it would be fair to me to have the same price for all the work I have done.
Representative CURRIER. It would be a percentage royalty, so that if a great number of them were sold you would get a royalty in proportion to the sale.
The CHAIRMAN. If a record sold for $5, there might be a percentage of that paid as royalty, and if it sold for 25 cents, there might be a percentage of it paid?
Mr. HERBERT. But I think I ought to have the supervision over the thing, with reference to the artistic side of it. That is the very thing I have been speaking about. As a matter of fact, they simply do not perform on their machines at all what they claim it to be. I deny that the compositions they put on their machines are my works.
Representative LEGARE. If they are not your works, how can we force them to pay you a royalty?
Mr. HERBERT. Because they would be my works if I had the supervision of the manufacturing of them, which is denied me to-day.
Representative CURRIER. Mr. F. M. Prescott, in answer to a statement which I made that I understood the composers were opposed to a compulsory royalty, says, in a pamphlet which every Member of Congress has received, that he does not agree with me at all that the composers are opposed to a royalty or compulsory license, and says:
I do know that such well-known and prominent composers as Philip Sousa and Victor Herbert denounce in the strongest terms your attitude on the copyright bill, and favor in the warmest manner a copyright law which will provide for everyone using their compositions, no matter whether transcribed in the well-known form of sheet music or by mechanical music rolls or phonographic rolls or disks or any other art or manner to be devised in the future.
Is Mr. Prescott correct in that statement ?
Mr. HERBERT. I think I have met Mr. Prescott but once in my life. That is his statement, and I am not responsible for what other people say.
Representative CURRIER. I assume that he did not make that statement without talking with you about it. Did you say that to Mr. Prescott?
Mr. HERBERT. I never heard that before in my life.
Representative CURRIER. Did you ever make a statement that was anything like that to Mr. Prescott?
Mr. HERBERT. I could never have made a statement in so few words about so important a question.
Representative CURRIER. Did you ever make a statement to him in which you said you were in favor of a compulsory license?
Mr. HERBERT. I have been told by eminent lawyers that it is impossible, because it would be unconstitutional.
Representative CURRIER. Then this is not your position ?
The CHAIRMAN. You remember my asking him at the last hearings whether he was in favor of a royalty or not?
Mr. HERBERT. Yes; it was mentioned.
The CHAIRMAN. This is not a new question, because it has been considered here for nearly two years. Mr. Sousa then said equivocally, however, that he was in favor of it, and afterwards said that he was not in favor of a royalty.
Representative CURRIER. We would like your position well defined about this matter.
Mr. HERBERT. I simply want the inanufacturer of mechanical instruments to be put in the same position, individually, toward me as the publisher is to-day.
Representative CURRIER. Then we are to understand from you that it is not compensation for your composition that you are asking for, but the exclusive control of your compositions?
Mr. HERBERT. The artistic control.
Representative CURRIER. And the exclusive control. It is not compensation that you are looking for, because if that is what you are looking for, you could get that under the percentage royalty.
Mr. HERBERT. I am looking for that, too.
Representative CURRIER. You get absolute compensation under that provision.
Representative LEAKE. No; he does not. He only gets a compensation which some individual indicates is a fair compensation. He wants the right to deal with the phonograph company himself, and determine what that compensation shall be.
Representative CURRIER. Under the suggested provision of a percentage compensation as royalty, he gets a compensation which works automatically.
Representative LEAKE. Is it not true that in some cases he ought to have a larger compensation than in others?
Representative CURRIER. And he gets it. If a phonograph company was to sell its composition for less than it was worth, there would be an extraordinary demand for it and the percentage royalty would give him his compensation.
Representative LEAKE. Yes; but they can take his best composition and sell it for the cheapest price, in order to more widely disseminate it, and he might object to it.
Representative Currier. But he would get his compensation fixed by Congress, not by an individual.
Representative LEAKE. I do not believe in Congress fixing rates at which individuals should contract upon their own property.
The CHAIRMAN. In answer to Mr. Leake, I want to say that the Supreme Court of the United States says it is not an infringement of a copyright. Mr. Herbert is here asking this committee now to give him something the law does not now grant him.
Representative CURRIER. And more than that he is asking us to create for him an absolutely new property right, which the Supreme Court says has absolutely no existence.
Representative LEGARE. Something which they have never had before, and which will appear very drastic to the people.
Mr. HERBERT. How is it drastic, when they steal my works?
Representative CURRIER. They can not steal something which the Supreme Court says is not property. The members of this committee, however, are exceedingly anxious to give you people some relief.
Mr. HERBERT. I hope they will.
Representative CURRIER. If you gentlemen will approach this subject like fair and reasonable men, ready to secure what you say you want, and that is compensation, in my opinion this matter can be solved.
Mr. HERBERT. You have never made us any offer or any promise, nor have you, Senator Smoot.
Representative CURRIER. At the first hearings I began to ask questions along this line, with regard to a compulsory license.
Mr. HERBERT. But you would not listen to any argument by any. body else. You had your ideas fixed, just as we have our own ideas. I am not coming here on my knees; but I am merely asking for my rights as an American citizen. Representative CURRIER. You had all the time you asked for.
The CHAIRMAN. If you were given the absolute right which you are now asking, what would prevent you from saying to the Eolian Company, or to the Victor Talking Machine Company, that you would only allow them to produce your compositions? Is there anything to prevent a monopoly being formed, if you are given that right?
Mr. HERBERT. I do not see any monopoly there at all. Competition is the soul of business.
Representative LEAKE. There is a monopoly; but it is the same kind of a monopoly that the man who writes a book gives to his publisher.
Representative CURRIER. But these gentlemen have a double right, which the publisher of a book does not have.
Representative LEAKE. That is only because it is used for two purposes. If the book could be used for another purpose, the right would undoubtedly extend in the same way.
The CHAIRMAN. They have the same right now that a book has, so far as publication is concerned.
Representative LEGARE. Do you own any stock in any publishing house?
Mr. HERBERT. No; I don't own a cent.
Representative BARCHFELD. You are coming to Congress and asking for additional legislation to give you a right which the law does not now give you. The Supreme Court has declared that you have no standing in court.
The CILARMAN, Mr. Burkan, you are next in order, and have been allotted forty-five minutes.