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The capital engaged in the musical instrument business in the United States, as I get it from the last census report of 1905, Bulletin 82, shows that the capital engaged in the musical instrument business was seventy-two million and odd dollars. The salaries paid were $3,979,000. The wages paid were $19,689,000. The value of the materials that went into these instruments was $29,116,000, and the value of the product, in that year of 1905, was $69,574,000.
Representative LEAKE. Does that include pianos?
Mr. O'CONNELL. Pianos and all kinds of musical instruments, but the piano and kindred industries produce the lion's share of that amount of invested capital. There are some band-instrument manufacturers, who do not have a very large amount of capital invested. Such goods as harmonicas and the like are mostly imported. These figures deal only with the amount of capital invested in business in this country.
I will not rehearse what I had to say to you in June, 1906, and December, 1906, as to how the interests which we represent were excluded from participation in the conferences that led up to the so-called copyright bill.
The LIBRARIAN OF CONGRESS. I object to the use of the word excluded. I must object here to the use of any word which implies misrepresentation with reference to these conferences. I was very patient in regard to this matter at the first two hearings; but I have a duty to my office and I have a duty to the conference which we called, and at which we presided, and I must object to the use of any word which implies misrepresentation.
Mr. O'CONNELL. I do not care to go into that, except to set myself right. If there is any necessity for it, the records taken from the Librarian's own office, which I hold in my hand, will show that so far as the music end of it was concerned, nobody was permitted to be at the conference except the members of the American Musical Association. Inquiry was made of the Librarian by letter from the house of Schirmer, represented by Mr. Tindale during this conference, and I have the letter here. Mr. Putnam would not answer him as to what was being done, but sent the letter to the secretary of the American Music Publishers' Association, Mr. Bacon, and he wrote back and said that the Schirmers are not in. All the other publishers of any importance in the United States, with that exception and one other, are in. Mr. Putnam finally reproaches him, in another letter, and says: "I understood that they were members." The record speaks for itself-res ipsa loquitur.
The LIBRARIAN OF CONGRESS. It would be very unfair to take up the time in the discussion of a matter which I consider irrelevant to the issue. I simply note an objection, once for all
Mr. O'CONNELL. I did not wish to go into the matter at all until you interjected it. Now, I will offer these three papers in the record. (The said letters are inserted in the record by direction of the committee, and are as follows:)
Mr. HERBERT PUTNAM,
G. SCHIRMER, 35 UNION SQUARE,
Librarian of Congress, Washington, D. C.
DEAR SIR: We observe mention of a recent meeting of publishers interested in copyright matters, the meeting having been appointed by you, and we have noticed frequent meetings of this character of which we had no knowledge until
after the meetings had taken place. From the trade-paper notices these meetings are held with closed doors in secret session, and the giving out of information by the participants is prohibited.
We are aware that all the above may be entirely a wrong report, and we write to you direct requesting you to explain to us whether these meetings are open to all with interests involved who may wish to attend, and if so, what arrangements could be made for obtaining advance notice of such meetings. It is true we do not happen to belong to any of the organizations, but we wish at the same time also to inquire whether this debars us from taking part in the hearings. We write you as a publishing house having interests at stake equal to, if not greater than, any other American concern.
[Taken from letter book 63, p. 485.]
APRIL 12, 1906.
MY DEAR MR. BACON: I understand from you that Messrs. G. Schirmer were members of the Music Publishers' Association. They now inform me that they are not. How about this?
Mr. WALTER M. BACON,
Librarian of Congress.
White-Smith Publishing Company, 62 Stanhope Street, Boston, Mass.
[Stamped: "Secretary, April 16, 1906, received."]
HERBERT PUTNAM, Esq.,
WHITE-SMITH MUSIC PUBLISHING COMPANY,
Librarian of Congress, Washington, D. C. DEAR MR. PUTNAM: I am just in receipt of yours of the 12th and hasten to reply. You are mistaken when you say you understood from me that Messrs. G. Schirmer were members of the Music Publishers' Association. They are not and never have been. With reference to the membership of the Music Publishers' Association, I will say that we have all the publishers of any consequence of the country as members of the association, with the exception of Messrs. Schirmer and the John Church Company, of Cincinnati. The first named are peculiar people, and for reasons of their own have always held aloof from any organization, although they have acted with us and contributed heretofore to any fund which has been raised for the general good of the trade— such, for instance, as the fund raised for the detection and punishment recently for counterfeiting music, as described by Mr. Burkan at the last conference. I have before me a copy of a letter written by them last April to our secretary, when it was proposed to secure the enactment of a new copyright law, and inclose copy of the same herewith.
