The Government in return for that disclosure executes a contract by which it gives him exclusive right or monopoly for a limited period of 17 years. Likewise, the author discloses his product, and by statute, it is protected. It is my opinion that if Congress repealed that law the repeal would not affect rights already accrued under the present copyright law.

Mr. TUTTLE. May I ask, Mr. Chairman, that you hear Mr. Frank Sheridan for just a few minutes. I am asking that simply because Mr. Sheridan is a music publisher and he is going to give you a little example of just what radio can do.

STATEMENT OF MR. FRANK SHERIDAN, ACTOR AND MUSIC PUBLISHER, NEW YORK CITY, AND PEBBLE BEACH, CALIF.

The CHAIRMAN. State you full name and address and occupation, Mr. Sheridan.

Mr. SHERIDAN. Frank Sheridan, New York City, and Pebble Beach, Calif., actor and music publisher.

The CHAIRMAN. Now, Mr. Sheridan, make your own statement. We will give you time to make it.

Mr. SHERIDAN. All right, thank you. I have been an actor since I was 12 years of age. I have written songs. Twenty-one years ago I went into the music publishing business. I was asked to join the society at its inception. I went to the initial, or rather the formative meeting, and certain things that were in the constitution and by-laws I objected to and I said, "I am out." I never joined it. I am known as one of the independents. My chief objection was that the board of directors perpetuated itself. Another objection was that one of the founders of it, Mr. Rayhubble, when I said the constitution was not to my liking, stated, "This is patterned directly after the French Authors and Composers' Society." I said, "I am not a Frenchman; I am an American;. and I would like to have a voice in the selection of my officers." There are several other things, and, anyway, I did not join.

In 1913 I published two songs by Victor Schertzinger. He was a musical director at that time and is now, and a famous motion. picture director. The names of the songs were Marcheta and Dream Girl. Marcheta is perhaps the biggest selling song on the market today. I want you to note that I published it in 1913. It was very stagnant for years. It showed little signs of life about four years ago and then flopped. Along in the summer of 1922 it commenced to move. It commenced to move on the coast. In November it was moving quite rapidly, and in December it was coming along in great shape, and in January I knew I had a hit. So I put Mr. Schertzinger back on royalty. In fact, he had sold the songs to me, and I put him on royalty because I thought it was only just that he should have some benefit from the big sales. In January of this year I brought out this very song, Dream Girl, reissued it. It had gone out of print.

Now, what I want to state for radio is this: Four-fifths of the sales of Marcheta, which have been enormous, is due to the advertising that I got through broadcasting. I advertise very little. In fact, I did not advertise that song a particle until it topped 500,000 copies. Therefore, I can on my oath state that the success of Marcheta was

due to the playing of the orchestrations and the singing of the words over radio. When any publisher states that radio playing hurts a song, I stand as an example to repute such statement.

Senator DILL. Did you charge any fee?

Mr. SHERIDAN. They could help themselves. The only thing I charged for was orchestrations, not having machinery and being rather a small firm and publishing educational and school music. I had a lot of school music and sometimes high-class sheet music. The CHAIRMAN. You are speaking of Dream Girl?

Mr. SHERIDAN. Dream Girl. I started in January. The latter part of January or the 1st of February I reissued it. I cut it loose on the radio, and the best proof in the world is that in March my top order for Dream Girl was a thousand copies from one firm. Not one dollar has gone into any style of advertising Dream Girl outside of orchestration.

Senator STANLEY. It would not do to wake her up at all.

Mr. SHERIDAN. There is no question in my mind, gentlemen, but what radio is a great benefit to the song publisher. Shapiro, Bernstein & Co. was mentioned here. I was going to say that I have not facilities for handling the orchestra end of it. So Shapiro, Bernstein & Co. made arrangements with me to buy a certain number of our orchestrations of Marcheta as the demand for them was very great. I do not know what the sales have been since the 5th of October when they entered into the contract, but I imagine they topped 10,000 orchestrations, and they sell at a price all the way from 15 cents to 25 cents. They sell those orchestrations to leaders and to their mail-order trade.

