principally-we have developed a new form, a new style of ensemble singing. In 1926, at the formation of the National Broadcasting Co., we were contracted by that organization, the first ones to be so contracted, with the distinct understanding that our activities were to be carefully guarded and watched, that we were not to appear more than twice a week, and that for a period of from 8 to 10 weeks each year we were to be taken off the air. As a matter of course, we went abroad for six summers-the idea being that they realized the value of not being on the air too constantly or too often.

This plan was adhered to for a number of years, but we came to find that this plan so carefully made was being defeated by the playing of our records indiscriminately and constantly through the country by various broadcasting stations. This, of course, hurt our value to clients, just as more often broadcasting through the regular chain facilities would have done. So it worked great hardship on us. In combating this condition we resolved that we would have to do very little, if any, recording. That, of course, has made a great difference to our income, because prior to that we had made a great many records which were sold throughout the world.

I think that is a specific case in our experience. The other unfair practices common to us all have been touched on by the other speakers. I think that is all, sir.

Mr. LANHAM. Thank you very much.

Mr. SPEISER. May I now introduce to you another phase of the situation, coming from those who create, and I would like to introduce Mr. Arthur Bryant.

STATEMENT OF ARTHUR BRYANT, COMPOSER

Mr. BRYANT. As a song writer of many years you might say I am perhaps the oldest song writer in the business, at least the oldest one that has appeared down here I am here to protest against that phase of the Duffy bill which would eliminate the penalty of $250 for any delinquency in payments, and I hope I am not shocking your faith in mankind by saying that I thoroughly recognize that scheme of law and philosophy that men want something for nothing, that if they can afford to get it for nothing they will not pay, and that behind all good behavior and all decent dealing and all business there must be compulsion.

We know that ever since our business has been organized there has been an attempt made by users of our material to get that material for nothing. There is a continual protest, a continual failure to pay, continual delinquency.

Let us admit that there are a good many who are willing to pay, but let us admit also that there are a great percentage of, we will say, night-club owners, cafe owners, men who deal in questionable entertainments, of course, always within the law; let us admit that they refuse to pay unless they are compelled to pay. Supposing, for instance, throughout the country in, we will say, 500 cities, we will take as an example, there are 10,000 people that refuse to pay. Can you estimate the expense of suing 5,000 or 10,000 people who would refuse to pay? There is not enough money, I believe, in the United States Treasury to conduct such a campaign. And that would be

just exactly the condition that we would have to face, and the result of that would be that we would have to go out of business. We could not run business, we could not write songs. There would be nothing for the musicians, there would be nothing for the radio to operate its advertising. We would be absolutely compelled to desist, because if we could not collect those bills-and I do not know how we could collect them, because there would be a demand in each case for a specific technical detailed amount of our losses, which would be impossible to give; it would involve such an extreme expense that the amount collected would not even begin to, what you would call, wash off the expense of collecting it.

It is particularly for this reason that I am here to protest against that elimination of that clause in the Duffy bill. I do not think I need take up your time and waste a lot of words to tell you. I wish I could cite an analogy to this. If I am not out of order, I would like to say that our own Government of the United States holds a threat over and must hold a threat over its income taxpayers of the imposition of a penalty if they are delinquent in their taxes. If the United States Government has to do that, it would seem to me that it is more necessary and more compulsory on us to do it in a small organization like the A. S. C. A. P., dealing with what you call a questionable body of men, as I said before, night-club owners, cafe owners, and they represent a very large proportion of our payers.

So if you eliminate this penalty clause, it seems to me that we would have to discontinue business. I, for one, as a song writer would ot write. I know my conferes would not write. We could not collect, we could not run, we could not operate. And if we did, the collections from those who are willing to pay might be so small that it would not pay us to continue it.

So that is the reason I am here to protest against the elimination of that clause, as I do not see it would wreak anything except disaster. It would be a tragedy.

Thank you.

Mr. LANHAM. Thank you very much.

