In which the owner now has any right, title, interest or control whatsoever, in whole or in part; or

Which hereafter, during the term hereof, may be written, composed, acquired, owned, published or copyrighted by the owner, alone, jointly, or in collaboration with others; or

In which the owner may hereafter, during the term thereof, have any right, title, interest or control, whatsoever, in whole or in part.

The exclusive right of public performance in every such musical work shall be deemed assigned to the society by this instrument and shall vest in and be the absolute property of the society for the term hereof, immediately upon the work being written, composed, acquired, owned, published or copyrighted. The rights hereby assigned shall include:

(a) All the rights and remedies for enforcing the copyright or copyrights of such musical works, whether such copyrights are in the name of the owner and/or others, as well as the right to sue under such copyrights in the name of the society and/or in the name of the owner and/or others, to the end that the society may effectually protect and be assured of all the rights hereby assigned.

(b) The exclusive right of public performance of the separate numbers, songs, fragments or arrangements, melodies or selections forming part or parts of musical plays and dramatic-musical compositions, the owner reserving and excepting from this assignment the right of performance of musical plays and dramaticomusical compositions in their entirety, or any part of such plays or dramaticomusical compositions on the legitimate stage.

(c) The right of public performance by means of radio broadcasting, telephoning, telegraphing, or any method of transmitting sound: Provided, however, That the owner shall have the right, in good faith, by written notice to the society, to restrict, limit or prohibit the public performance by radio broadcasting of works the copyright of which is vested in the owner, and the society agrees that all licenses by it issued shall contain a provision reserving its right to restrict or limit, or to prohibit entirely, the performance by broadcasting or any works in its repertory: And provided further, That if the owner notify the society in writing to restrict, limit, or prohibit the public performance of such copyrighted work, the owner shall not, by the service of such notice, become repossessed of any of the rights transferred to the society by this assignment.

(d) On and after January 1, 1927, the owner shall have the right to withdraw from the control of the society the broadcasting rights hereby conveyed, upon giving the society one year's written notice to that effect.

2. The term of this agreement shall be for a period of five years from the 1st day of January, 1926, and expiring on the 31st day of December, 1930.

3. The society agrees, during the term hereof, in good faith to use its best endeavor to promote and carry out the objects for which it was organized, and to hold and apply all royalties, profits, benefits, and advantages arising from the exploitation of the rights assigned to it by its several members, including the owner, to the uses and purposes as provided in its articles of association (to which reference is hereby made) as now in force or as hereafter amended.

4. The owner hereby irrevocably, during the term hereof, authorizes, empowers, and vests in the society, exclusively, the right to enforce and protect such rights of public performance under any and all copyrights, whether standing in the name of the owner and/or others, in any and all works copyrighted by the owner, and/or by others; to prevent the infringement thereof, to litigate, collect, and receipt for damages arising from infringement, and in its sole judgment to join the owner and/or others in whose names the copyright may stand, as parties plaintiff or defendants in suits or proceedings; to bring suit in the name of the owner and/or in the name of the society, or others in whose name the copyright may stand, or otherwise, and to release, compromise, or refer to arbitration any actions in the same manner to the same extent and to all intents and purposes as the owner might or could do, had this instrument not been made.

5. The owner hereby makes, constitutes, and appoints the society, or its successor, the owner's true and lawful attorney, irrevocably during the term hereof, and in the name of the society or its successor, or in the name of the owner, or otherwise, to do all acts, take all proceedings, execute, acknowledge, and deliver any and all instruments, papers, documents, process, and pleadings that may be necessary, proper, or expedient to restrain and recover damages in respect to or for the infringement or other violation of the rights of public performance in such works, and to discontinue, compromise, or refer to arbitration any such proceedings or actions, or to make any other disposition of the differences in relation to the premises.

6. The owner agrees from time to time to execute, acknowledge, and deliver to the society such assurances, powers of attorney, or other authorizations or instruments as the society may deem necessary or expedient to enable it to exercise, enjoy, and enforce, in its own name or otherwise, all rights and remedies aforesaid.

7. It is mutually agreed that during the term hereof the board of directors of the society shall be composed of an equal number of writers and publishers, respectively, and that the royalties distributed by the board of directors shall be divided into two equal sums, and one each of such sums credited, respectively, to and for division among (a) the writer members and (b) the publisher members, in accordance with the system of distribution and classification as determined by the classification committee of each group, in accordance with the Articles of Association as in effect on January 1, 1925, except that the classification of the owner within his class may be changed.

8. Public performance defined.-The phrase "public performance" shall be construed to mean vocal and instrumental renditions and representations in any manner or by any method whatsoever, including transmissions by radio broadcasting stations, and renditions and representations for transmission by radio broadcasting stations, except on the legitimate stage.

