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That there is no infringement in the phonographic edition “sui generis ” of airs of music without words.
Prohibited the defendants from continuing by these processes to injure the appellants under a penalty of 100 francs for each infraction.
Ordered confiscation of all disks and cylinders inscribed and placed on sale, to the prejudice of these rights.
Condemned the defendants to the payment of 500 francs provisional damages and ordered that definite damages be fixed by agreement between the interested parties to be arrived at upon a statement of sales made, to be furnished to the appellants by the appellees.
Panic seized upon the defendants, and all manufacturers and dealers closed their establishments, fully expecting a raid by Vives and his associates for the purpose of confiscating all records in stock. Some of them remained closed for several weeks.
Vives opened expensive offices and began to issue manifestos to the trade in which he warned them that failure to comply with all his requirements would mean confiscation of their stocks, endless litigation, and ruin.
Provisional labels were printed, and he let it be known that he did not intend to prohibit the sale of the records, but would authorize their sale provided each bore a label issued by him and purchased from him at a price named by him. Before these labels could be obtained, however, a contract recognizing his right to impose the tax, not only in France but throughout the world, must be signed and delivered to him, and the statement of sales already effected furnished him upon which to base his demand for damages.
Some manufacturers and dealers signed such contract and in lieu of furnishing the statement agreed upon a lump amount to be paid him as liquidated damages. Pathe Frères paid the enormous sum of $100,000 in this way.
The Columbia refused to sign the contract or to pay a lump sum as damages. It indicated its intention of taking the case upon appeal and approached the other defendants with a view of securing their cooperation, but none of them would join in an appeal and expressed their determination to make the best terms they could with Vives so as to secure supplies of labels with which to continue business.
We had a number of interviews with Vives and finally arranged with him that he would supply us with labels up to a total of 100,000; that we would furnish him with a statement showing the total quantities of records already sold on which the tax was payable, and would get from New York instructions as to payment of the indemnity.
During negotiations with Vives he insisted that all records should be labeled. We refused to label records not containing words. Some manufacturers conceded the point and put labels on all records. We persisted in our refusal.
Frequent demands from Vives that labels be affixed to orchestra and band records and threats to seize, etc., if we refused.
We apply to court for interpretation of decree as applied to orchestra and band selections. Vives withdraws demand that such records be labeled.
We furnish Vives statement of our sales and show quantities taxable. Vives refuses to accept our figures and demands $100,000 indemnity for past.
Informed him could not entertain his demand; that any settlement must be based on figures furnished him.
About this time Vives refused to furnish labels to Gramophone Company unless they paid him $500,000 for past. Wrote threatening letters to their customers.
Grama phone sued Vives for $20,000 damages on account of above. About same time reconsidered decision and perfected appeal from decree of February 1, 1905.
Pathe also arranged with one of the small manufacturers who appeared as defendant to appeal.
Vives's agents find some unlabeled Columbia records in hands of dealers in Marseille and Nice. Seizes them and claims $20 each from Columbia.
Columbia denies responsibility and refuses to pay.
Vives attaches bank account of Columbia on account of above seizure on the ground that Columbia is a foreign company and may remove assets, etc.
Attachment quashed on ground that Columbia not responsible for acts of its dealers, etc.
Vives secures an order from the Government through Poinca rre, who has again accepted a post as cabinet minister, directing custom officers to treat talking machine records coming into the country as other copyright articles and to seize any which do not bear labels. Orchestra records excepted from this order. Effect is to compel labeling of records before arrival in France.
Vives renews demand for a settlement and suggests submitting to arbitration. We refuse and say must settle on figures furnished or not at all.
Vives threatens to discontinue supply of labels.
Demand made by Columbia for labels and refused by agency and Vives Demand repeated several times and each time refused.
Action for damages for refusal to supply labels. Hearing of action and adverse decision. Appeal.
Inspection by agency of Columbia stock in presence of commissary of police.
This brings the matter down to date. Only the principal stages are indicated. If you want details you will probably wish to refer to our different letters on
I have asked Paris to furnish me as soon as they can with a statement of the expense up to date. Will send you this as soon as received. Yours, sincerely,
Assistant General Manager. It will thus be seen that the manufacturers in France have not been having the rosy time Mr. Prescott pictures.
Passing to the Italian situation, Mr. Prescott in his letter to Mr. Currier says:
I beg to state that during the summer the Italian decision has been rendered decisively by the highest court in Italy. This was a straight victory for the copyright bill in all three Italian courts, they confirming the lowest court.
