That is the reason they are making this fight. The broadcasters, who are paying us $2,500,000 a year now, know that with this law eliminated if the Society gets $500,000 it is lucky. The hotel man will not pay a cent, the exhibitors not a cent.

What has the honest man to fear? The man who is not a pirate has nothing to fear. What is he complaining about? The man who wants a license, who wants to pay, has no occasion to quarrel about the $250 clause. It is the pirate only who is concerned.

The counterfeiter does not want you to pass any laws against counterfeiting.

Mr. DEEN. Just one or two more questions, Mr. Burkan.

Your position, then, is that the $250 clause ought to be retained? Mr. BURKAN. Yes.

Mr. DEEN. You do not have confidence that the judges of the courts of the country will render fair and equitable judgment in cases of infringement, just as they would in all other damage cases? You do not have that confidence?

Mr. BURKAN. That is not a fair way to put it, Mr. Deen. That is the stock argument used by the broadcasters and all the rest. Mr. DEEN. I never heard it used in my life.

Mr. BURKAN. I have read you a decision of the Supreme Court in which the Court reviewed the very question, and the Court said that prior to 1909, although infringement was proved, the courts had rendered inadequate and insufficient damages, so as to put a premium upon piracy and to make piracy a safe practice. I read you the · decision.

Mr. DEEN. But Mr. Burkan, I am not questioning the constitutionality of the law, I am questioning the advisability of the minimum penalty for damage.

Mr. BURKAN. This is not constitutionality. The Supreme Court gives you the reason.

Mr. DEEN. I thought you said it was a decision of the Supreme Court.

Mr. BURKAN. Perhaps you did not understand it. Here is what the Court said.

Mr. DEEN. I understand it. Let us not read it any more. I understand it.

Mr. BURKAN. It is not a question of confidence in courts at all. I told you of an instance yesterday where because the charter was not produced 17 cases were thrown out of court, instead of saying to the man, "I will put the case over for a week; go on and bring your charters."

We refuse to be subjected to the conditions prevailing before 1909. We do not propose to get 8 cents for an infringement. We propose to have the law protect the creative men of this Nation.

Mr. DEEN. The creative in music and art only, but not in science, medicine, and so forth?

Mr. BURKAN. My dear friend, you are mistaken in this talk about the scientific men of America not being protected. No man has the right to reproduce any medical work or any scientific work. If it is done the man is a pirate and action can be brought and is brought by the scientific man and he makes his recovery, and his minimum damage is $250.

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As a matter of fact, for your information, suits have been brought. There are cases on record where the scientific works have been pirated, where medical works have been pirated.

Mr. DEEN. Mr. Burkan, it is apparent that we are honestly and widely opposed in our views. I want to ask Mr. Buck two or three questions, and then I am through.

What percentage of the popular songs and other music is written at the present time by persons who are not members of your society, if you know?

Mr. Buck. I could not answer such a question as that, sir.

Mr. DEEN. Of course, I did not know whether you could answer it or not.

Mr. Buck. You are asking me how many popular songs are written in the Nation by nonmembers of the society?

Mr. DEEN. No, not how many. I say, do you know approximately what percentage of the popular songs and other songs are written by persons not in your society?

Mr. BUCK. I have not the slightest conception. I can not answer that.

Mr. DEEN. What amount, if any, has your society received from the maximum penalty of $5,000?

Mr. Buck. Never got one that I know of in our history. I will ask our attorney.

Mr. BURKAN. Never.

Mr. Buck. I never heard of such a thing as that.

Mr. DEEN. There is a maximum penalty, you know.

Mr. Buck. I know that; never.

Mr. DEEN. That is in the existing law.

Mr. Buck. Never in the history of the society or never to my knowledge has any song writer ever asked for $5,000.

Mr. DEEN. All right, Mr. Buck. Now, you are familiar, or at least you know something about the suit that was filed in New York in the district court on February 3 by the Remick Music Corporation? Mr. BUCK. Yes, sir.

Mr. DEEN. Against the Columbia Broadcasting Co.?

Mr. Buck. Yes, sir.

Mr. DEEN. Claiming infringement on two songs by broadcasting over the network of, I believe, 134 stations?

Mr. Buck. That is right.