9. Musical works defined. The phrase "musical works" shall be construed to mean musical compositions and dramatico-musical compositions, the words and music thereof, and the respective arrangements thereof, and the selections therefrom.

10. The powers, rights, authorities, and privileges by this instrument vested in the society are deemed to include the world: Provided, however, That such grant of rights for foreign countries shall be subject to any agreements now in effect, a list of which are noted on page 4 hereof. Signed, sealed, and delivered on this

By

day of

192-.

AMERICAN SOCIETY OF COMPOSERS, AUTHORS, AND PUBLISHERS,

-, Secretary.

It is to be noted that this agreement runs for periods of five years. The society takes from its members only a very limited license to represent them for a very limited period, and in respect to broadcasting rights the contract between the society and its members provides and this is the form entered into on January 1, 1926that on and after January 1, 1927, the owner- -the owner is an owner all the time" on and after January 1, 1927, the owner shall have the right to withdraw from the control of the society the broadcasting right hereby conveyed upon giving the society one year's notice in writing."

Inasmuch as we have been so variously and continuously accused of exercising a terrible monopoly, I would like you to know just exactly the circumstances under which the society operates. It has no secrets, either from the public or from its members. It was organized in 1914, as you have so often been told, by the beloved late Victor Herbert and eight other composers, whose works were being habitually, continually, deliberately, and intentionally pirated, infringed, and stolen by commercial interests that then could not be reached by the individual composer. In order that that statement may not be misunderstood, in that connection let me say that it does not refer to the talking-machine interests.

All over the United States the rights of these men, producers of music, owners of copyrights, under the law were being continually, deliberately, and habitually infringed and pirated.

Now, it is well enough to say that the owner under the law had a right of redress, but as a piratical matter it was impossible for him to exercise that right.

It is simple to see how difficult it would be for a man residing in New York City or residing in San Francisco or down in Texas, whence I hail and never miss an opportunity to say so and boast of it-how impossible it would be for such a man to protect his works against infringement and unlawful and unauthorized performance in the various cities of the United States.

You must remember that those performances are fugitive; they occur here and there and elsewhere constantly and continually, and no individual could possibly be everywhere or set up a machinery that would advise him what was happening in respect to the unauthorized public performance of his works all over the United States. So, it being absolutely impossible for these men to protect themselves against this unauthorized use of their works at distant points, they organized a machine to do it for them, the American Society of Composers, Authors, and Publishers which came into existence as a sort of a policeman to catch the thieves, and it has been catching them and it will continue to catch them, and every time their aquisitive fingers reach out to illegally appropriate the property of these men the society will rap them on the knuckles with the ferrule of the law as long as the law is there. So let us remember that. We will not stop. We are an honorable, lawful, legal organization, accomplishing a proper and commendable purpose, and have been so declared by the courts. It is not my words that makes it so.

It is not germane to the consideration of proposed copyright legislation whether or not the society is a lawful or an unlawful combination or monopoly in restraint of trade or anything else.

Mr. Tuttle told you when asked the question that in his opinion the society was an unlawful monopoly but nothing could be done about it. What mysterious power is it that inheres in this little society of songwriters that the Government is afraid of, if it is doing something unlawful and nothing can be done about it? It is absurd that a statement of that sort should be made to intelligent men. But, even though it has nothing to do with these copyright hearings, our good name has been attacked here. We have been accused by inference and innuendo of almost everything from mayhem to any sort of unlawful act you want to name.

According to our opponents, we have put widows out of business; we have driven broadcasting stations out of business, and their statements along these lines are absolutely and unqualifiedly untruthful and I will prove it. If you listen to the opponents, we have done everything that we should not have done.

Now, they are fond of quoting Mills. I heard the name Mills here last week until I got sick of it. Mills, Mills, Mills. Mills is an employee of the society. Yes, say these gentlemen, in the same sense that Judge Gary is an employee of the Steel Corporation. I only hope I can be as useful to the society as Judge Gary has been to the Steel Corporation.

Representative HAMMER. You do not hope to do as much against the interest of the public, do you? At least as much as he is sometimes charged with doing.

Mr. MILLS. That is a debatable question, Mr. Hammer. I know the minute I cease to do a good job they will fire me. I may be a "czar" to the music business and bow to all of these very fancy

titles with which they dignify me, but in my own inner self I am not conscious of it.

In September, 1902, this broadcasting activity came upon the scene as a popular means of entertainment. There were few stations then, but the few there were were leaping into unprecedented prosperity and popularity and creating for those who operated them a tremendous volume of good will.

