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the prominent music houses of the United States included but one. That remark was followed by that of another publisher who said, “Yes, and in less than a year we will have you fellows crawling on your bellies, where you belong.” Now, there is a reason for that.
This contract nowhere says that any court can or will abrogate it. And there is not one of these Æolian contracts to-day that was abrogated by the decision of the United States Supreme Court. In every case where they put such a clause as that in the contract they took two contracts bearing the same date, and the other coordinate contract makes no reference to any such abrogation.
Even that reference in the White-Smith publishing case, where we proved that the Æolian Company was furnishing the money to carry on the litigation, and where they admitted the “ trust,” the clause only provided that this company, in its wonderful interest in behalf of the composers, should not be called upon to pay any copyright.
When it is stated that that contract is abrogated, the one who so says knows it to be untrue. They had advance conferences to draft this original bill in New York, and had the interests opposed to us there, but not one word came to us to be there, although we have 625 factories, with chimneys which give out their eager fires over the landscape, and with 35,000 employees supporting that number of families, and over $83,000,000 of invested capital, with these industries created under the laws of the United States.
When the particular client whom I originally represented here, the De Kleist Musical Instrument Manufacturing Company, came to us. thirteen years ago, they said: “We believe that the great commercial future of the world is in the United States. We are going to come to the United States and bring our capital and invest it here, and we want to know whether we can go into the business of manufacturing mechanical musical instruments. Is there anything in your laws to prevent it?” We said: “No; every decision in this country and in every country of the civilized world says that you can go ahead in the business.
Representative LEAKE. Would you say that payments should be made for the use on these mechanical instruments of songs that have been published by people who paid for the writing of them?
Mr. Pound. No, sir.
Mr. Pound. Because it is impossible for a composer to take his song and put it out into the world. He has got to deal through the channels of trade.
Representative LEAKE. Why is it that a similar monopoly does not grow up in the book business?
Mr. POUND. Because the book business is altogether different. It stands by itself. Unlike the book business, the mechanical instrument depends upon the perforated roll or a disk. I do not know of one company that is manufacturing, paper rolls that is making any profit in the business. The profit, if there is any, is in the instrument. We have got to make the rolls in order to sell our instruments. The book depends on nothing else, and nothing else depends on it.
Representative LEAKE. Why should such a company as you represent have the right to use the creations of another man's mind for their profit without compensation to him?
Mr. POUND. Assuming that we do, because the laws of the land for all time have said so.
Representative LEAKE. Not in this country?
Mr. Pound. Yes; our United States Supreme Court has said so, and every other court. There is not even a single dissenting opinion of any judge in any court against the proposition I have made here. Is it not wonderful that some one judge in some place was not impressed with their logic!
Representative LEAKE. The reason is very plain-because Congress has not acted.
Mr. POUND. Undoubtedly.
Mr. Pound. Our opponents have always maintained that no legislation was necessary. They have maintained that they were always within their rights.
Let me, in illustration, give you some figures:
December 6, 1906.
Æolian Company, New York, N. Y.:
Entered by J. Herbert Chase, superintendent Eolian Company, Meriden, Conn.1897 (first entry June 3, 1897)
180 Entered by Eolian Company-1898 (first entry January 29, 1898)
161 1906; to date (December 6, 1906)
Total disks and perforated rolls -
Those figures show that up to the 6th day of December, 1906, there have been entered in this copyright office for copyright by this
a Seem to have suspended entering pending litigation.
Æolian Company over 2,000 perforated rolls; altogether the rolls and disks have been 2,268. There is a firm in Switzerland which has filed 629. The Regina Company has filed 121 and the Æolian Company itself and in connection with others has filed 2,268. Ilere I find the works of Wagner, Verdi, Beethoven, Chopin, Mozart, Strauss, Haydn, and a great many others of the masters.
The CHAIRMAN. And the “ Star Spangled Banner.”
Mr. Pound. Yes, sir; the “ Star Spangled Banner” and “ Beautiful Irish Maid," and a number of others.
Representative LEAKE. Are they copyrightable, in your opinion?
Mr. Pound. I think not. I said a year ago, and I say now, that it is their intention and belief that if they can get some declaration here on which they can base a claim, they propose to contend that their arrangement of even a perforated roll is copyrightable and any other cutting thereof would be an infringement of copyright.
Representative CURRIER. Then they get for their exclusive use for a period of forty-two years a perforated roll of the “ Star Spangled Banner," and "America," and all such songs?
Mr. Pound. Yes. And their sut which they brought here-this “White-Smith against Apollo" case-was based on an alleged infringement of a little simple melody called “My Kentucky Babe.” They claim that this iniquitous Apollo Company, this mechanical playing company, have violated one of their copyrights by making rolls of this piece. And yet, mark you, one of the rolls entered for copyright by the Eolian Company here is one of this identical piece of music.
Representative LEGARE. I believe that last year there were 800 of those copyrights.
The CHAIRMAN. Eight hundred and fourteen, and up to the 16th day of January 1.34 more.
Mr. Pound. Then there among their rolls filed is the song “ Dreaming," and "Fair Andalusia," and " Cupid and I," and a number of others.
Representative LEAKE. Could those be produced on other mechanical devices than those of the Eolian Company?
Mr. Pound. Not if they are sustained in their position.
Representative LEAKE. Would the copyrighting of “ My Kentucky Babe" by that company prevent the use of that song on one of the Edison phonographs?
Mr. Pound. You mistake. The Eolian Company use a perforated
Representative LEAKE. I understand that perfectly.
