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Representative BLOOM. That does not say anything.

Mr. TUTTLE. Does not say anything?

Representative BLOOM. No; he does not say in there that it can not or it will not be done. I will put into the record, Mr. Chairman, Mr. Sarnoff's statement in the New York Times, where he says that will be brought about in the near future, and will put it into the record. Mr. TUTTLE. Mr. Bloom, you will undoubtedly have ample opportunity. I am putting into the record the statement in which Mr. Sarnoff says that he is opposed to that. That is the plain statement. Whether theoretically it could be done is another thing. Theoretically, it could be done.

Representative BLOOM. Theoretically, it would be done.

Mr. TUTTLE. I, personally, should very much regret if the Congress of the United States should be urged to tax the listener-in as a solution for the relationship between the American Society of Composers, Authors, and Publishers and the broadcasters. I deplore such a situation."

Representative BLOOM. Nobody said anything about the Congress doing this thing.

Mr. TUTTLE. I suppose any tax imposed will have to be imposed by Congress.

Representative BLOOM. No; Congress says to put any price on the bulb. They put the price from $8 to 60 cents you are getting

Mr. TUTTLE (interposing). I am not getting anything.

Representative BLOOM. I say you were. But they are getting their money, all they want. And there is no restriction on it.

Mr. TUTTLE. I will read further from this same statement of Mr. Sarnoff [reading]:

I want to go on record very definitely to-day, as I have already done in addresses made to the electrical jobbers in Buffalo last November, and business men in Boston in December, and at a meeting of farmers in Columbia, Mo., in January, in saying to you that it is my firm conviction that that sort of solution to the problem is not necessary, that broadcasting can be made commercially practicable without any means being found for collecting from the consumer, that the greatest advantage of broadcasting lies in its universality, in its ability to reach everybody, everywhere, anywhere, in giving free entertainment, culture, instruction, and all the items which constitute a program, in doing that which no other agency has yet been able to do, and it is up to us in the radio art and industry, with intelligence and technique and broadness of spirit and vision as to the future, to preserve that most delightful element in the whole situation-the freedom of radio.

Now, I am contrasting that attitude, expressed by Mr. Sarnoff in that statement, with the solution suggested by Mr. Mills, that solution being, and coming from him as the spokesman of the society, that a way must and should be found to put a tax upon the listeners-in, and that his society was looking forward to the day when that could be done.

Now, I am reading again from that statement made at the conference of the broadcasters in New York on September 20, 1922:

I think, of course, that the cost of broadcasting should be defrayed by those who receive the entertainment, but this seems impossible of arrangement, because when you once put something into the air, everyone with a set can listen in and you can't stop it, or control it, or charge him for that privilege. At the same time broadcasting is going to have to be put in the hands of skilled entertainers, men who know how to furnish amusement and entertainments, and it is going to cost a lot of money to do and to maintain the service.

You have before you as big a problem as is before the theatrical men of the country-to furnish entertainment and to millions of people. You are going to require the services of skilled purveyors of amusement and professional talent. That, to me, is your big problem, and how to meet the mounting costs that will be associated therewith.

Of course, that is the big problem; that is the problem we have been talking to you about now for the second day-how to find a solution for that problem, keeping radio free, on the one hand, and yet keeping up the quality that we give the public, on the other.

Representative VESTAL. Mr. Tuttle, were you reading from the remarks of Mr. Mills?

Mr. TUTTLE. Yes; what I just read from were the remarks of Mr. Mills at the conference of the broadcasters in New York on September 20, 1922.

Now, reading hastily over the minutes yesterday, I observed that references were made by Mr. Buck to the relationship of radio to music, and the statement was made, I think, sir, in answer to your inquiry, that at times music might be advantaged by broadcasting, but that there were instances on record where the song had been clubbed to death, I think, to use that expression.

