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The mere fact that so far as the listener is concerned a performance may be in his own home does not make it private as the radio broadcasters contend in support of claims to the right to their use of copyright material. So widespread and numerous is the audience which the artist addresses through the radio that the performance is in the highest degree public.
The fact that a song is broadcast without compensation is also urged as proof that a performance is private. The profit comes, among other forms, in the advertising which the radio companies receive. It could never be argued that the use of a song or any musical number on the radio is for a charitable purpose, even if direct payment is not demanded. These are important issues to the authors and composers who have been struggling to establish their right to share in any benefit accruing from the use of their works by the broadcasting stations. It took many years and much hard labor by writers and composers to obtain the enactment of a copyright law that embodied the elements of fair treatment for their protection before radio was perfected. The purpose of Congress then was to provide that a man or woman should have a reasonable chance to enjoy the profits earned by his or her intellectual capacity. It can not be that a new method of communication will be allowed to impair the fulfillment of that purpose.
[New York Evening Post, April 11, 1925]
Composers, authors, and publishers will rejoice at the decision of the United States Circuit Court of Appeals at Cincinnati, holding that the broadcasting of a copyrighted musical composition is an infringement of the copyright act. The radio came upon us suddenly, reaching a great popularity overnight, and promoters found it profitable to maintain broadcasting stations to advertise their wares. Competition was keen. To make their stations attractive the broadcasters used the best original productions they could find. The result was disastrous to the creators of these compositions and they invoked the protection of the copyright law. The first decisions were against them, but the decision of the court of appeals calls in question the promoters' contention that the radio, having been developed after the copyright law was passed, places the use of these compositions outside of the purview of that law, and declares they "are not by that fact excluded from the statute." Unless the authors can be protected in some way, original productions are bound to suffer materially. Poets and composers must live, and they are as much entitled to the rewards from their labors as hedgers and ditchers.
[Brooklyn Standard Union, October 24, 1925]
THE MODEST MUSIC MAKERS
"Our influence as writers of musical works is negligible. The influence of the broadcasters, with their direct contact with a tremendous audience believing itself under obligations to them, is incomparable." So, in a commendable burst of modesty, writes the American Society of Composers, Authors, and Publishers. Don't you believe it. There is no broadcaster, individual or corporate, with the prestige and influence of Irving Berlin, John Philip Sousa, Walter Damrosch, Harry von Tilzer, George M. Cohan, and the other allied and associated music makers who have combined to protect their copyright privileges. Neatly and handsomely they have won every tilt with the broadcasters before Congress and in the courts.
Of course, they have to keep on fighting. Their present anxiety is to prevent enactment of a proposed bill that would permit Federal authorities to assess the amount of copyright fee to be charged for broadcasting.
It's a bad principle. The less Federal meddling we have in business and artistic circles the better.
Perhaps after the composers win this new campaign they will be less afflicted with overwhelming modesty. The strength of their association and its successful war against piracy of their product are matters to justify considerable pride.
[The Evening Bulletin, Philadelphia, April 11, 1925]
Decision of the United States Circuit Court of Appeals in Cincinnati that copyright songs and music are protected from broadcasting is an important victory for the fraternity of song writers and composers. Unless an appeal to the Supreme Court shall be certified and the ruling reversed, the decision bringing radio "piracy" within the purview of the statute is final.
What arrangements the American Society of Authors, Composers, and Publishers will make with the radio stations pending possible action by Congress can only be conjectured. They have the whole field of classic compositions open to them for free broadcasting-the Bach fugues, the Beethoven symphonies, the delightful Mozart melodies, as well as those of Rossini and Donizetti, and the other masters of the old opera. Then there are the geniuses of comic opera, Offenbach, Von Suppk, Millocker, and their compeers, whose neglected scores are melodic treasure houses.
These could all be depended on to give rare pleasure and entertainment. they will not meet the requirements of the young people, who desire to dance to the latest fox trot and two step, nor satisfy the taste that demands the latest musical craze.