And when you talk about good will being an intangible asset, I am reminded of the fact that the Dodge Brothers Motor Co. sold out a couple of years ago and got more for their good will than for all their assets, and if you wanted to buy the trade name of the Victor Talking Machine Co. I doubt if it could be purchased on the market for $20,000,000. If their other assets were evaporated, and dissipated entirely, I doubt if $20,000,000 would buy the good will, and if it were for sale I would like to go to Wall Street and raise money and buy it for that price because it is worth it. Good will is a tangible, valuable asset. There is no greater asset connected with modern business. We noticed that almost at once when radio began to get so tremendously popular, back there in the fall of 1922 and the spring of 1923, a tremendous decline in the sale of sheet music and phonograph records. We had three bankrupts among important publishers because-and I do not hesitate to say this a great many of the publishers are only about four jumps ahead of the sheriff all the time, and they do not have the assets to carry them over a long period of stringency. Reaching out to ascertain the cause for this condition. it could be attributed then to nothing but radio.

Now, among our opponents at various stages of these endless copyright hearings will be numbered the phonograph people, but they themselves will have to admit-and they can not deny it, because radio in a way has been their greatest enemy and temporarily their greatest friend-that because of the competition and opposition of radio they were forced to go out and find new means of recording and new types of machines that would present an improved reproduction of music. And today we have the orthoponic victrola, a tremendously improved machine, and the Brunswick panatrope, a greatly improved device, and a new system of electrical recording of phonograph records.

Tremendous advertising put these new devices effectively on the market in what I am convinced is a futile effort to stem the tide of radio opposition which ultimately must overwhelm that insdutry.

I shall make no extended argument to support that premise. It is just as unavoidable as it was when the phonograph came along and became so perfected that it presented a creditable reproduction of music and it became possible for the Eskimo to listen to caruso by light of the aurora borealis, and by everybody everywhere almost as well as by those favored few who could sit in the Metropolitan Opera House and listen to it. It was inevitable that the incentive for manual music, where it was difficult of accomplishment and pedagogues were scarce, or where there were no teachers or where were no facilities-it was inevitable that this new thing should supplant, to a great degree, the manual music and the products that are sold to those who devote themselves to that sort of music.

Now, it is human nature to move along the line of least resistance. If you can have music on a phonograph there is just that much less

inducement to play it for yourselves. We take our exercise by proxy these days. We go to a ball game and watch the players sweat while we sit in the grand stand and have a splendid time. But that is our exercise. And so it was with music. We began to take it by proxy.

The copyright law did not provide that any compensation should be had by the creator of a musical work because of its reproduction upon a phonograph record. When the copyright owners endeavored to extend the law to cover that sort of reproduction on the theory that it was a publication of the music, the court held that it was not a reproduction of the music; it was the part of a machine, a mechanical device.

So the copyright owners themselves organized and came down here to Washington and asked for a law that would allow them to collect royalties on phonograph records. Some hearings were held, and this little group so inadequately financed, argued that those who created this music should be paid for it by those who manufactured devices that served to mechanically reproduce it. That was done in the middle of what was then a very unfavorable political situation in Washington toward men who were seeking that sort of reward, because, be it remembered, those were in the palmy days of Mark Hanna, when the Manufacturers' Association had a lobby here in Washington that nothing could approach. They passed a law in the last minutes of the session; they turned the clock back; it was not discussed on the floor but was reported out by the committee that I believe in my heart was dominated by this lobby, saying, "Yes; we will give them royalties; we will give them not to exceed 2 cents per device manufactured serving to mechanically reproduce work; and we will go further; we will protect these manufacturers against these avaricious composers, authors, and publishers; we will provide that although the law says in its preamble he shall have an exclusive right, we shall provide this in relation to the mechanical right, that if the owner of the copyright himself reproduces his work, licenses another to reproduce it, or knowingly acquiesces in its reproduction, he must file notice with the register of copyrights that he has done so." And thereupon anyone can reproduce it, regardless of his financial standing, regardless of his ability to produce a creditable reproduction of the work, regardless absolutely and entirely of the rights, the honest, moral, and legal rights of the creator of the product.

Our opponents point to that as a precedent-I should say our friendly enemies point to that as a precedent, and ask you to perpetuate that sort of an injustice, and they say, as I shall later show you, quoting their own record as they are so fond of quoting ours, that for 17 years this has worked to the satisfaction of everybody. Now, it has not worked for 17 years or for 17 minutes to the satisfaction of anybody. And it is not going to work to the satisfaction of anybody. I want to say that we are going to be here just as long as there is breath in our bodies asking you to give us that which was unjustly taken away from us in 1909.

Remember this always when you think about this subject: Music is the keystone of the arch upon which the entire structure of public amusement rests. Without music there is no dance hall; without music the cabaret is unthinkable; without music the tea dansante