Mr. SPEISER. May I introduce Mr. George Meyers, a composer, who, I think, would like to say something to the committee in support of the Daly bill.

Mr. LANHAM. We will be glad to hear you, Mr. Meyers.

STATEMENT OF GEORGE MEYERS, COMPOSER

I

Mr. MEYERS. Gentlemen, I am a composer of popular songs. assure you I am much better at a piano than I am addressing a com

mittee.

However, I want to say that I sincerely think these gentlemen should have some protection for their interpretations, which I deem a great help to the composition, sometimes almost as important as the composition.

That is about all I have to say. Thank you.

Mr. LANHAM. Thank you very much.

Mr. SPEISER. We have with us some one who requires no introduction to this committee, and who is vitally interested in the Daly bill; that is. General Ansell, if I could call on him for a word.

Mr. LANHAM. General Ansell.

STATEMENT OF GEN. SAMUEL T. ANSELL, GENERAL COUNSEL, AMERICAN FEDERATION OF MUSICIANS

General ANSELL. Mr. Chairman and gentlemen of the committee, my name is Samuel T. Ansell. I am a lawyer with offices in the Transportation Building here. I am general counsel for the American Federation of Musicians, an organization composed of a large majority of instrumental musicians in our country, numbering somewhere between 140,000 and 150,000 American citizens who earn their livelihoods through the playing of instrumental music. The organization is composed of musicians, is for practical purposes an organization of laborers, and is affiliated with the American Federation of Labor. Mr. Joseph N. Weber is the president of the organization, with headquarters at 1450 Broadway, New York City, and has been its president for some 35 years. It is on his request that I appear. Mr. Hayden, who is the executive officer of that organization here in this city, accompanies me.

The several bills pending before your honorable committee have a consequential rather than a direct effect upon the members of our organization as such, but nevertheless these consequences are of very great interest to us. Some of our members are also authors and composers, and for that reason are more specially interested.

The general interest of our members, as such, however, arises out of the fact that they are the professional performers of copyrighted music. The great orchestras so well known to you gentlemen of the committee by reason of the radio and other like general performances, their conductors and personnel, are members of our organization. We have heard them speak this morning, and I can assure you that they are entitled to, as they will receive, the most serious consideration of this honorable committee.

There are three or more bills pending before your honorable committee, and your committee is giving the most thorough consideration to them all, I might say the most thorough consideration that has ever been known to me. These bills seem to us to approach this very difficult subject from different angles and from different viewpoints. The subject of copyright is one that not only involves the exclusive rights of intangible property of individuals, but in the highest degree the policy of Government and the interest of our people as a whole. No particular view will prevail and no one bill can be confidently regarded as containing the best legislative expression upon the subject, which is universally fraught with the most serious questions and with which our people are none too well prepared to grapple. These difficulties are vastly increased by the methods of mechanical publication and reproduction which distinguish the present age. I feel safe in saying that a more intense study of the subject will have to be made and that that is made possible by the long and laborious hearings which have been held by this committee, or such at least is my view, and I must assume that this honorable committee will have in the end to write its own bill after most thorough executive consideration with such aid as it can get from representatives of the various interests affected.

The American Federation of Musicians does not profess to be able to analyze and helpfully discuss all the material provisions of each

of the several bills pending before this committee. We know that the committee would, of course, prefer that this be done, and yet we feel that it is all but impossible to do so. We shall have done our best when we offer to you some general considerations with the hope that you will have them in mind when you come to draft your bill. Naturally, we, the instrumental musicians, are individually interested in preserving in the largest possible degree the art of living music and the employment opportunities of the living musicians. We believe that therein will be found the highest public interest. As between the living performer of music and mechanical methods of reproducing music, we believe that the policy of legislation should tend to favor the living musicians and should favor him up to the point where to do so becomes impracticable or clearly militates against the public interest, convenience, or necessity.

We say this, first, upon economic grounds and, secondly, but of even greater importance, upon the ground of proper public policy, involving both economic and cultural considerations.