[Philadelphia Record, October 12, 1925]
In an article dealing with the recent action of the Society of Authors, Composers, and Publishers in invoking the law against the broadcasting of copyrighted matter, the radio editor of the Cleveland Plain Dealer refers to it as blow at radio broadcasting in Cleveland which many of those in touch with the situation believe may start a struggle between the society and radio broadcasters that will end only with the elimination of one. All this is quite as ridiculous as the writer's further statements that "enormous" fees are demanded, and that the Society of Authors, Composers, and Publishers is "an organization of popular music publishers." It is much more than that. It is a concerted movement on the part of all creators and producers of songs, novels, plays, etc., which the general public is expected to pay for in the ordinary course and which many broadcasting stations have been using to their own profit, without expense to themselves. It would seem to be no more than fair that an adequate fee should be paid for the use of all this matter, and that is all the society demands.
[The Evening Bulletin, Philadelphia, Monday, October 26, 1925]
RADIO AND THE COPYRIGHT LAW
Four million radio receiving sets in use and a business amounting to half a billion dollars a year in radio equipment is the boast which the industry makes in laying claim to be ranked among the leading commercial activities of the United States. The basis of this business is broadcasting.
Considering the magnitude of this buiness the reluctance of broadcasters to pay for the privilege of public performance of songs or music is remarkable. At first they claimed that broadcasting was private and not public performance, so that they were not liable to the composers or authors under copyright law. But the courts set this aside, and held that broadcasting is public performance for purposes of profit.
When the broadcasters began to perceive that they might reasonably be expected to pay royalties for the use of copyrighted songs or other music, however, they balked at terms. Failing to get Congress to legislate to give them free hand to broadcast copyrighted works, they now are preparing to ask for laws to fix maximum limits which owners of copyright may charge for broadcasting licenses.
Such legislation is indefensible for two good reasons. In the first place, it is price fixing with which Congress has no business in any commercial activity in time of peace. In the second place, such a law would be setting aside the principle of copyright, abandoning the protection which is essential to obtain fair treatment for the author or composer, and opening the way to other infringements.
Broadcasting is not charity. It is business. It sells radio sets. If Congress is tempted to the contrary view, and undertakes to throw open to every broadcaster every copyrighted work at a maximum fixed price, then let it also throw open all patents on radio devices on terms similarly restricted to every manufacturer. Turn about would be nothing more than fair play.
[The Sunday Sun, Baltimore, Monday, October 25, 1925]
MUSIC WRITERS AND USERS
Attempts have been made and are perhaps to be repeated to secure congressional legislation establishing the right of radio stations to broadcast copyrighted music without recompense or on payment of a legally prescribed fee to the composer. The radio public has a personal interest in this issue. For one thing, it is made an involuntary party to the case for the radio stations by the fact that it is quoted as demanding to hear modern, popular songs and other music. But one greatly doubts if the public really expects the composer to go unpaid any more than it asks the singer or instrumentalist to perform without charge.
The right of the composer to be paid for his work is generally undisputed. The thrifty broadcasters themselves admit it, but they assert that the payment for a performance can be made in the form of advertising. This is quite true, as performers of music also admit. Some artists broadcast without charge for the sake of publicity; but they do it because they want to. The complaint of the composers is against being utilized without their own permission or against their will.
It is not as if modern composers monopolized the field of music. The vast body of classical and other music which lies outside the copyright limits provides unlimited opportunities for the boradcasters. Concert artists frequently invade it and give an old song the vogue of a modern production. And if the radio public could tell what it thinks, many complaints would undoubtedly be heard about the failure of the broadcasters to take advantage of the songs and airs about which the radio program makers can learn from any informed lover of music.