Mr. Pound. I understand their contention to be that if they file here for copyright a perforated paper roll, then my company can not use those songs.
The CHAIRMAN. They were put in there to prevent other people from using them.
Representative CURRIER. The Supreme Court has not passed on that question.
Representative LEAKE. That is what I understand.
Representative LEGARE. If I want the “ Star Spangled Banner" played on my pianola, I would have to go to them?
Mr. Pound. Yes. The company copyrighted a number of Mr. De Koven's compositions. It may be interesting to Mr. Currier to say that they have here also “My Old New Hampshire Home," and I find “My Honolulu Lady,” and “Your Key Don't Fit This Lock Any More,”. “Little Boy Blue," "Lead Kindly Light," "At a Georgia Camp Meeting," “ Whistling Rufus," " She Was Bred in Old Kentucky,” three from Sousa, and, to show their duplicity, thirteen from Victor Herbert; in fact, they have covered the whole realm of music.
Well, in this contract that I hold in my hand they give to the other party 60 per cent of all profit from the sales of these perforated paper rolls. In other words, they go out and offer 60 per cent to the party of the second part, and they have contracts in which they give as high as 80 per cent.
Representative LEAKE. Before getting away from the matter of the "Star-Spangled Banner," let me ask: Supposing that the courts should construe that these rolls filed by the Æolian Company were copyrightable, would that prevent another arrangement of that same song?
Mr. Pound. If they are subject to copyright at all, it would, I suppose; but in fairness I ought, perhaps, to say that the perforating and cutting are not the same in alì. There is a difference in some instruments in what is called the "tracker board.” So that there are some instruments which can not use the Æolian roll.
Representative LEAKE. And as to those, they would have to make an independent arrangement of the “Star-Spangled Banner?”
Mr. Pound. I suppose they would. I understand that as matter of fact they have either begun suit, or are going to enter suit, claiming that the perforated paper roll which they entered here bars every other manufacturer.
The CHAIRMAN. As far as the Æolian Company are concerned that reaches the perforated roll, but we also find here that the Regina Music Book Company of New Jersey have filed 481. Are theirs perforated, too?
Mr. Pound. Theirs are metal. Now, gentlemen, they say that out of the 625 companies in the United States no other company than the Æolian Company can file any perforated rolls. In these contracts they say that the purchaser shall not purchase for his own use any perforated music rolls except those manufactured by the Æolian Company, or offer for sale or deal in them directly or indirectly. In another clause it is provided that they shall not deal in any roll in any way, form, or manner which is not adapted to run over the track of the Eolian.
So that, in that way they would get a monopoly of the sale of the instruments. This is what they are after. You understand there is no particular profit in the paper rolls. They bind the other party not to engage in any way in the manufacture of perforated paper rolls. They require him at all times to maintain the list prices as maintained by the Æolian Company.
Then they have another clause by which they can at any time raise the price of the perforated paper rolls—that they may add to the price any royalty that they are compelled to pay, and all expenses connected with such royalty-all that is to be left to them. They (the Eolian Company) name the retail or selling price to the public in every instance.
We maintain that as matter of fact we are not taking the product of the composer without paying for it--that we are giving him every day more than any ordinary royalty would pay him, certainly more than these publishers give him.
Representative LEAKE. On your music rolls you name the song and the author?
Mr. Pound. Yes; and in many cases spend much money to advertise it. Mr. Sousa said that while that was true, yet he did not want the advertising—that he did not want any of his airs on these machines at all. He has told me this himself. I now show you a cut from the Scribner Magazine showing his picture and his advertisement that he has contracted for himself and band to play exclusively for a certain talking machine.
Representative LEGARE. He admitted it last year.
Mr. Pound. Yes; first denied it, and when it was driven home to him finally admitted it.
Representative LEAKE. What objection is there to a man saying he will lend his services exclusively to one company?
Mr. Pound. Because when great vested interests have grown up and great and useful businesses are created and a whole community of people are dependent upon them-dependent upon the great factories that are established—I say that when that condition of affairs has arisen and has come about it is not right, twenty or thirty years afterwards, to destroy them all for the benefit of a half dozen alleged composers allied with a life-long and absolutely exclusive monopoly.
The composer gets on the sheet music all that he is entitled to get.
We have heard here a great deal about the music publishers and the composers of America. I do not believe that there is a gentleman here who could, offhand, name ten American composers. My contention is that the great American public should not be exploited and the great businesses in which so much money is invested should not be destroyed. So far as the composers are concerned, the equities with them are entirely overcome by the equities that operate against them.
Representative LEAKE. Would not that argument apply with equal force to support the idea that the public are interested in there being no patents granted ?
Mr. Pound. No, sir; the patentee gets a short period of only seventeen years. This proposed copyright could under favorable circumstances extend to one hundred and two years. One of the gentlemen who appeared before you yesterday, Dr. Van Dyke, said that he wanted " his grandchildren protected.” Think of it !
The CHAIRMAN. It has been the universal practice of Congress never in any case (or I believe there is only one case) to grant an extension of a patent. Parties have been before the Senate Committee on Patents asking that certain patents be extended time and time again without success. I believe that at one time one patent was extended.
Representative BARCHFELD. There were two cases.
The CHAIRMAN. When I was first appointed on the Senate Committee on Patents, Senator Platt, of Connecticut, said to me, “ With regard to the extension of patents, I want to say to you that so long as you are a member of the Senate you should never grant them.