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public and rights which foreign countries will not give to American composers?
Mr. TINDALE. I am not prepared to answer that; but reciprocity will take care of it.
Representative BARCHFELD (to Representative Currier). What about Italy?
Representative CURRIER. That protection is given not by law, but by decision of the courts, and if that decision in Italy is changed by the court of last resort, then if we should enact this bill the Italian composer would have the right to compensation.
Representative BARCHFELD. What about Germany?
Representative CURRIER. Germany does not protect against the phonograph.
Representative BARCHFELD. It protects against the perforated roll. Mr. TINDALE. I want to give you a few of the reasons why we should like to have the language of the Kittredge bill adopted, instead of the language of the other bills.
I believe that the main point about which the composers and publishers have contended from the start, in the matter of automatic musical instruments, has been practically conceded by the opponents of the bill we are advocating that is to say, the property rights of the composer of music; the fact that he is a man like the rest of us; that he has a right to live the same as ourselves; that he is entitled to pay for his work. and that it is unjust to take his property without remuneration.
Some of the opposition have stated to me since the previous hearings that they would now be willing to pay a royalty for the use of the composers' music if, on payment of royalty, all manufacturers could have the same privilege. This, I take it, is now the only material point about which there is disagreement on this phase of the subject.
Representative CURRIER. You are not altogether correct. There have always been certain members of the House committee who were opposed to any change.
Mr. TINDALE. Perhaps I should modify that by saying that it is the principal point of contention between parties outside of the committees. I shall therefore confine myself to that one point.
On its face their proposition (compulsory license) seems fair, but in reality it does not seem to me to be so. It would be superfluous for anyone to explain to this committee that a man's property either belongs to him or does not belong to him. It is not his property unless he is free to dispose of it as he may choose. It is true this forms what might be called a monopoly, but all ownership of property is in a sense a monopoly, especially when we come into the field of patents or copyrights. It is intended to be a monopoly.
The CHAIRMAN. You admit it would be a monopoly. Do you think it is right for us here to grant you something you have not got and which the Supreme Court of the United States says does not belong to you, and at the same time you say that by granting you that right there will be a monopoly created?
Mr. TINDALE. A copyright itself is a monopoly, and it is only in that sense I used the word. If you do give a copyright, it should be a copyright in fact, and not a nominal copyright.
Representative CURRIER. If we decide to create absolutely new property rights, is there any reason why we should not attach such conditions as we think proper to the exercise of those rights?
Mr. TINDALE. The owner should be able to dispose of his property as he chooses; otherwise he does not own it. The only exception to this that I recall is where a State or a city may take over property under condemnation proceedings, for public use.
Representative CURRIER. No, a railroad company can condemn a piece of property and can go right through it.
Representative BARCHFELD. But only by right of a franchise granted by the State.
Mr. TINDALE. But for a manufacturer or individual to have such a right is repugnant to every sense of justice. A man's property is and should be his absolutely.
Representative CURRIER. Mr. Tindale, do the people whom you represent object to a provision in this bill which would give them a percentage royalty? Is it compensation they want, or exclusive control? Mr. TINDALE. We object to such a provision for the reason I will give you.
Representative CURRIER. What is it you want, compensation or exclusive control?
Mr. TINDALE. We want both.
Representative CURRIER. And you are prepared to let the bill go to wreck and ruin unless you can have both?
Mr. TINDALE. We have a fairly good copyright bill as it is.
Representative CURRIER. We want to understand your position. Do you wish this bill to fail unless we give you both compensation and the exclusive right? I want the country to understand who are responsible for the possible failure of this legislation.
Mr. TINDALE. We are willing to take that responsibility. We want a good bill or no bill at all.
Representative LEGARE. You want everything or nothing?
The CHAIRMAN. You represent a large interest here, and so far as you are concerned, you think the present law is a very good law?