Lack of time will not permit me to trace Prescott's relation to the fight in Italy, except to say that at the time he wrote the above to Mr. Currier he must have known that it was untrue. The decision he refers to is on appeal, and has not been reached yet by the highest court in Italy, and in fact the case can not be reached until some time in April of this year.
I am now reading from the circular headed, “ Copyright situation in Europe and America :?
Austria : Lower court in Austria decided January, 1908, in favor of publishers and authors. Higher courts will undoubtedly sustain lower court, as Austrian decisions are seldom reversed.
It is true that a court in Austria, notwithstanding the very clear wording of the Austrian law making it perfectly lawful to make mechanical reproductions of musical copyrighted works, handed down a decision recently against The Gramophone Company for making records of the “Merry Widow." The nominal plaintiff in this suit was Doblinger, the Vienna publisher of the “Merry Widow.” The real plaintiff, however, was Mr. Prescott's company, The International Talking Machine Company, of Weissensee bei Berlin, which was seeking to obtain a favorable decision in the Austrian courts (as the Eolian Company attempted here), so as to put in force its exclusive and monopolistie contracts in Austria.
As for the silly statement that "higher courts will undoubtedly sustain lower court, as Austrian decisions are seldom reversed," decision rendered by the court of appeals in Vienna only day before yesterday will perhaps disturb the equanimity of our friends on the other side. I submit to the committee an original cablegram sent to me from London, which reads, translated :
Vienna court of appeals decided in favor of Gramophone in case of Doblinger. No infringement can be proved.
As my time has nearly expired it will not be possible for me to continue to point out to you the inaccuracies and misstatements contained in these pamphlets which have been sent you by the Authors and Composers' League of America or to trace Prescott's connection with the whole matter. In order, however, that you may get a clearer insight as to what this international fight on mechanical reproducers of music really means and its aspect as regards the talking machine industry, I submit herewith, and ask to have printed, a statement prepared by Mr. M. Dorian, of London, entitled “The Men Behind," and an editorial which appeared recently in the Musical Age, entitled “The Men Behind in this country.”
We ask you to favorably report the Smoot-Currier bill, and point out that the greatest beneficiaries under the Kittredge-Barchfeld bill, if it should be enacted into law, would be foreign publishers and composers.
Representative LEAKE. I am informed that that is erroneous. What is your attitude in the matter? You represent some association ?
Mr. CROMELIN. I represent the American Musical Copyright League, of which I am president. I am vice-president of the Columbia Phonograph Company, General, and we are members of the League.
Representative LEAKE. You have succeeded in satisfying the committee that that pamphlet is false and erroneous. The committee is not here to determine the character of an individual, but to determine what is the best character of legislation. Now, on behalf of your company, what stand do you take with regard to this legislation?
Mr. CROMELIN. The matters contained in the pamphlets from which I have been reading are of importance only because they represent statements emanating from the Authors and Composers' League of America, of which Mr. Herbert is president. They have been sent broadcast and forwarded to every Member of Congress, and I maintain that if these men come here and ask you to enact into law a copyright statute which gives them new rights which every legislature has refused to give in every country where the subject has been considered by the legislature, the very least they can do is to give you gentlemen of the committee facts, and not issue pamphlets alleged to be for “your edification and benefit," but which in reality contain statements which are false and misleading.
Now, as to our position, I think I can safely say our position has been consistent from the beginning. We have taken the position that it was neither wise nor expedient to bring these mechanical reproducers within the purview of the copyright law. I refrain from touching upon the question of constitutionality. We have pointed out that the greatest good to the greatest number would prompt you to follow the lead of Great Britain in its musical copyright act of 1906, and that is just what the Smoot-Currier bill does. We have held that if the equities of the subject were to be considered the preponderance of equity would induce you to give freedom of musical mechanical reproduction the same as the other great powers do. We have insisted that we have no composer class in this country to protect, but that these mechanical players are distinctly the product of American inventive genius and of American factories and should not be despoiled for the sake of a small group of publishers, the largest percentage of which are foreigners. But we have held that if, notwithstanding all these things, your committee comes to the conclusion that the composer is entitled to remuneration, then the bill should be framed in such a manner that these great industries, which have been honestly built up under the law, should not be jeopardized, and if after deliberation it is the opinion of the majority of your committee that some such fair plan putting all the companies on the same basis, providing for universal royalty, and safeguarding all interests is wise, expedient, and proper, you will not find us opposing, but rather cooperating to the extent possible.
In this connection you will find by an examination of the record that the opposition to some such scheme for universal royalty has not come from the manufacturers in the past, but from Mr. Sousa, Mr. Herbert, the music publishers, and such representatives of the American Copyright League as R. R. Bowker and Robert Underwood Johnson.
