« iepriekšējāTurpināt »
Publishers who have no contracts—Continued.
Name and address.
Stark Music Printing and Publishing Co., 127 East Twenty-third street, New
35 600 180
Publishers who have no contracts-Continued.
Name and address.
Conservatory Publishing Co., 134 West Thirty-seventh street, New York.
Mr. BURKAN. I also offer a schedule of 87 publishers having control of 381,589 compositions.
The said schedule is, by direction of the committee, inserted in the record, and is as follows:
(This paper was not furnished.)
Mr. Búrkan. The chargė that the passage of the copyright bill, securing to the composer exclusive rights in his compositions against mechanical reproduction, will create a monopoly in the manufacture of automatic musical devices is false.
The charge is solely based on certain contracts made by the Æolian Company with a number of music publishers in the early part of 1902. It is represented that these contracts were part of a scheme to place the Æolian Company in control of the business of making and selling automatic musical devices and that the enactment of the pending bill is sought in furtherance of the same scheme.
But these charges and representations are utterly at variance with the facts.
The contracts with the Æolian Company are not calculated to give . a monopoly to that company, and they were not entered into with anysuch aim. They were not made in contemplation of any legislation such as is now pending, and they would not in any way be strengthened by the passage of the bill.
The contracts originated under the following circumstances:
In 1888, when the manufacture of perforated rolls adapted to reproduce musical compositions was in its infancy, the United States circuit court, district of Massachusetts, in Kennedy 1. McTammany (33 Fed. Rep., 584), held that a perforated roll was not a
of sheet music" within the meaning of the copyright laws. This decision proceeded upon the erroneous theory that the copyright protects not the musical composition, but only the “ sheet of music” on which it is printed. An appeal was taken from this decision, but abandoned before the argument. This decision was followed and relied upon in Stern v. Rosey (17 App. Dist. Col., 562), that wax cylinders for use
in phonographs were not infringements; from which decision no appeal was taken.
Since the rendition of these decisions the manufacturers of these devices appropriated without compensation every popular composition and reaped enormous profits from the manufacture and sale thereof in the form of phonograph records and perforated rolls.
This was the situation when a number of music publishers were approached by the Æolian Company with a proposition that offered a prospect of eventually securing some compensation for the use of musical compositions in mechanical instruments.
The Æolian Company, the pioneer in this field of industry, had invested $10,000,000, we are informed, in the building and equipment of plants for the manufacture of perforated rolls. It realized that its industry was based upon the appropriation of the compositions of others without compensation. It was aware of the clamor and discontent among publishers and composers against this iniquity. Text writers and high legal authorities on copyright (Scrutton's Law of Copyright, 4th Ed. Eng. Preface, pp. vi and vii, expressed the opinion that a perforated roll or phonograph record was an infringement of the composition it was designed to represent. Such was held to be the law by the courts of last resort of Germany and Italy. Many confidently asserted that if the question were submitted to the Supreme Court of the United States, it would, in pursuance of its policy of liberal construction in copyright cases, hold perforated sheets and phonograph cylinders to be infringements of the composer's copyrights. In any event, the question was an open one, never having been passed upon by the highest court in the land.
A decision by the Supreme Court in any suit in favor of a com. poser would have meant the institution of countless actions by every composer and publisher whose compositions were infringed 'for injunctions, accountings of past profits, and damages. The Æolian Company would in such a contingency be driven to financial destruction. It feared an adverse decision and it realized that it was very essential for its welfare and the protection of the investment of its stockholders that it should take some precaution against a contingency of this kind.
The Æolian Company songht to protect itself by proposing to a number of music publishers the agreements now under discussion. In these agreements it offered to assist the publishers, by paying all the necessary fees, costs, and expenses, in securing a final determination by the Supreme Court upon a thoroughly prepared and wellargued case upon the question as to whether the present copyright laws are applicable to perforated music rolls.
The Æolian Company made this unusual and seemingly liberal offer in order to obtain in return a more valuable concession by the publishers waiving all past damages.
The provision of the contracts dealing with this point, which was the real object in making them, reads:
And for and in consideration of the premises the Eolian Company hereby covenants and agrees to pay all proper expenses of conducting the said suit for the purpose of testing the applicability of the United States copyright laws to perforated sheets, and that if the court of last resort shall in such suit decide that the United States copyright laws are applicable to such perforated sheets, then in such case and from that time forward the Æolian Company will keep books and render statements and pay royalties as provided by the aforementioned agreements of even date herewith, but shall be free from obligation to make payments for the past.