Mr. DEEN. The Remick Music Corporation filed suit claiming $5,000 for each station, the maximum penalty, the maximum damage, amounting to $670,000. You are more familiar with that than I. Í want to ask you this question: After the Columbia Broadcasting Co. had paid the copyright owners for those two songs-I believe the songs were Some Sunny Day and That Old Fashioned Mother of Mine-first: Were they members of the society?

Mr. Buck. The publishers were not.

Mr. DEEN. However, they had been paid. Do you think it is fair, then, that these affiliated stations, this network of stations who relayed it to the general public, should likewise have to pay this $670,000, $5,000 per station? Do you believe they should have to pay that $670,000?

Mr. Buck. May I answer this question? To start with, the Remick Music Co. is not a member of the American Society. That is the first

thing. They were the so-called owners of those copyrights of those two songs.

That is the first time to my knowledge-in fact, I am going further: Under this Duffy bill they have a right to sue for $20,000 a performance instead of $5,000 a performance.

Mr. DEEN. I understand that, I know that is in the bill, but I have not said anything about the $20,000. I am just asking you the question: Do you believe they ought to pay that amount, that $670,000? Do you think that is fair?

Mr. Buck. Now, Mr. Deen-——

Mr. DEEN. You need not answer if you do not want to.

Mr. BUCK. You are certainly not going to put me in a judicial position, nor have I the elasticity of mentality to answer such complex questions. If one man sets an estimate on what he thinks his property is worth and he wishes to sue a man and submit that to a court, then each suit stands on its own legs and that judge is going to be the judge of that.

Mr. DEEN. But you do not want your suits to stand on their own legs, you want an advantage of $250.

Mr. Buck. We have stood on our own legs.

Mr. DEEN. But you want the $250 minimum damage.

Mr. Buck. The broadcaster does not want the $250 clause so he can pirate and get these works for nothing. There were 60,000,000 performances in the air last year, broadcasted works.

What is happening here? What is going on here? These men want to take this $250 off. This bill is against the society that I have the honor to lead, men who have not a voice to speak for themselves. That is what brings them here. These creators should be on their knees here; that is an incentive for initiative to a man with this gift who creates songs to help them so they would have better radio programs, so they would have better music for the culture of this Nation. What are they doing to them? The men I am talking for, they are trying to rob them, they are trying to make it so that these men's works will be utilized for their selfishness and their greed, and they will control their raw materials.

Mr. DEEN. Another question, now.
The CHAIRMAN. Let him answer.

Mr. DEEN. He has already answered.

Mr. Buck. I would like to recall yesterday; I wish to apologize if I got too heated.

Mr. DEEN. I asked for light and you gave us heat.

Mr. Buck. A locomotive is only as good as its brakes, and a man is only as safe as his self-control. But you led me up a street that is extremely sensitive to me, sir. That brings us to this bill. This bill is not going to help the copyright laws of this Nation.

Mr. DEEN. Which bill?

Mr. Buck. The Duffy bill is the one of which I am speaking. This bill is to set back copyright 100 years, and to destroy the only decent organization, that sticks out like Mt. Shasta, in the protection of the creative workers of this Nation, men who write these songs.

Mr. DEEN. Mr. Buck, I read your stories; you are a good writer; I want to congratulate you on your stories.

Mr. Buck. Not such a good writer; I feel some things deeply, from my heart.

Mr. DEEN. Incidentally, in that connection, I want to ask you this question:

You sincerely and honestly and conscientiously, irrespective of your connection with your society as its president, and irrespective of any remuneration you may receive, deep down in your heart believe that the Duffy bill is objectionable from practically every standpoint? Mr. BUCK. I think the Duffy bill was put together for the specific purpose of destroying the American Society, not to improve copyright in this Nation.

Mr. DEEN. You think Senator McAdoo and Senator Duffy were motivated by partial motives?

Mr. BUCK. May I say, sir, that I am not challenging the motives of Senator Duffy or Senator McAdoo. I have respect for the men who make the laws of our country, sir. You have an honest belief on the questions you propounded to Mr. Burkan and me. Mr. DEEN. I have; yes, sir, I have. Mr. Buck. You have that right. What brings us here is to try to find some light instead of heat on the question. All I am trying to do with whatever gifts I possess is to put in this record a clarification of the points you are propounding.