The broadcasters who plead poverty as an excuse for the hi-jacking of composers are not altogether ingeneous. They can refuse to buy the right to produce a given piece if they so desire, just as a public library limits its purchases of new books by its budget. And one imagines that the public will heartily content itself with such of the modern music as the broadcasters think worth reproducing at the composer's price. Certainly no one seriously criticizes the author who does not present to the public libraries as many copies of his popular books as would be needed to meet the popular desire.
[Editorial page of the Chicago Herald and Examiner, Thursday, October 29, 1925]
LIGHTS AND DARKS
(By James Weber Linn)
Again a bill is to be introduced in Congress to permit the use by radio broadcasting stations of copyrighted music without paying for the rights. Only this time the ostensible purpose is to be changed a trifle. Congress is to be asked to fix a maximum price which a copyright owner may charge for the use of his work. The broadcasters will have to pay something, should the bill pass, but not much.
When you consider the matter, it is easy to see why any copyright law which assures authors the financial privileges of their work is so hard to get passed. The readers of books are to authors 10,000 to 1; the hearers of music to composers, 100,000 to 1. Naturally the convenience of numbers tells. If one author is obliged by a copyright law, 10,000 citizens are, apparently, disobliged.
Again, in the case of the radio broadcasters, there is a curiously attractive argument against the composer. He asks the law to assure him a profit from the broadcasters; whereas they, great-hearted gentlemen, singing his song, are offering it free to all. Anybody may listen in, without money and without price. On examination a flaw appears, however, in this argument. Anybody may listen in who has bought a radio set, or who permits himself to be made aware of the
corporation which is doing the broadcasting. In other words. the broadcasters are as much after their profit as the composers, only their profit is acquired indirectly.
Yes, this attractive argument is specious. Still, it is attractive. And when the case is based on it, and bulwarked by the fact of the convenience of 15,000,000 as opposed to the profit of 50, it becomes obvious that the Cincinnati decision in favor of composers' rights was an amazing assertion of principle over influence. That decision, amazingly principled as it was, settled the question whether broadcasters had to pay for the use of copyrighted music. But the new bill opens another question whether they must pay what the composers ask, or whether they need pay only what they can get Congress to choose. This question, however, seems to me open and shut. A man who sells calico fixes his own price; so does a man who sells wheat, except in war time; why not a man who sells music?
Of course, Congress may decide on a basis of social utility. The prices of certain commodities are fixed by the Government at certain times, because it seems more to the advantage of more people to fix them than to abide by the principle of fair sale in an open market. But that any one commodity, like music, should be singled out for discrimination in this fashion seems to me hopelessly unjust. There are fewer millionaires now among the composers than among the broadcasters. Until the balance tips heavily the other way, I favor abiding by the ordinary principles of justice.
And besides, the music on which copyright has expired seems to one so much better than the copyrighted music 1 know that I think civilization or at least our national life is improved by keeping copyrighted music off the radio as much as possible.
[The Indianapolis Star, November 4, 1925]
MUSICIANS AND RADIO
There was originally a singular reluctance on the part of lawmakers to give the writers of books a copyright that would protect them and allow them a profit on the sales of their publications. An idea seemed to prevail that anything printed belonged to the public as a free gift and that the author should have no further co" of h. work after the manuscript passes from his hands. When
a copyright law s finally secured from Congress the protection extended to but a few years, after which the work was public property and anyone who pleased could republish it and ake the profits. Repeatedly authors were obliged to go before Congress before they could secure what they considered a rightful interest in writings they had produced.
It was much longer before Congress was willing to protect the books of foreign authors, and while some American publishers made certain returns on the sale of British books they had taken the liberty to publish in this country, others failed to do so and for years there was much shamless pirating of foreign books, with entire disregard of the authors.
