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Mr. BURKAN. No; I do not say that, but the bringing of these actions against any individual by the various companies is sufficient to oppress and drive a man out of business; so that no man to-day would dare to go into this business with knowledge of the fact that if he attempt to invade this field he will be pursued by litigation.
The CHAIRMAN. It is not very expensive, if you have a case in the Patent Office, to carry your patent from the examiner to the examiner in chief and from the examiner in chief to the Commissioner of Patents, and from there to the court of appeals of the District of Columbia.
Mr. BURKAN. It might not be expensive in the Patent Office, but it is mighty expensive when you are brought into a United States court when you must appear before a master and made to summon experts to testify about these matters. The expert, as a rule, has to be paid about a hundred dollars a day, and you will find after six months or so of testimony taking that it is rather expensive.
The CHAIRMAN. That is not the case in the Patent Office?
Representative LEGARE. You say there are only three concerns manufacturing these records?
Mr. BURKAN. Yes.
Representative LEGARE. And you want us to so legislate that there will be only one concern?
Mr. BURKAN. No, sir; I do not.
The CHAIRMAN. You are not arguing this matter on the supposition that the committees are in favor of a monopoly, are you?
Mr. BURKAN. I propose to show that this is the greatest monopoly in this country, and that in dealing with this proposition these people and their methods and their sincerity in the cry of " monopoly should be considered when you come to pass upon this legislation.
The CHAIRMAN. If there is any legislation which we can pass that will prevent a monopoly by the Victor company or any other company, that is what we are going to do.
Mr. BURKAN. Yes; and I am in favor of that.
Representative CURRIER. Do you think we will cure this monopoly by building up another?
Mr. BURKAN. No; I. do not. I am simply going into the good faith of these people in their opposition to this legislation. Let me call your attention again to the last provision of this contract which I read a moment ago, and which provides that neither party to this contract shall copy or reproduce in any manner any records owned or controlled or first produced by the other party, nor will they deal in or handle in any way whatsoever such copies if made by others, and that they will cooperate to secure a discontinuance of such acts on the parts of others, and to secure legislation and make it illegal to copy or counterfeit records, if it shall be found that the present laws do not cover the case.
And so these people, although they abuse us for asking you to make it illegal for anyone to take a composer's composition without compensation, have entered into an agreement to come before Congress and ask it to make it unlawful for any other company who is desirous of doing so from manufacturing records copied from those records controlled by the trust. What is actually copied is not the physical
record, but the composition embodied therein. They tell you that they have the right to copy Victor Herbert's compositions and sell them for profit in the form of phonograph records and to refuse to pay him a royalty for that right, but that it is unlawful for any other manufacturer to copy the very same compositions from those records or place upon them what is contained therein. That shows the fairness of my friends on the other side. It's a case of whose ox is being gored. They tell you that if you pass this legislation you are going to create a monopoly in this industry, because one company will acquire the exclusive reproducing rights from every composer in the country. I desire to acquaint you gentlemen with the fact that but one company sells records known as the Caruso record—that is a record reproducing songs rendered by the famous tenor, Enrico Caruso—and also with the fact that the Victor Talking Machine Company has made an exclusive contract with Mr. Caruso and Madame Melba for the exclusive right to put on their records the compositions rendered or sung by them, and yet we find that the Columbia Phonograph Company and the Edison Company are going along splendidly and thriving. These companies have not shut down or gone out of business because the Victor Talking Machine Company enjoys a monopoly in the manufacture and sale of these popular records.
I propose to show you further that the company known as the Zonophone Company, a subsidiary company of one of the three described by me, sold a record which was prepared by Madame Tetrazzini, the famous singer, which it sold to the public for 75 cents. When Madame Tetrazzini came to New York and created such a tremendous furore, the Victor Talking Machine Company then proceeded to monopolize her services, entered into an exclusive contract with her, and raised the price of records made by her to $3; and yet that company tells you that these composers and publishers, who are simply battling for right and justice and to be compensated for their efforts, are coming here with the idea of creating the greatest monopoly in this country.
The CHAIRMAN. I do not think they stated that they were opposed to monopolies, because not long ago I noticed an advertisement with Mr. Sousa's picture over it, and the advertisement claimed that they had an absolute monopoly of the music and marches composed by Mr. Sousa, so that they advertise that they do have a monopoly.