I also inclose a copy of the constitution and by laws of the Music Publishers' Association, issued about two years ago, which gives a list of the officers, and on the back will be found a list of the members of the association which, as I said before, includes all the music publishers of any consequence in the country, with the exception of the two named.
In closing I might say confidently that it seems to be the impression among the trade that the reason the Schirmer people do not favor a change in the copyright law is because they are fearful that a new law may restrict what their business is largely made up of, namely, the reprinting of foreign music, which is noncopyright in this country, by the new law being so framed that it will encourage foreigners more frequently to secure protection in this country for their future works than they have done in the past.
Yours, very truly,
WALTER M. BACON.
Mr. O'CONNELL. Changing the original frame of what I had to say, I come down to the question which seems to be of the greatest importance here to-day, as to the constitutionality of the royalty feature in this bill.
The chairman of the Senate committee, as well as the chairman of the House committee, will remember that in June, 1906, I was asked if the manufacturers whom I represented would be in favor of paying the composer, and I said yes, if you will protect our business so that we can not be squeezed out. In December, 1906, when the same question was asked me, my position was exactly the same, and that was the position of my clients. To-day my position is just the same, and that is the condition of my clients.
We do not object to paying a royalty, provided there is a fair field and no favor, and provided that the business can not be brought into the hands of one individual or one group of individuals. That is where we stand.
Is this provision constitutional? One of the members of this committee requested Mr. Burkan to point him to some decision of some court which proved that such a provision would be unconstitutional. I venture to say, sir, that there is no such decision. On the contrary, there is an expression by the Supreme Court in a case decided when John Marshall and Joseph Story were members of the court, in an opinion in which they concurred, which proves to my mind that such a provision would be constitutional. Let us see why. The Supreme Court in the decision in the White-Smith Company against the Apollo Company has held specifically that neither the composer nor his assigns have any right to a reproduction, except with regard to the multiplication of copies in the form of music. sheets. The court has found, and has necessarily found, that an author or his assigns or a composer or his assigns have absolutely no property right in the productions by mechanical means that appeal to the ear and convey the musical idea to the brain through the ear instead of through the eye.
If you now extend the domain of the copyright, so as to give the author a right under the bill to multiply copies in the way of ordinary sheet music and also to control their reproduction by mechanical devices which convey the composition to the ear, there is absolutely no escape from the conclusion, it is as plain as that two and two are four, that you are creating an absolutely new property right.
Something is said about the liberty to contract, provided for by the Constitution. It is true that there shall be liberty to contract, but to what does that relate? It relates to such rights as a man has in existence. You could not to-day legislate a man's existing rights out of existence, if thereby you worked any harm to a contract. But here you are creating a distinctly new property right, and in creating that right why have you not got the power to annex to it such conditions as you deem wise and expedient? Why can you not do that which you have always done in the copyright?
The Supreme Court of the United States, in the case of Wheaton & Donaldson v. Peters & Griggs (8 Peters, 592), decided in 1834, uses this language:
This right, as has been shown, does not exist at common law; it originated, if at all, under the acts of Congress. No one can deny that when the legislature are about to vest an exclusive right in an author or an inventor, they have the power to prescribe the conditions on which such right shall be enjoyed; and that no one can avail himself of such right who does not substantially comply with the requisitions of the law.
I doubt if you can find plainer language in any decision.
What would the contention of the other side mean? It would mean that every copyright act you have ever passed since the year 1890, and there have been many of them, was unconstitutional because you have not given an exclusive right.
Does the word "exclusive right," as used in the Constitution, mean that when you enact for the first time a law under the enabling clause of the Constitution that you must then and there, at once, go to the full limit of your powers? That is what their contention
Their contention means further, if their construction of this constitutional provision is correct, that there is no business for the legislature to do. The Constitution and that particular clause of it are full and exact without the intervention of any legislature. The contention, if you please, is one which, in my opinion, borders closely on the ridiculous. You have the power to go to a certain distance and the Constitution outlines the uttermost limit, beyond which you can not go; but between this point and that it is for you to say how far you shall go.
If you decide that you want to extend the copyright to reproducing devices, it is for you to say what reproducing devices it shall be extended to. Suppose you say that you will extend it to phonographs but not extend it to music rolls, would my friends contend that such an exercise of your legislative power would be unconstitutional because you draw a distinction between the two? Clearly not, because that is a matter within your discretion.