Mr. TINDALE. Yes, sir; except on this one point. It is claimed by the opposition that if the composer keeps the exclusive right to dispose of his music for mechanical instruments, some certain manufacturers would obtain that right to the exclusion of others, and the machines or instruments manufactured by those others would be shut out from using those particular pieces. That is granted; but what of it? Music publishers have to face the same situation. Book publishers the same, and any manufacturer of a patented or a copyrighted article. Mr. Herbert contracts with his publisher for a certain piece of music, and no other publisher can copy it. Were it not so, his original publisher would have no object in going to the expense of preparing the editions and advertising them.
The CHAIRMAN. Do you know of any other incident in the history of this whole country when there was an effort made to secure a monopoly in the cutting or reproduction of music, outside of the one made by the Eolian Company?
Mr. TINDALE. Would you mind repeating that question?
The CHAIRMAN. Do you know of any other case in the history of this country where one concern tried to secure an absolute monopoly of music, except the one attempted by the Eolian Company?
Mr. TINDALE. But that has been knocked in the head by the Supreme Court of the United States.
The CHAIRMAN. But you are asking us here to pass a law so that it can be carried out.
Representative CURRIER. Are there not many indications to-day that a close connection still exists, and do you not believe that if they got by legislation what they could not get in the Supreme Court, every one of these contracts would be renewed?
Mr. TINDALE. We only want you to give the right to the composer. It is true that if this bill is passed, a talking machine or piano manufacturer would not be able to reproduce certain pieces which might hereafter be acquired by another company; but instead of being a disadvantage this would be to the general advantage. The whole bill is for the encouragement and protection of the useful arts, and the manufacturer who found himself in that position would encourage and stimulate other composers to write pieces as good or better that those belonging to his competitor. The mountains and valleys of America have produced and are producing in other fields as great men as ever have trod the earth. Why not the same in music? Are we to have but one MacDowell, but one Sousa, one Herbert, and has all the good music been written that can be written? By no means. We can not yet claim to have counted and catalogued all the stars in the heavens. Until we have done that, I say to you that the invention of man has not yet exhausted the combinations of melody and harmony that can be made within the five lines and four spaces of the musical staff. They are practically without limit. Other Herberts, other Sousas, and other MacDowells will produce melodies as sweet and harmonies as divine as any that have charmed the human ear; and they are entitled to our encouragement. Many of the world's masterpieces of music have been written by men goaded by the stings of poverty. Is it not deplorable? Let us do a little better by our composers. Surely on the American plan of fair pay to all workers and producers we ought yet to create music better than the world has ever known. And for any manufacturer with unlimited means at his command to plead that he would not be able to get music the same or as good as his competitor is weak and it is therefore un-American.
The matter of rivalry therefore between the various manufacturers would consist not only in who could produce the best machine, but who could obtain the best music, both old and new. This is competition that is eminently fair, and it should be so. The progress of science and the useful arts spoken of in the Constitution could not be forwarded in any better manner than in a good, healthy rivalry between manufacturers along honest and equitable lines, as provided for in this bill. In a good, healthy rivalry the public comes to its own.
Besides, it must not be lost sight of that thousands of pieces of the world's best music are in the eminent domain and may be used by anyone who may wish to do so. A masterly collection, almost countless in numbers, is to-day open to any manufacturer.
I believe that we should concede to vested interests so far as to give all manufacturers free use of all publications now existing; but that from this time forward the composer should own his com
positions absolutely. He would be free to sell his mechanical instrument rights to one firm if he desired, or to sell it to several (as he probably would do in actual practice), according to whichever would be to his best advantage, or could withhold those rights entirely if he chose. This I hold to be fair, and the universal business laws of supply and demand would be left free to work equity and justice between all the parties. .
In conclusion, as to so-called vested interests, I for one am willing to make a concession. But no manufacturer can rise on this floor and claim that he has innocently and confidingly invested fortunes in manufacturing plants, believing that he would have perpetual right to the use of musical compositions without license or payment of royalty. Every manufacturer is, and must have been, aware that this point has been in litigation and that it has occupied the attention of our courts for some eight or ten years past, having just now reached final decision.
(The committee thereupon took a recess until 2 o'clock p. m.) The committee reassembled at the expiration of the recess.