Next came the attempt of musicians, from operatic composers to song writers, to copyright their wares. This at the time had for its purpose the same privilege accorded to writers and book publishers, that of preventing trespass upon their rights to royalties and to exclusive publication. Such protection at that time often meant in the sale of copies sufficient compensation to the author. about that time mechanical devices, such as the phonograph, the player piano, etc., began to interfere with the sale of sheet music and it became necessary to seek for payment of royalties from these devices. About the same time motion pictures appeared and it was realized that royalties must be collected from public performances of music in amusement establishments.
The American Society of Composers, Authors and Publishers, which includes Irving Berlin, Walter Damrosch, George M. Cohan, and 500 other recognized writers of musical works, was organized for the purpose of looking after their common rights. After eight years of continuous effort, persistent public education and much litigation by the society in behalf of its members, with the courts uniformly sustaining them, the commercial amusements interests yielded to the right and the law, and to-day it is the exception when infringements occur in such establishments through unlicensed public performance of copyrighted music.
Then came radio, and trouble was renewed. Some broadcasters contended that they were not included in the restrictions of the copyright law, since radio was not in existence when the copyright law was passed; also that radio was experi
mental and that they could not afford to add to their expenses by paying for the use of copyrighted music. Besides, it was urged, they popularized the music and increased its sales. A Cincinnati court upheld their arguments, but the United States Court of Appeals reversed these decisions and ruled that radio comes under the provisions of the copyright law. Since that action was taken last April some broadcasting stations have observed the ruling and some have
What is sought now is a law that will specifically place radio under the same rule that controls moving pictures and a bill to this effect is to be brought before Congress. The musicians are aware of opposition in that body through the influence of radio and other mechanical interests, but they hope for a backing of public opinion.
[The Indianapolis News, Wednesday, October 14, 1925]
The refusal of the United States Supreme Court to review a decision of the United States Circuit Court of Appeals that the radio broadcasting of a musical composition is a public performance for profit within provisions of the copyright law, is likely to take its place among the important steps in the development of a better national attitude toward the creators of copyrightable material. The principle that a musical composition played for profit should return something more to the owner of the copyright than the mere purchase price of the music has already been established, and the Federal courts have so far acted in the spirit of this precedent in their attitude toward the broadcasting stations.
The United States has gone a long way in the century since it was a common practice to republish the works of foreign authors in this country without the formality of paying them for their works. There is now a considerable movement to provide for the copyright of the work of authors and artists before it is offered for publication. This is of doubtful wisdom because of the probability that the Library of Congress would become laden with a vast volume of manuscript, most of which would have no value to anyone, and some of which might be used as the basis of infringement suits inspired by dishonest motives. The Authors' League of America, and the guilds of free lance artists associated with it, have taken the initiative in protecting creative artists from the avarice of unscrupulous publishers and producers, and their organization is so powerful that it may now be said that artists have a firm grip on the situation.
There is, of course, a limit to the ability of creative artists, regardless of their strength, to control the exploitation of their work. Nearly all of them reach the public through the agency of a publisher or producer, whose business in marketing salable wares. With this agency disposed to favor artists, as is now the case in many instances, the position of the artists is greatly strengthened, but they can not control the market. They can only compel the public to pay for the pleasure it derives from their work, and this they are proceeding to do. The movement is likely to result in greater incentives to creative effort and in greater rewards for success in the production of copyrightable material. It should result in time in a revised public attitude toward all primary artists, and in a brighter prospect for the cause of American art.
[Cleveland Topics, formerly Cleveland Town Topics]
Composers demand that they be paid fees for every radio broadcasting of their music and something of a wail goes up at the injustice which this works on radio audiences. This latter takes the form of curtailed broadcasting, the broadcasting stations being generally unable to pay actual money for the music which they intend later to give away at an already great cost to themselves for artists, overhead, and mechanical operation of their plants.
The only people who can reasonably be found fault with in this connection are radio listeners who have come to expect, in addition to something for nothing, everything for nothing. As a matter of fact, there are only two reasons why radio has so far been free in this country. One is the inability of the people who donate radio programs to charge for them and the other is that radio has had a