Representative LEGARE. I understand that Mr. Herbert's band and Mr. Sousa 's band play for these companies.
Mr. BURKAN. You are mistaken about Mr. Herbert's band. I remember an action started in the New York State courts a number of years ago to restrain the Universal Talking Machine Company from selling records which they advertised were played by Victor Herbert's band. Victor Herbert's band has never played for these companies, and yet, for the purpose of creating a demand for their wares, they labeled each record as played by “ Victor Herbert's band.” I applied for the injunction and it was granted. Mr. Pettit opposed me in the application, and he is here now.
Representative LEGARE. Did his band ever play for any talking machine company?
Mr. BURKAN. It did appear that when Mr. Herbert was in Philadelphia with his orchestra a number of years ago, several of his men
asked for permission to go to the headquarters of the Victor Talking Machine Company for the purpose of making a little extra money by playing for records, and that they played several selections, which were labeled as played by Mr. Herbert's orchestra; but Mr. Herbert never got one cent for it.
Mr. PETTIT. We understood that his band was authorized to play there.
Representative LEGARE. He permitted them to do it; and they played selected pieces.
Nr. Burkan. Yes; those men played those pieces because they knew them and knew how to properly interpret them.
Representative LEGARE. What company is this Universal Talking Machine Company?
Mr. BURKAN. That is the Victor Talking Machine Company.
Mr. BURKAN. It is announced in this advertisement of the Tetrazzini record, which reads, “Tetrazzini on the Victor."
Another triumph for the Victor!
The great soprano, who has successes in the operatic history of America, has been added to the Victor's “ exclusive" list of celebrated grand opera singers.
In securing the exclusive services of Mme. Tetrazzini, the Victor company has again demonstrated its foresight and enterprise.
There is already a large demand for Tetrazzini records and the sales will be increased by our extensive advertising.
Every Victor dealer ought to grasp this opportunity immediately. have not ordered Tetrazzini records, do so without delay--and be sure to order in quantities large enough to satisfy the demands that will certainly be made upon you. Write to your distributor for special list of Tetrazzini records. VICTOR TALKING MACHINE COMPANY,
Camden, N. J. BERLINER GRAMOPHONE COMPANY, MONTREAL,
Canadian Distributors. For best results use only Victor needles on Victor records.
So that the moment they acquire the exclusive services of Madame Tetrazzini they increase the price of the records manufactured by her from 75 cents a piece to $3 a piece.
Representative BaRCHFELD. And that was in the interest of the public.
Mr. BURKAN. Yes, sir.
The CHAIRMAN. It might have been done in this way: That her voice, when she came over here, became very popular with the American people, and that popularity might have placed her in a position whereby she could have demanded more from the Victor talking machine to sing into their machine. I rather think that is the fact. It is the same as if the Victor talking machine would pay Mr. Herbert a great deal more for his band to play for it than for a common country band.
Representative BARCHFELD. I just want to call attention to the fact that this was in the interest of the public. The Victor Company get the contract that is absolutely exclusive, and that raises the price from 75 cents to $3, for the benefit of the public.
Mr. BURKAX. I have here an advertisement issued by the Victor company, in which the records of Madame Tetrazzini are advertised as zonophone records, the 9-inch records at 75 cents and the 11-inch records for $1.25, while I have also a pamphlet in which they advertise the same thing for $3 immediately after signing the so-called exclusive contract. I offer these pamphlets in evidence.
The CHAIRMAN. I want to say that is just exactly what we want to avoid in this legislation.
Mr. BURKAN. Yes, sir; that is what you are here for.
The CHAIRMAN. We do not want to give anybody a monopoly, and we want to provide in this bill that any manufacturing company may reproduce by mechanical devices the music of any composer by paying a stipulated royalty, and then we will have competition, and the American public will have the chance to buy at the lowest possible price at which the records can be made.
Representative BARCHFELD. I want him to continue on this line of argument with reference to the songs of the Italian singer, selling for $6—the Caruso records.