Representative Law. Before you leave that proposition, I would like to know what, in your judgment, is meant by the word "exclusive" in the Constitution?
Mr. O'CONNELL. It is a word of limitation. It is the farthest line of demarcation, beyond which you could not go. It also has, in opinion, another meaning, which is that the author is to have the exclusive right to pay or royalty.
Representative LEGARE. Your idea is that Congress may grant the entire right at once, but if it does not go so far and grants a partial right it would not be unconstitutional.
Mr. O'CONNELL. In so far as it has granted a right, that right is exclusive.
Representative LAW. So that word refers to the individual for whom the right was created.
Mr. O'CONNELL. Yes; if it were otherwise, what would be the necessity of passing laws about it. All you would have to do would be to meet here and at once register that construction granting, ipso facto, all rights there and then, until the day of judgment, and you would never need to legislate again.
Now, if you please, Mr. Chairman, a good deal has been said here about the composer. You know that no composer took part in the conference. A good deal is said by the music publishers about the rights and wrongs of the composer, and a good deal is also said about what you ought to do for them in the way of a royalty. Perhaps a good deal of light will be thrown on that subject by what is stated by a large music publishing house, a member of the Music Publishers' Association, and one of the signatories to the Eolian contract. I want you to hear what they have to say about composers generally. You have heard what Mr. Williams had to say for the song writers
he represents. I will give you the name of the writer afterwards, as my friends might be nervous if I gave them the name now. He says:
I thoroughly agree with the song writer in this matter, for, as a matter of fact, the general, popular song writer of to-day knows absolutely nothing of theory or harmony nor the practice of it. He can only whistle or "fake melody which some musician or arranger will "put down" for him and arrange for the piano.
The popular song writer of to-day, as soon as he gets an idea, immediately goes to his publisher to have it arranged, and if he is reminded at the time of its being arranged that it sounds like such and such a song, he will endeavor to the best of his ability to prove to you that you are wrong in your contention, and, rather than lose his friendship (for, as a general rule, he is a valuable proposition on account of his "reputation," and is much sought after by all reputable publishers), he is placated.
PUBLISHER'S REWRITE MELODY.
In forty-nine cases out of fifty the publisher generally has the entire melody rewritten by one of the arrangers, and when it is played over for the "composer or author" they immediately suffer with an enlargement of the cranium, forgetting entirely that there is hardly a sequence of the notes as he originally conceived it, and that the entire melody has been rearranged, notes cut out, and others substituted. Nevertheless he gets all the royalties and credit for it, while the man who actually did the entire work gets from $1 to $2.50 for his labor. It generally depends upon the ability of the arranger as to what he will receive for arranging a pianoforte copy for publication.
The game" of writing popular songs is not what it used to be six or seven years ago; if a song became popular, it would make a fortune for the writer.
NOT MUCH PROFIT IN SONG WRITING.
Nowadays the royalties are so cut by the publishers that even though a song is what is termed a "hit," the author gets very little out of it unless it should sell to the remarkable figures of, say, 500,000. If a song sells anywhere near 50,000 copies the publisher tries to proclaim to the world that he has the largest hit which has ever been on the market. The author gets from 1 to 3 cents per copy; if he is unknown he sometimes gets 1 cent per copy. The "wellknown" song writer gets about 3 cents per copy. He generally writes from 1 to 50 songs before he "strikes" a "seller."
As a rule popular songs are written by more than one person; the lyric is written by one person and the music by another, although there are exceptions to this rule. The royalties are generally divided between the author and composer, so it is easy to figure the “tremendous. fortunes" the song writers of to-day are making.
In many instances the words and music are bought outright by the publisher, the general price for this being from $5 to $50, all depending upon who the author and composer are.
If the space would permit I could safely mention over 100 songs that have all in a measure recently been successful and have "made money for the publisher, but the author and composer received, figuratively speaking, nothing.
THE IMITATIVE HABIT.
The imitative habit of some song writers and publishers of following a hit with a cheap imitation of same is criminal in its inception and is generally gotten out for the purpose of bewildering the public. In a measure it has a tendency of destroying the value of the original song, which has become a hit. These vampires haven't the genius nor thought to conceive an original idea, and generally feed upon the brains of others.
This appears in the Music Trades of February 1, 1908, and is written by Nat D. Mann, of Chicago, the manager of the Witmark Company.
Representative BARCHFELD. You would not put Victor Herbert in a class like that?