Four years ago a committee of the House of Representatives considering a bill to prevent admission into this country of alien musicians, a bill which was enacted into law, took occasion to make a thorough study of the economic plight of the American instrumental musicians. It found:

(a) That the plight of the American musician was little less than pitiable. Some 65 percent are out of employment at this day.

(b) That theretofore America was fast becoming, if indeed it had not already become, the leading musical nation of this world, a thing which we Americans who are inclined to worship things which bear foreign labels have been rather slow to recognize.

(c) That even before the present depression came, the American musician had lost his place and was deprived of his opportunity to earn a livelihood by reason of the introduction of the sound picture and to a considerable extent, and now in increasing extent, the radio industry's use of but a few nationally known orchestras, and more recently the almost unlimited use of records and transcriptions.

In addition, aside from what this committee is considering, but in order that it might have a picture of our general situation, the burden of the American instrumental musician has been greatly aggravated by the competition of some 165 Army and Navy bands, which are permitted to furnish music to every conceivable kind of social function, with civilian sponsors prominent enough to get the use and I think the unlawful use of such bands.

Of course, this is a highly scientific and mechanical age. We could not, if we would, radically change it as it affects music. Nor could the Congress. But we do say that Congress in its legislation should not stimulate, even if it cannot entirely restrict, the general adoption of mechanized music and of wholesale mechanical reproductions.

However, this is a scientific age. Much of science is devoted to the production of mere substitutes, the substitution of the artificial for the real. Such substitution has its rational limits beyond which we should not give it any impetus. Unless the machines of this age can be made subservient to human interest, they may, indeed, mark the way back to barbarism.

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We know, of course, that where real living music cannot practically be had, the mechanized music can and should be adopted. But we should never attempt to create the artificial appreciation that mechanized music is as good as living music. May I say-and we all know it-that music is one of the greatest if not the greatest of all the fine arts. Music is a thing of the soul, of the higher personality, a thing of the human spirit, and not of a machine, however startling, however novel, however ingenious the machine may be. Music enters into and elevates the life of any people, and to an extent far greater than we usually acknowledge music determines a people's destiny. We must stress the place of the human artist rather than that of the novel and intriguing reproducing machine. We should protect the human artist in every one of his rights, not only because they are rights which belong to him as the creator-and the performer is a creator of art-but also because thereby our people in general will be benefited and even exalted.

As a lawyer I am convinced that an artistic performer or interpreter has a right as such recognizable in the law of copyright. It is true that our Constitution speaks in the apparently restrictive terms of authorship and writings, but such a restrictive sense is only literal, it is not real and spiritual. That clause of the Constitution is elastic enough to justify legislation that meets the situation created by a so-called scientific and mechanical age.

"Author" means much more than the author of a written composition, and "writing" means much more than what we usually understand by that term.

I invite your attention, because this thought was clearly stated by the Supreme Court of the United States, to the leading case of Lithographic Co. v. Sarony (111 U. S. 53), when 54 years ago the Supreme Court of the United States held that a photographer had a copyrightable right in his photograph which a lithographic company could not infringe by reproduction.

Photography, the Court said, is an art, and the author is the man who really represents, creates, or gives effect to the idea, fancy, or imagination. An author, said the Court, is one to whom an intellectual or artistic creation owes its origin. He is an originator, a maker, and the writing is the mere form by which the ideas in the mind of the author are given expression.

That case is a leading case in our country on the subject, and the Court had to approach the question as one of first impression, but the Court, however, did refer to supporting English cases. In England the subject of copyright has always been much more liberally regarded than it has been with us.

I think that the question is not as to what Congress can do under the Constitution, but what it will do or ought to do as a matter of wisdom and policy.

I believe, as a lawyer, that one who puts his distinctive skill, personality, spirit, and genius into the performance and rendition of a musical composition may be an author, and whatever means that reproduces that performance is a writing subjected to be copyrighted under the constitutional power of Congress. For that reason, the Daly bill especially elicits the interest of the American Fed