Now you may want to know how I knew the effect of radio. I knew it by being responsible for the success of "Marchita." There are orders coming in from towns that I never heard of. For instance, three orders in one week came from a town in North Dakota called New England. I looked it up and saw that it had a population of 1,300 people. That happened somewhere around last November. I inquired and found that they got it from radio. Now there were three sales of that copy in this little town, showing that it does extend

the sale of sheet music.

In regard to this society, I would be strong for the society if it was the authors' and composers' society and not the publishers. Mind you, not publishers, and I am a publisher. If the authors and composers could get what is due them, we would have a better class of music. I know the tricks and the wiles of the publishers as well as any of them. A composer that wrote for me published with one of the members of this association. He put out a number and he sold on the radio-he was the leader of a radio show-some 4,600 copies of this number that he wrote. The semiannual statement of the publisher showed that the publisher turned in 2,400 and some odd copies sold in the six months. Yet the second month of that period was the month that he sold 4,600 and some odd. Then the publisher found that the bookkeeper made a mistake and he got returns on 5,200 copies of this song, which was really a very famous song.

That is one of the things that publishers-not all of them, thank God-but that is one of the tricks that they hand out to authors and composers who are the most underpaid men in this world, and underpaid by the publishers, and the publishers only and that class.

A division that is in the constitution and by-laws says publishers, and if you look at that board of directors and then at the Publishers' Association, you will find that the two are linked together, and nothing can smash that organization in New York.

Senator DILL. Mr. Chairman, Major Sherwood from Walter Reed Hospital, would like to make just a brief statement.

The CHAIRMAN. All right, Senator; we will hear Major Sherwood

now.

STATEMENT OF JOHN W. SHERWOOD, MAJOR, MEDICAL CORPS, UNITED STATES ARMY, DIRECTOR OF OCCUPATIONAL THERAPY AND RECREATIONAL OFFICER AT WALTER REED HOSPITAL

Major SHERWOOD. I am sure the members of the committee are aware of the benefits of the diversional interest radio has for all us healthy people, and I am sure you have a fair estimate of what it means to sick people who have been shut in for any considerable time, but I think you really would have to be connected with an institution to fully appreciate the situation.

You have probably noticed in the newspapers recently that there is an effort to establish radios in the Government hospitals in Washington. We have sufficient funds now to start installations immediately. I can speak, of course, primarily for the Walter Reed General Hospital, but, as I do not think there is anyone else here, I am sure it would be appropriate for me to give you an idea of the other hospitals also, and of all shut in patients.

I have been a doctor for 15 years. We propose at the Walter Reed Hospital to have a head set for each patient, thanks to the generosity of these people who have contributed.

We have some patients there who have been in the hospital since 1918; a few. We have others who have been there for periods ranging from one to three years. It has been a remarkable thing to those people who have never heard certain things to now have the advantage of hearing them over the radio. We have sporadic cases there that have their own sets now. We have approximately 900 patients, of whom about 400 are war veterans, the remainder being mostly from the standing Army.

We expect to have a head set for each patient, and I am sure you can all appreciate what it is going to mean to those men who can not get out of bed and who are often fastened to a frame and can not leave the immediate vicinity of their bed.

Senator DILL. And they have no other way of getting this up-to

date music?

Major SHERWOOD. They have no other way. Our ambulance cases fortunately get other entertainment. We have in our Red Cross recreation huts a great many entertainments. Half of our patients can not leave the wards and many of them can not leave. their beds.

I merely wanted to give you that side of it and to mention, of course, the greater diversion that these people will be able to get over radio, the better benefit is going to result.

Senator DILL. Mr. Chairman, Mr. Cohen wishes to make a brief statement to the committee.

The CHAIRMAN. Very well, we will hear Mr. Cohen.

STATEMENT OF MR. SYDNEY S. COHEN, PRESIDENT MOTIONPICTURE THEATER OWNERS OF AMERICA

Mr. COHEN. Gentlemen of the Patents Committee of the United States Senate, as president of the Motion-Picture Theater Owners of America and representing theater owners in every State in the Union as well as my own theatre holdings in New York City, I desire to register our protest against the unfair and discriminatory operations of the American Society of Composers, Authors, and Publishers, or what is commonly known as the "Music Trust," in compelling theater owners and others to pay a music license fee for performing music, in which the theater owner secured property rights through purchase or which was sent to them for demonstration purposes by the agents of the society levying the tax upon them.

