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It is in support of this bill (the Kittredge bill, s. 2900) that I urgently ask your support and cooperation, in the interest of ourselves, our brothers, and our friends, with the request that you write to all your Members of Congress, urging them to rally to the support of the Kittredge bill and to do all they can to secure the defeat of what is known as the Currier bill, a bill which has been introduced specifically denying authors and composers from all protection of the copyright law in so far as mechanical instruments are concerned, and which bill has, of course, the undivided support of the mechanical instrument trust and combination.
The Authors and Composers' Copyright League of America, which counts many Friars among its members, will be glad to furnish full particulars, literature, and matter for newspaper items to all who apply to their honorary secretary, Mr. Reginald De Koven, 734 Knickerbocker Theater Building, 1402 Broadway, New York. Fraternally, yours,
WELLS HAWKS. Please sign and have filled by brother Friars and friends inclosed page from our big petition and return immediately to me.
(Authors and Composers' Copyright League of America - Victor Herbert, president ; Jobn
Philip Sousa, treasurer ; Reginald De Koven, honorary secretary.]
734 KNICKERBOCKER THEATER BUILDING, Ncw York. BROTHER FRIARS : Through the kindness of the Friar Abbot, we are enabled to secure your valuable cooperation in this righteous fight for the passage of a bill that will secure to the authors and composers of our American melodies the rights to which they are justly entitled.
We take the liberty of asking that each of you take this matter up with your newspaper friends and theatrical acquaintances, and endeavor to secure the publicity and space that this meritorious campaign deserves.
We understand that at a recent meeting of the Friars it was officially decided to espouse this worthy cause, and to render all assistance within the power of the members of this organization. And a committee was also appointed to take the matter in charge.
We will cheerfully furnish further information, details, and copy matter upon application to our secretary, Mr. Reginald De Koven, 734 Knickerbocker Building, Thirty-eighth street and Broadway, New York. Fraternally, yours,
VICTOR HERBERT, President Authors and Composers' Copyright League of America.
Mr. O'CONNELL. It is but fair to say that Mr. Johnson, representing the dramatic producers and manufacturers, disavows all this.
Representative LEGARE. I would like to put in evidence here one of those letters from a publishing house refusing a manuscript, showing that in all likelihood this same manuscript will be accepted if they can reach their Congressmen and pass the Barchfeld and Kittredge bill.
(The letter referred to is, by the direction of the committee, inserted in the record and is as follows:)
[Joseph W. Stern & Co., music publishers-Importers and manufacturers of musical
instruments and merchandise. ]
Nos. 102-104 WEST THIRTY-EIGHTH STREET,
New York, February 5, 1908. DEAR SIB: We regret to say that we can not consider the inclosed manuscript at the present time, for the reason that we are putting out very few songs now on account of the condition of the copyright law regarding phonographs, selfplaying pianos, etc.
You know that the phonograph companies make thousands of records of the best pieces without considering the composer or the publisher. In other words, they practically use the successes without asking permission and without paying anything for the same.
This is a great injustice, and as soon as it is remedied the publisher will feel a great deal more like accepting new manuscripts. There is now a new copyright law in Congress which will make the phonograph companies and the makers of mechanical instruments pay a small royalty for the use of the same.
Every writer and composer should do their utmost to see that this law is passed, as it will benefit every composer in the country. If you will take the trouble to write to your Congressman explaining the matter and tell him that the condition of the music publishing business is such that you can not get your manuscript accepted simply on account of the present copyright law, we are sure that your Congressman will see the justice of the thing and will support the new bill. Very truly, yours,
Jos. W. STERN & Co. Representative CURRIER. The little composers all over the country have been sandbagged by the sending of those letters.
Mr. O'CONNELL. A great deal has been said by Mr. Burkan to the effect that the Æolian contracts have been abrogated by the decision in the White-Smith suit. That is interesting in view of the fact that the Eolian representative refuses to abide by that statement. The peculiar thing is that in making their contracts with all of the publishers they made two contracts. The contracts come in sets of two. The White-Smith decision does absolutely abrogate contract No. 2, which Mr. Burkan read to you. They both bear date on the same days, and that decision leaves contract No. 1 absolutely intact. In the preamble under a whereas there is a reference to copyrights for musical compositions. It refers to copyrighted musical compositions of which the publisher is the proprietor and those other musical compositions which may hereafter be protected by copyrights.
Then further down in the clause is a provision that the publisher transfers to the Eolian Companythe exclusive right for all perforated music sheets of the kinds aforesaid, in and to all the copyrighted musical compositions, of which the publisher is the proprietor, or in the case in which he is the owner of any less rights to the extent of said rights, and does hereby covenant and agree with the Eolian Company to give and secure to it the exclusive right in like manner for all perforated music sheets of the kinds aforesaid in and to all of those other musical compositions which may hereafter be protected by copyright, and the copyrights or rights in which may be acquired by the publisher.