Well, of course, there may be instances on record where the assertion can be made that the public have been fed up too much on one thing. I think you might say that the change, as I understand from some of the musical publications, from a certain amount of jazz to a little better class of music is due to the fact that the time has come when human nature has filled up on jazz music, but this must be perfectly obvious that the persons most interested in providing a program that people will listen to over the air is the broadcaster. There is absolutely no use in putting out programs which no one will listen to, because all they have to do is to turn their finger and that station is out. They are the persons who must consult and be in touch with the public, as to what the public wants. Now, under those circumstances, the person who has the most interest in nauseating the public's stomachs with any particular piece of music is the broadcaster himself, and consequently ordinary common sense, it seems to me, teaches that whatever may have been the vicissitude of some particular piece, assuming that there was any such vicissitude at all, can not be regarded as the general result of broadcasting, and I have already put in evidence here, without repeating it, the letters from the music publishers themselves. You will remember particularly that one by Shapiro, Bernstein & Co., which asked for, and not only have they sought the utmost means of broadcasting, but have invited repetition, because it is the process of education of the public ear to the song that popularizes that piece of music.

Representative LANHAM. I think you have misunderstood the true nature of the contention yesterday. The contention was not that one broadcaster would continue to play a piece of music over and over, but that various broadcasters would play the same piece of music, so that you heard it from one station and another continually, not that only one broadcaster would use it, but, as you know, having no connection, and no conference with reference to their programs

Mr. TUTTLE. I see your point, but is this not something of an answer to that. I am sitting in my parlor; I connect with WJZ; I

hear a certain song played and like it. I later get on WEAF, and if I hear the same song, played by WEAF that I heard on WJZ, the same song, I just turn it off and try another station, so that it can not be said that the individual person has to sit as if he were in a theater, sit and listen to the same song being played over and over again by the orchestra. The number of broadcasting stations has not anything to do with it.

Now, in that connection, also, it would be interesting, in as much as the society claims that, as I understand it, that music, or at least some music, is more or less injured by being put on the air, I think the committee should take into consideration the official figures of the royalties made on the records and piano rolls. They surely are in a situation similar to the sheet music, if broadcasting has endangered the situation, and is it not strange, in the first place, that all the large music-record makers seek broadcasting through the persons who put on the program, to a large extent, all these big houses that make records which correspond to sheet music, except they play themselves, instead of having fingers to play them in the house, they seek broadcasting as a means of advertising their music.

Representative BLOOM. Do they not make broadcasting sets, too— I mean radio sets?

Mr. TUTTLE. That I do not know.

Representative BLOOM. Well, the Victor does.

Mr. TUTTLE. Well, you inform me.

Representative BLOOM. And the Brunswick, they make a combination set; they have a victrola on one side and a radio on the other. Mr. TUTTLE. Well, you are giving me some information.

Representative BLOOM. Let us get together and I will give you a lot of information.

Mr. TUTTLE. Perhaps you and I could exchange some information, and I am sure we would do it in good spirit anyhow.

Representative LANHAM. May I ask a question there?

Mr. TUTTLE. May I just quote these figures?

Representative LANHAM. Yes.

Mr. TUTTLE. Then I will invite your question. The royalties paid by these mechanicals in 1921 was $1,413,742.66; in 1922 it was $2,001,252.11; 1923, $2,380,522.11; 1924, $2,053,252.93.

Senator DILL. What is that from?

Mr. TUTTLE. I am reading from the figures submitted to this committee by the mechanical industry.

Representative BLOOM. The last figure is down $300,000.

Mr. TUTTLE. Yes. Do you think that was due to any more broadcasting in 1923 ?

Senator DILL. Were those figures presented to this committee, did you say?

Mr. TUTTLE. Yes.

Senator DILL. On what date?

Mr. TUTTLE. It was presented before the House Committee on Patents, February 3, 1925.

Representative LANHAM. Either you or Mr. Harkness, one of you, Judge Tuttle, gave us a schedule of tentative prices to be inserted on page 2 of this bill.

Mr. TUTTLE. Yes, sir.

Representative LANHAM. Now, the contention was made yesterday that in view of the fact that all music was not of the same quality, that all music should not bear the same price at the same class of stations.

Mr. TUTTLE. Yes, sir.

Representative LANHAM. Now, I would like your answer to that. Would it be based on the proposition that if a piece of music is of better quality and is played more that the return would be greater in that way, or what would be the answer?