STATEMENT OF MR. HARRY WILLIAMS, REPRESENTING THE WORDS AND MUSIC CLUB OF AMERICA.
Mr. WILLIAMS. Mr. Chairman and gentlemen, the Words and Music Club of America consists of about 200 members who are popular-song writers. To be eligible to membership in this club an applicant must have written a song which has been a hit. We have no music publishers in our club, and therefore you will understand that I am here only in the interest of the popular-song writers, who receive absolutely no royalty from their productions, although very often we write the song which is the hit of a particular reproduction.
There is no use for me to go into detail about the subject you have already heard thrashed out before you. We would prefer, of course, exclusive right to our publications, but if a monopoly should be created we would stand to lose as much as anyone.
Representative LEGARE. In other words, you write the words to the songs, and if those songs were monopolized by one house you would be at the mercy of that one house?
Mr. WILLIAMS. Absolutely, and therefore we would have to have in view some provision to offset the idea of monopoly.
The CHAIRMAN. Why would not a royalty do that?
Mr. WILLIAMS. A royalty would do it. We are in favor of a royalty absolutely. We would prefer, of course, our exclusive rights, for the simple reason that in the future there may be illegitimate concerns that will crop up, and we would like to protect ourselves against them. However, we believe that some of the phonograph companies and self-playing instruments will use our songs and that they will pay us a profit, and that that will be better for us. Of course in the case of Mr. Herbert it is entirely different. He is a genius. He is a man whose work will live after him; but we are men who just write the ordinary popular songs, and our songs do not live after us. The life of a song is very short, only about one year, and the life of a song writer is not much longer. I want to tell you that if he writes one hit in his lifetime he is pretty fortunate.
We are not here to antagonize anybody, but we are here to meet you halfway on any legitimate proposition, and I know that is the only kind of a proposition you will offer.
Representative CURRIER. A compulsory percentage license, which will work automatically, will give you ample revenue where you made a hit and would be satisfactory to you and the association you represent?
Mr. WILLIAMS. It would be satisfactory to us, so far as our popular songs are concerned, but I have heard several times that it would be unconstitutional.
Representative CURRIER. That is a matter that is up to the committee, and the committee will not report such a provision at all until they are thoroughly satisfied as to its constitutionality.
Mr. WILLIAMS. I agree with you.
The CHAIRMAN. Further, in answer to that, Mr. Williams, I have about 500 letters, many of them from women, claiming that this provision is unconstitutional.
Representative CURRIER. Every one of which was written in New York City.
The CHAIRMAN. Mr. O'Connell, you have been allotted thirty minutes' time in which to address the committee.
STATEMENT OF MR. JOHN J. O'CONNELL, OF NEW YORK
CITY, N. Y.
Mr. O'CONNELL. Mr. Chairman and gentleman of the committee of Congress, this is the third time it has been my privilege to address you on this copyright legislation. I appear now to represent the National Piano Manufacturers' Association of America, consisting of about 150 manufacturing houses. They manufacture pianos and piano players, and not one of them manufactures perforated rolls or any other kind of a record for reproducing sound. Their players, such of them as do manufacture players, are operated by perforated rolls, but those perforated rolls they buy in the open market. None of them cut rolls for themselves, and not one of the clients I represent has any occasion to have dealings with either the music publisher or composer.
The CHAIRMAN. Can you tell me how many perforated roll manufacturing houses there are in America?
Mr. O'CONNELL. There may be as many as a dozen. In New York there are three principal ones. The one owned by the Eolian Company is called the "Universal Music Roll Company." There is another one represented here that is called the "Perfected," sometimes called the "Perforated Music Roll Company," and the third is represented by Mr. Walker, and is called the "Connorized Music Company."
Besides the National Association of Piano Manufacturers, I have been directed to represent the great house of Steinway and to state to you their position. They are not members of the National Association of Piano Manufacturers. You will not misunderstand me. I do not represent all of the members of the National Association of Manufacturers, because there are four or five concerns in this association which are now component parts of the Eolian Company, and I wish to be understood as saying that I do not represent that company or any component part of it.