By the last line of this clause the Eolian Company protected itself against the dangers that threatened its very existence.
The agreements also provided for the payment of stated royalties in the event of the applicability of the copyright laws being upheld by the Supreme Court, and in consideration for such royalties the Folian Company was granted the exclusive right to use the publishers' compositions for its perforated rolls.
This proposition appealed to the publishers, as at that time no publisher was getting a single penny from the manufacturers for producing his compositions upon mechanical devices, and the sale of sheet music was decreasing as the sale of these perforated rolls and phonograph records increased. The publishers jumped at this offer. Each publisher was naturally anxious to get something for his product, which up to that time had been taken away from him without compensation.
To the publisher such a contract was a good business proposition. It would mean to a large publisher thousands of dollars if the court decided favorably. The publisher naturally, as any other business man, wanted to get something for his property, and it was very advantageous to get the highest court to decide this question without paying the enormous expense of such a litigation.
There was at that time no prospect of any legislation being enacted by Congress to extend copyright protection to mechanical devices, and the only hope lay in a test case carried up to the Supreme Court. But such a litigation was not easy, and required the best legal talent, besides the employment of a great many experts in the patent and musical field. And no single publisher or composer was rich enough to carry through so expensive a suit.
The publishers did not hesitate to sign these contracts. It was done openly and above board. The whole world had knowledge of the making of the contracts, the terms thereof, and the institution of the suit known as White-Smith Company against Apollo Company in pursuance thereof, which was decided against the publishers by the Supreme Court of the United States. There was no occasion for any scheming in the dark, for any conspiracy. There was no thought of anything but a plain business arrangement.
İn view of these facts it seems absurd to say that the publishers signed the contracts because they were conspiring with the Æolian Company to give the latter a monopoly.
What did the Eolian Company actually get?
It got nothing. For it must be very carefully noted that these contracts do not go into effect until the Supreme Court decides in the case of White-Smith Company 1. Apollo Company that the present copyright laws are applicable to perforated sheets, and until that question was decided favorably the Æolian Company acquired no rights whatever in the compositions.
The action of the White-Smith Company having failed in the United States Supreme Court, the contracts will become null and void. And this result will not be affected by the action of Congress on the pending bill.
The contracts with the Æolian Company do not contemplate the securing of legislation directly or indirectly. The consideration for the contracts was the securing of a decision of the Supreme Court in a test case to establish the applicability of the present copyright laws to mechanical devices, and upon the failure of that suit all the contracts must fall. The enactment of legislation securing the same result could not resuscitate the contracts. There is no provision of that kind to be found in the contracts, and there was no understanding, express or implied, that on the enactment of any legislation the Æolian Company should secure any rights under the contracts.
Even if the White-Smith Company suit succeeded, the Æolian Company could not obtain a monopoly of this entire industry of automatic devices, as is charged.
In the first place the contracts are expressly limited to perforated music sheets used in operating keyboard musical instruments.
All other automatic musical devices are not covered by these contracts, and in most of them it is provided in so many words that they shall not be construed as covering the controllers of phonographs, zonophones, music boxes, hand organs, or any other similar musical instruments.
In view of this language what foundation is there for the monopoly cry of the manufacturers of phonographs, talking machines, and other instruments that are operated by means of disks, cylinders, systems of protuberances and the many other devices that can not be classed as perforated sheets!
The charge will have to be limited to one branch of the automatic musical instrument industry, namely, that of perforated sheets. And it has no foundation there.
The musical publishers who signed contracts with the Æolian Company could not give a monopoly of the musical productions because they did not control them themselves.
Their agreements were undoubtedly sought by the Æolian Company because they were the record owners of the copyrights of many popular compositions.
But a much larger number of the then existing firms did not join in these contracts. And in the five years that have since elapsed many new firms have sprung up. All of these have been able to compete with the publishers who were parties to the Æolian contracts. They have not complained that they could not get good music to publish. Among the compositions published by these firms are many that have become popular. Even those publishers who five years ago did not control the works of any well-known composer have since brought out great successes. It is a feature of the musical field that some of the most popular successes are written by unknown composers. It is a field that can not be controlled by any set of men.
Furthermore, the publishers who became parties to the Æolian contracts had no right to dispose of the mechanical rights in most of the compositions of which they held the copyrights. For they hold the copyrights as trustees for the composers.
The usual contracts between composers and publishers by virtue of which the copyrights are taken out in the names of the publishers are nothing more than publishing contracts. The only rights that the publishers acquire are the publishing rights. The provisions as to