As exhibitors of motion pictures we make no direct charge for the music rendered in our theaters, that being incident only to the picture presentation which constitutes the performance. The justice of the situation has always been fully satisfied, if indeed there is any equity resident on the side of the Music Trust, through the great value our playing of the music to millions of people daily has been to the authors and publishers and others interested in the sale of the music to the public.

We do confine the presentation of the picture to those within the theater who must have an unobstructed view of the screen. We do not confine the rendition of the music as that may be heard anywhere where sound may penetrate. Therefore our use of the music can not be said to come within the purview of what is being retailed for profit or that we enter into any resale of the copyrighted article within the intent of the act of Congress, or what was proposed by those who framed and passed the law now being perverted into a legal blackjack by the agents of the American Society of Composers, Authors, and Publishers in levying tribute upon the theater owners of the country.

In order to fully understand the present conditions under which a society of authors, composers, and publishers of music seek to levy periodical tribute from the motion-picture theaters, radio, hotels, and cabarets having orchestras and performing music which such theaters, radio, hotels, and the like buy in the open market, it is necessary to go back to the history of the enactment of public-performing rights for works held under copyright.

The original copyright laws of the United States gave protection to the works of an author only against its reproduction in tangible form; that is, in the form of copies which could be handed from one person to another. The right so accorded afforded no protection to a play which was not written for the purpose of reproduction in copies, but solely for representation, and among the early amendments and additions to the rights given under copyright following petitions from the dramatic authors and producers showing that this character of production was wholly unprotected under copyright. An act was passed, approved August 18, 1856, under which "any dramatic composition designed or suited for public representation shall be deemed and taken to confer upon the author or proprietor * the sole right * * * to act, perform, and represent the same or cause it to be acted, performed, or represented on any stage or public place during the whole period for which the copyright is obtained.”

* *

This provision continued in effect until the act of March 4, 1909, inasmuch as the copyright law immediately prior to the enactment of 1909 (sec. 4952 of the Revised Statutes) was as follows:

SEC. 4952. The author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and, in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others, and authors or their assigns shall have exclusive right to dramatize and translate any of their works for which copyright shall hve been obtained under the laws of the United States.

It is true that prior to the enactment of the last copyright act the theatrical authors and producers of musical plays petitioned Congress against the unauthorized reproduction of their musical plays and an amendment was passed (sec. 4966) making a penalty for performing dramatic and musical compositions, but inasmuch as the act carried no rights in regard to music, there was never any action taken under this provision, as it was a remedy given without a right.

In the several hearings under the various bills introduced prior to the enactment of the present copyright law, it was shown to the committee that in many instances songs were written exclusively for specific vaudeville performance which were not reproduced in copies for sale and that many of the numbers of operas, operettas, and musical comedies which were separately registered as musical numbers had no protection against public performance and it was urged that works written for stage purposes; that is, written for the purpose of public performance for profit should be protected under the law. claim was made at that time against the performance, public or otherwise, of musical works not so written, and when the committee reported a bill giving the right to perform a copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit." The committee and Congress had no intention of extending this protection beyond works written for production or performance upon the stage.

No

All of this is clearly shown under the various committee hearings and even under the report of the committee (Rept. No. 2222, 60th Cong., 2d sess., accompanying H. R. 28192) in which this provision. is not even referred to as a new right and wherein the entire report covers rights and remedies under mechanical reproduction as being the only new rights afforded music generally.

In the earlier actions by the Music Trust all of these facts were apparently overlooked in the presentation of the case to the courts but whether overlooked or not it is patent upon the examination of the records of the hearings that Congress did not contemplate giving any exclusive public performing rights for music generally which could be purchased in the open market, and the appeals of the motion-picture theaters, radio, hotels, cabarets, etc., now made are largely for a copyright law which would effect the intention of the Congress which passed the existing act.

The purpose of music written generally for sale can not be for public performing purposes, but instead is for the purpose of sale and distribution, and the copyright committee reporting the old