Mr. DEEN. One more question, Mr. Buck. Why did Warner Bros. break away from the society?

Mr. BUCK. Because they wanted more money; human greed.

Mr. DEEN. Greed?

Mr. Buck. Yes; plain greed, g-r-e-e-d.

Mr. DEEN. What percentage of the holdings of your society did they own or control when they broke away?

Mr. Buck. They claimed when they left the society-this is a good time to put it right in the record.

Mr. DEEN. I want to get it in the record. That is why I am asking you.

Mr. Buck. About a year ago, the first time-let us take you back, if you will permit me, sir, for the sake of the information and to clarify the reason.

Mr. DEEN. As long as the chairman will let me.

The CHAIRMAN. Go right ahead, and do it in your own way.
Mr. Buck. If you will permit me to do that?

The CHAIRMAN. Go ahead.

Mr. Buck. It is the only way, because this is a rather complex situation.

The Warner Bros. are producers of pictures and owners of picture houses. I believe they own and control about four-hundred-andeighty-odd picture houses in this country.

Some years ago, prior to 1930 or around 1930, the Warner Bros. bought four very important publishing houses in this country. This picture company went into the music-publishing field and bought these publishing houses. There was a 5-year agreement in existence between those publishers and the society.

Last year Warner Bros., whose representatives sat on our board of directors, and had been with us throughout the years, requested that the society secure more money for their catalogs. They did not think that what they were receiving was commensurate with their contributions, and they asked our board of directors to secure for them more money.

With a sympathetic knowledge of the problems that confront this society, we told the Warner Bros.: "We are not out for all the traffic may bear and never have been. This is not a corporation, this is an association."

And the Warner Bros., with all the powers they possess they also own broadcasting stations, they own motion-picture theaters, they manufacture motion pictures, they are producers-these gentlemen, not with a definite knowledge of the society and its purposes, thought that this great organization could be utilized with that power, that they could move in on the writers and those publishers who had been in the society since 1914.

They said Buck was a dreamer, its president. "That fellow is not a business man." Maybe I am not, sir. They said: "Those fellows are amateurs up there, this fellow Mills, the general manager, Burkan, these directors; we should be getting millions and millions of dollars.'

They started paralleling our radio hook-up, wherein Mr. Whiteman, or Bill Rogers, on a Gulf hour, used a tune to open the show and a tune to close the show. And Bill got $7,500 with his alarm clock before they stopped it. They thought they should get a percentage of all that the advertising company paid to that broadcaster. This society has tried to be decent with the broadcasters of this Nation, it has tried to be decent with the hotel men of this Nation, and it is furnishing them a service that they could not buy.

If you want to know the answer to that, Radio Corporation and the broadcasters have attempted to put together a society, their own society. They could not put together a society like this with $100,000,000, because there is heart and mind and intelligence and sympathy in it, and genuine protection.

These men with their power and their money attempted to put together a society. They went to our members and asked them to write under phony names, to sell their birthright, saying they would set up a program foundation, and they asked these men to be disloyal. When Warner Bros. found they could not exert pressure on those whom I have the honor to lead in the board of directors, they withdrew. They asked us to break a contract that we had.

This American Society has not needed papers to keep its word in its history of 22 years. The society had agreements with broadcasters, with hotel men, and with motion-picture exhibitors. They tried to force those contracts to be broken for the specific purpose that they should step in and get more money and get all the traffic could bear.

We do not conduct this organization in that way, and Warner Bros. did not ruin their agreements with the American Society.

In the meantime, they were attempting to dispose of their business. to broadcasters, and I would not be a bit surprised if right this minute in some room in New York or in Washington or in some city the broadcasters may not be in a huddle to buy the Warner Bros. catalog. That would not surprise me a bit, sir, that that condition exists. Someone intimated that the Warners got out as a device for us.

May I tell you, sir, my attorney submits to me a matter of the record from their own report issued last week from the National Press Building in Washington, James W. Baldwin, managing director [reading] "NAB Reports. Special, February 18, 1936". [Exhibiting.] This is last week. That is how authentic and how recent that is.