Mr. BURKAN. In discussing this proposition I desire to refer !or a moment to Mr. Herbert's argument, with reference to the artistic supervision of his work. No record which is prepared by Caruso leaves the shop of these people until Mr. Caruso has heard the record and is satisfied it is an exact reproduction of his voice. He can not afford to have anything go out to the public unless it is an actual reproduction of the selection he has rendered. Now, here is a record which was prepared by Mr. Caruso, and which is sold for $2. They charge you $2, because Caruso sang for that record, and for another composition by the same composer they charge you $1, because they did not pay Mr. Puccini, the composer, any royalty. Just as Caruso's or Tetrazzini's voice make the record a commodity of value, so does the composition of the composer. Without the composer Caruso or Tetrazzini would not have anything to sing.
They pay Mr. Caruso a royalty for every Caruso record they make, and why should they not pay the composer. Puccini, who composed the song that enabled him to sing for the Victor record, is an Italian, and under the laws of Italy a composer of music is entitled to a royalty upon each and every record manufactured and sold, just as Mr. Caruso is entitled, under his contract, to a royalty. They can not get Mr. Caruso's voice for nothing, and so they have got to pay him, and why should they be permitted to get Mr. Puccini's composition, which enables him to sing this record, for nothing?
The CHAIRMAN. That is not the position taken by the English law, is it?
Mr. BURKAN. Under the English laws, as they stand to-day, the composer is in the same position as he is in this country; that is, he is not protected. I ought to say that Mr. O'Connor, who is responsible for the copyright bill introduced in England in 1906, told me that he was drafting a bill similar to that introduced in this Congress, prepared by Senator Kittredge and Representative Barchfeld, which will protect the composer in his property.
The CHAIRMAN. You know that the last law that was passed in England not only goes further than this bill, and specifically states that the act shall not apply to phonographs or talking machines.
Mr. BURKAN. The musical copyright act which was passed in England in 1906 deals only with one subject and that is the subject of seizure and punishment in the case of musical piracy. Mr. O'Connor was persuaded to introduce a bill which simply covered musical piracy, and this musical piracy law contains very severe criminal provisions, authorizing summary punishment of persons guilty of counterfeiting or dealing in counterfeit music; also authorizing the arrest without a warrant of street venders of pirated music, and authorizing the searching of premises and the seizure and destruction of pirated copies. The mechanical people appealed to Mr. O'Connor and said to him: “You don't want us to be placed in the same position as these pirates.” So, in accordance with their wishes, he inserted a provision that this musical piracy act should not apply to phonographs or talking machines. But the general musical act, which was in force at the time this bill was passed, is still the law of England.
The proposition that my friends are going to urge in opposition to this legislation is that the Æolian (ompany has entered into certain contracts with a number of musical publishers, the purpose of which is to create a monopoly.
I have been over this ground before, but I think that I ought to take this matter up for the benefit of the new members of this committee. The facts are that in 1889 a suit was started in the circuit court of Massachusetts for the purpose of preventing the manufacture of perforated rolls to be used on an instrument called the “ Organette,” on the ground that the rolls were copies of complainant's copyrighted composition. The court decided that a perforated roll was not a copy within the meaning of the copyright statute. The case was appealed but thereafter abandoned, and the case never got to the Supreme Court of the United States, because the parties failed to print their papers in accordance with the statute.
Another action was then started, several years thereafter, in the District of Columbia, the object of which was to restrain the manufacture of phonograph records, on the ground that they infringed the author's copyright. The court there decided that a phonograph record was not a copy of a musical composition within the meaning of the act.
In 1891 the international copyright act was passed, but no specific language was used in that act covering these devices. We then find that a company called the Æolian Company, a pioneer in the industry of manufacturing perforated rolls, which had invested a great deal of money in this industry, had been advised that there was serious doubt about whether a perforated roll was a copy within the meaning of the law, and that the question ought to be tested by being taken to the Supreme Court of the United States. And so this Æolian Company called on several publishers and had them sign a contract which provided that the Æolian Company, at its own cost and expense, should cause a suit to be brought in some of the circuit courts, for the purpose of testing the applicability of the present law, upon the question as to whether a perforated roll was a copy of a musical composition, within the meaning of the copyright act.
The CHAIRMAN. Just put those contracts in the record at this point. I suppose you have them all here.
Mr. BURKAN. Yes, sir.