I have prepared a memorandum showing every reference to the subject in the printed reports of the hearings which took place in June and December, 1906, which I will leave with the committee if desired.
Representative LEAKE. I suppose we are here to get information. (The memorandum was ordered inserted, as follows:)
MEMORANDUM AS TO UNIVERSAL ROYALTY.
Persons who favor.
At the hearings of June, 1906, universal royalty favored by Mr. J. J. O'Connell. (See p. 114 of hearings.)
At the hearings of December, 1906, universal royalty suggested by Mr. Horace Pettit, representing the Victor Talking Machine Company. (See p. 201 of hearings.)
At the December, 1906, hearings a universal royalty proposition was agreed to by Mr. Bowers. (See p. 236 of hearings.)
At the hearings of December, 1906, a universal royalty proposition was made by Mr. C. S. Burton, for Melville Clarke Piano Company. (See pp. 255, 256, 257, and 258 of hearings.)
At the hearings of December, 1906, Mr. F. L. Dyer agrees, representing the National Phonograph Company. (See p. 291 of hearings.)
At the hearings of December, 1906, a universal royalty proposition was made by Mr. George W. Pound, for De Kleist Musical Instrument Company. (See pp. 318 and 319 of hearings.)
At the December bearings, 1906, a universal royalty proposition was agreed to by Mr. J. J. O'Connell, for the National Piano Manufacturers' Association. (See p. 363 of hearings.)
Persons who oppose.
At the December hearings, 1906, the following persons opposed the idea of a universal royalty proposition :
Mr. R. R. Bowker, vice-president American Copyright League. (See p. 77 of hearings; also pr. 85 and 86, same hearings.)
Mr. Robert Underwood Johnson, secretary American Copyright League. (See pp. 91, 267, and 268 of hearings.)
Mr. Nathan Burkan, attorney for Music Publishers Association. (See p. 224 of hearings.)
Mr. Victor Herbert. (Same page.)
Mr. CROMELIN. In conclusion, gentlemen, I understand that to the extent possible matters which had been brought to your attention at the previous hearings were not to be repeated here. In December, 1906, I filed with your committee several letters which had been sent us from publishers and composers urging us to make records of their pieces. I merely want to advise you that, notwithstanding the agitation which has been going on for the past two years, we continue to receive such letters almost
daily. I have selected a few of those which best illustrate how the composers and publishers themselves feel about the matter, and will leave them with your committee to use in your discretion in the record if it seems desirable.
Gentlemen, I thank you.
(Mr. Cromelin presented the following letters to be inserted in the record) :
45 West TWENTY-EIGHTH STREET,
New York, March 3, 1908. COLUMBIA PHONOGRAPH COMPANY,
New York. GENTLEMEN : Inclosed find order for 250 records of Sweetheart Days. When same are finished, kindly deliver them to the Automatic Vaudeville Company, 48 East Fourteenth street. Also kindly rush the Keep on Smiling records, and oblige. Yours, truly,
JEROME H. REMICK & Co.
REQUISITION. Jerome H. Remick & Co., 45 West Twenty-eighth street, New York, to the Columbia Phonograph Company, 250 records of Sweetheart Days.
(Will Rossiter, music publisher, 152 Lake street, Chicago.]
MAY 14, 1907. Mr. R. F. BOLTON,
Columbia Phonograph Company, New York, N. Y. DEAR Sir: Your letters of April 18 and 27 both received, and we wish to thank you for quotations, etc. We have been dela ved in answering same, owing to the fact that we have been moving and have been obliged to neglect considerable business on that account.
Regarding the song we previously sent you, we have decided not to order the records of this song, but inclose herewith professional copy of one of our newest hits, which we are pushing, entitled Since You Called Me Dearie, and you can make us 1,000 XP records of this song at once and ship to us by freight at the earliest possible moment. We would prefer to have chorus sung by quartette, and you will notice that the quartette arrangement is on the copies sent you.
We want you to make a special effort on ths number, as it is our first order with you, and if the record is satisfactory we will send you considerable future business.
Kindly acknowledge receipt of order, and let us know how soon we may expect shipment.
We presume of course that this number will also be listed in your regular monthly catalogue, which is sent to dealers. Hoping to hear from you, I remain, Yours, respectfully,
AUTOMATIC VAUDEVILLE COMPANY OF WISCONSIN,
Milwaukee, October 24, 1907. COLUMBIA GRAPHOPHONE COMPANY,
Bridgeport, Conn. DEAR SIRS: Under separate cover we are sending two copies Southern Snowballs. This rag two-step is composed by one of our music department managers.