Does not that mean future copyrights, under whatever law they may be issued.
I will not burden you with going into the question as to what the effect of this would be, except as to one thing. By this competition in the perforated roll field, the Æolian Company has had to cut the price of its rolls in half. I have a catalogue of the Eolian Company in 1901 and I have a late catalogue for 1905. For the purpose of comparison I have marked the first two pages of the 1901 catalogue, just to show you how the prices have been cut in the 1905 catalogue. Every single one of them is cut exactly in half.
I have here also a little table showing the present prices charged by other houses, and you will find that the Connorized Music Company are a fraction lower in each instance than the Æolian Company.
If you put this monopoly into their hands, how long will they keep the prices at the present figures? If competition has cut prices, what will happen if you relieve them of that competition?
Representative LEAKE. Is there not a monopoly put into the hands of every publishing house which receives from an author the exclusive right to publish a book?
Mr. O'CONNELL. There is a monopoly as to that particular copyright and that particular book; but if you find the owners of all the copyrights in the United States agreeing that they themselves shall hold all of those copyrights for their common benefit, the public would be in a sorry plight.
Representative LEAKE. Is not that possible under the present law relating to books?
Mr. O'CONNELL. Anything is possible; but are you going to permit it?
Representative LEAKE. Is it not possible under the law now, and under this present bill if you pass it?
Mr. O'CONNELL. Not if you have the universal royalty.
Representative LEGARE. If one house controlled all the books that were published the prices would be apt to go up.
Mr. O'CONNELL. They certainly would.
Representative LEAKE. Is it not possible for all of the people who produce books to get together and agree to have those books published by one house, and then could not a monopoly grow up?
Mr. O'CONNELL. That is unquestionably so.
Representative LEAKE. There is no provision in this law against that.
Mr. O'CONNELL. Not that I know of.
Representative CURRIER. There is a provision against that to a certain extent in the importation clauses, which, if such a condition as you describe should prevail, Congress would be very apt to widen.
Řepresentative LEAKE. Congress has allowed the same condition to grow up with respect to books.
Mr. O'CONNELL. I will answer you in this way in regard to the book industry: If a monopoly of that kind on books were possible, it would simply affect the books published. There is no other industry depending upon that book at all. With reference to the player piano, the other essential part of it, in order to operate it, is the roll which produces the music. The cost of that apparatus to produce the music is very small. The roll itself will cost but a dollar and . a quarter or a dollar and a half, while the machine will cost a couple of hundred dollars; but if you monopolize the rolls, you not only monopolize the roll business, but you monopolize the piano-manufacturing industry, in the hands of one concern.
Suppose I have a store in which I am selling player pianos and the monopoly has a store next door. It costs me as much to play my player as it costs them and I can only get such rolls as I can procure outside of the combination. They will not sell me any, but a customer can get all of the rolls he wants, all of the modern pieces, from them. A purchaser comes into my store and he finds that I can only sell him a few rolls and you can sell them all. Where would he buy-certainly not from me.
The trouble is that through one little feature of the industry they seek to control an entire industry in which $70,000,000 of capital are invested. In the book trade, when you have monopolized the book,
there is nothing over and above that which you can monopolize; but in this case when you monopolize the $1 music roll you are also monopolizing the $250 player.
Representative LEAKE. The reason books have not been monopolized by one publishing house is undoubtedly because new authors are coming to the front all the time.
Mr. O'CONNELL. The narrow question is whether the owner of a copyrighted book can put a notice in it and say that it must be sold for less than a certain price, and then if somebody buys it and sells it for a less price he infringes the copyright law.
Another thing to show how these people seek to monopolize the industry is this theory of contributory infringement, which, of course, you gentlemen are very well informed about. All of the players that the Æolian Company. put out now have a restrictive license noted on them which says " our player must only be used for music cut by us." Some outsider sells a roll for use in that machine and they promptly cut off the outsider, bring him up in court, and get an injunction against him for contributory infringement. If they can apply that principle to the player and restrict the player to be used only with the Æolian rolls, why can they not put a notice on their rolls and say the rolls which we make must not be used except on the Æolian players. The circuit court of appeals has affirmed that doctrine of contributory infringement.
Representative LEAKE. What is the position of your clients now? Are they in favor of the law as it stands, or are they in favor of this license?
Mr. O'CONNELL. We have never looked for legislation, but if you must legislate, we will take the universal royalty as a general scheme, under proper safeguards, of course.