Mr. TUTTLE. That is one of my answers. Let me suggest this, abstractly speaking, from the point of view of artists as artists: One piece of music may be more perfect than another; it may comply more with the laws of melody and harmony; but is not the situation this, that after all the public-and we are dealing with the commercial aspect of this matter at the present moment-the public are the judges of what prevails in the competition between muscial compositions, and if the piece is of a quality that appeals to the human ear and the human heart, and it is one which the public, in the first place, keeps alive-I suppose there are some grand old songs which are now nearly 50 years old and which are always welcome from the broadcasting station. There are plenty of such songs which are always welcomed by the public. If we do not play them the public writes in and asks about this and that and the other thing, and it illustrates what I said a moment ago that the broadcasting station is the fellow who has to keep in touch with the public pulse. He hears about it in a number of ways. In the first place, he hears through the volume of letters which are written in by his audience calling and requesting pieces to be played and suggesting a certain character of program. He hears about it from critics, and it is "in the air," if I may say so.

Representative LANHAM. Does not all that indicate that there is a difference in the quality of the music?

Mr. TUTTLE. Certainly.

Representative LANHAM. For instance, take a march from a broadcasting standpoint: Here is a march by Mr. Sousa and a march by Joe Doe. Which would the public rather hear, and should they be classed in the same category as to compensation?

Mr. TUTTLE. Take it from this point of view: If the song is a good one it is going to be continued in the public estimation, and as the result there will be more sheets of music sold, more royalties paid on the mechanicals. There is going to be a wider and better popularization afforded the good song and the popularity will last longer after being brought to the public notice than the poor song, because its very qualities of excellence will aid in carrying forward the value it receives from the advertising.

Representative LANHAM. The frequent use by the broadcaster would make the compensation greater to a composer of a good piece. Mr. TUTTLE. Yes.

Representative LANHAM. So that there would not be any inherent viciousness in assigning the same rate in the bill.

Mr. TUTTLE. Yes; if you just sold a piece of music once and there would be no more sales for it, the thought you have in mind would be a very important one, but when you know that a good song is

seeking the widest means of advertisement, because the writer knows that by popularizing it the number of sales of sheet music and mechanicals will be vastly multiplied, he knows he will get a return out of that, and the poor song that is put on the air dies, because it is a poor song, and it disappears and the good song prevails, and there is no better way of telling what a good song is than by broadcasting it and finding out what the public reaction is to it.

Senator DILL. Mr. Tuttle, since that phase has been brought up by the Congressman, I want to ask you this question, as another means of meeting that objection. Supposing there were an alternative plan. Congressman Vestal has introduced another bill which provides that the author may fix the broadcasting rates on his music. Supposing there were an alternative plan in this legislation, namely, that a piece of music made available for radio may go on the air, as the author determines, he may fix the price but putting it on the music, the price which will be charged for broadcasting, and he may mark it "free" for all use that he sees fit, or he may simply make it available for broadcasting at the rates provided by law, then he would have within his own hands the power to control the price at which that particular piece would be put out by the broadcasting station. What would you think of some such alternative plan? That would not rob the copyright holder of the right to control his music, and would make that price equal to all, would prevent discrimination between stations and would tend to break down a monopoly that is a growing tendency under the present conditions.

Mr. TUTTLE. Senator, I saw Mr. Vestal's bill last night for the first time, and it struck me at once as containing many important constructive contributions to this situation. I can say, as an alternative method, or perhaps as the sole method, if you wish, that it has the advantage of requiring, by the economic situation, the determination of a fair price, because the man who is required to say at the outset what his piece shall be broadcasted for, must bear in mind certain economic considerations. He will first bear in mind this: However much the pretense may be made to the contrary by some writers, they are crazy to have their music broadcasted, and consequently he is going to put a price on there, unless he wants it to go in free, furthermore he is going to put a price which is low enough not to prevent it being broadcasted. He is going to do exactly what we used to do in the university debates, when I was in college. When I was at Columbia and we were debating against Cornell, one side would select the subject, and the other side would select the side on which they wished to debate. Of course, the side that selected the subject was put under some guaranty by the very force of the situation and the result would be that it would be an evenly balanced subject.

If I understand it, the operation of the same human factor is the underlying thought in this bill of Mr. Vestal's. You are going to have the copyright owner and holder himself, not through some deleges, but he, himself, acting on his own judgment, as to the value of his piece, and what he wants to have done with it, and the ambitions he may have for his piece, fix the price which will be fair, and that being on there, then it becomes merely a matter of machinery to assure that that price is not evaded.

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