Now, with regard to what the composers usually get from the publishers, when they have a royalty agreement. In the record of the White-Smith suit a composer testified who had apparently gotten out a great many publications, and he testified that his first great success, which was published on a royalty twenty-eight years ago and which is still selling to-day, netted him $11; that his great song, " Who will buy my roses red?” which sold to the amount of 100,000 copies, netted him $83; that his great composition, "World's Exposition March,” netted him $5; that the “ Cadet Two-step," of which 50,000 copies were sold, netted him $4, and so on ad infinitum; and that out of 1,500 compositions he had probably earned $5,000.
Representative CURRIER. Mr. Sousa testified here that he sold one of the most popular compositions he ever wrote for $35.
Mr. O'CONNELL. A question was asked by Mr. Currier of Mr. Klein, whether he thought the State courts would give him ample relief. The common law gives very stringent relief, by way of injunction, in cases of unfair competition.
I do not think it is necessary for me to call the attention of the committee to the condition of the copyright laws in England, Belgium, Switzerland, France, and Italy. As a matter of fact, the Supreme Court itself points out very clearly what the result of the last Berne convention in 1886 was, and how the companies signatory to that agreement were bound by it. You know what the law in England is to-day and what the law in Germany is.
Representative CURRIER. Has any country on earth ever passed an act to prevent the reproduction of music by means of a phonograph, or is there a country on earth that has legislated on the subject, which has not provided that that shall not be an infringement?
Mr. O'CONNELL. There is no such country, sir. There have been countries in Germany, for example--where they did attempt to legislate on the subject.
Representative CURRIER. I am speaking about phonographs.
Mr. O'CONNELL. They all come in under the same category. If you get a music box, the principle is the same.
I want to refer you now to the Piano and Organ Purchaser's Guide, to show the component parts of the Æolian Company, and you will understand in a moment why I do this. It is the guide for 1908, and contains a statement showing what companies the Æolian Company controls and what it manufactures.
Æolian Company.-Incorporated. Capital, $500,000; surplus, over $2,000,000. H. B. Tremaine, president; C. M. Tremaine, vice-president; E. S. Votey, secretary; William E. Wheelock, treasurer; H. M. Wilcox, assistant treasurer. Directors : H. B. Tremaine, C. M. Tremaine, E. S. Votey, E. R. Perkins, F. G. Bourne, H. M. Wilcox, G. W. Curtis, Robert Maxwell, William E. Wheelock. This concern is controlled by the Æolian, Weber Piano and Pianola Company, which has a capital of $10,000,000 and is a concern of international standing and reputation. (Refer to it in piano department.) Factories at Æolian, N. J.; Meriden, Conn., and Worcester, Mass. Retail warerooms, Fifth avenue, near Thirty-fourth street, New York, where they have recently erected a magnificent home, which is universally acknowledged to be the most unique, complete, and artistic establishment of the kind in the world. Manufacture the “Æolian,” or self-playing pneumatic reed-organ, which has been indorsed by the most prominent musicians, artists, scientists, and the leaders in social and business circles both in this country and abroad. The late Queen of England, the Pope, and other distinguished personages have purchased these instruments. Their goods are sold by leading and representative dealers all over the United States. Also make the “ pianola," for which refer under pianos. Financial and commercial standing of the company unquestioned.
Æolian, Weber Piano and Pianola Company. Incorporated with a capital of $10,000,000. Three million five hundred thousand dollars preferred stock and $6,500,000 common stock. President, H. B. Tremaine; vice-president, Atherton Curtis; treasurer, William E. Wheelock; secretary and assistant treasurer, E. S. Votey. Directors: Harry V. Tremaine, Atherton Curtis, William E. Wheelock, Edwin S. Votey, Fred G. Bourne, G. Warrington Curtis, Robert Maxwell, Charles M. Tremaine, Edwin R. Perkins, H. W. Beebe, John W. Hines, James A. Coffin, George B. Kelly, F. L. Young. General offices, No. 362 Fifth avenue, New York. Factories: Worcester, Mass.; Meriden, Conn; New York City; Æolian, N. J., and Gotha, Germany. This company was formed to own and control the following manufacturing and operating companies: The Æolian Company, manufacturers of the æriola, æolian orchestrelle, the pianola, metrostyle pianola, pianola piano, and the æolian pipe organs; the Weber Piano Company, manufacturers of the Weber piano; George Steck & Company, manufacturers of the Steck piano; the Wheelock Piano Company, manufacturers of the Wheelock piano; the Stuyvesant Piano Company, the Vocalion Organ Company, the Votey Organ Company, the Orchestrelle Company, of Great Britain; the Choralion Company, of Germany and Austria ; the Orchard-Land Company, and all the branch houses of these various corporations. The Æolian, Weber Piano and Pianola Company was organized in order to secure a more efficient and economical management of the large, diversified, and international interests of the various corporations which compose it. In December, 1904, it acquired the ownership of and all rights, title and interest in the old established and distinguished house of George Steck & Company, manufacturers of the “Steck piano." This company owns and operates a large factory in