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gress 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, 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 shameless pirating of foreign books, with entire disregard of the authors.
Next came the attempt of musicians—from operatic composers to song writersto 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. But 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 collecte 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 performances 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 existeece when the copyright law was passed; also that radio was experimental 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 not.
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.
(St. Joseph Herald-Press, Tuesday, November 3, 1925, St. Joseph, Mich.)
COPYRIGHT AND THE Radio
The American Society of Composers, Authors, and Publishers is appealing for popular support in its effort to protect the rights of creative artists whose works are broadcast by radio. At the last session of Congress a bill was introduced which, if enacted, would have granted the owners of radio stations the free and unrestricted use of copyrighted musical compositions. This particular bill died in committee, but there is reason to believe that another attempt to accomplish a similar purpose will be made when Congress convenes in December. Naturally, the men who write music and those who publish it are again forming their lines of defense.
From all facts available, there seems to be little doubt that the composers, authors, and publishers have every argument of justice and fair play on their side. They are simply asking that they be protected from broadcasting station proprietors who try to use their works without paying the compensation to which they are entitled according to the very principle of the copyright law.
The man who publishes a composer's songs in sheet music form is required to pay for the privilege. The man who reproduces such music on phonograph records or playpiano rolls must likewise compensate the writer. Is there any substantisl reason why the radio broadcaster should be exempt from this obligation?
It is true, of course, that the broadcaster's position is slightly different from that of the publisher or the phonograph company. The latter two receive direct payment for the music, which they dispense, while the radio station owner gets no immediate reward. Yet it is ridiculous to assume, for one minute, that the broadcaster's efforts are purely philanthropic. Most of the large stations are operated either by or in conjunction with concerns which manufacture radio receiving apparatus. It stands to reason that the public would not be buying radio sets and accessories if there were no broadcasting stations to furnish programs, and that by putting plenty of radio entertainment“ on the air” the manufacturers are increasing their own business. It has been estimated that the total amount of money spent on receiving equipment by the American people this year will come very close to the $500,000,000 mark!
Many stations, admittedly, are maintained by people who are not engaged in the manufacture or sale of radio supplies. While the value of radio as an advertising medium is open to considerable doubt, there are nevertheless plenty of promoters who seem to think it is effective. At any rate, we may be sure that the man who spends huge sums of money to equip and operate a powerful broadcasting plant is not doing so for sheer love of the game. His reward may be indirect, but he has his reward just the same. As the American Society of Composers, Authors, and Publishers so aptly put it: “He broadcasts because it is profitable to do so, and when it ceases to be profitable he will discontinue broadcasting
We do not begrudge any broadcaster the right to make whatever profit he can as a result of his effort and investment. He performs a valuable service to the millions of radio fans who derive keen, wholesome enjoyment night after night in their homes, and he is justly entitled to the reward he gets. By the same token, he should see that the people who make the music which he broadcasts the creative artists of America-are likewise entitled to their share. And if he is unwilling to pay them their price he has no right to use their wares. Business is business, but it must be fair and square.
(Waterloo Evening Courier, Friday, October 30, 1925)
COPYRIGHT AND RADIO
Last spring the United States Circuit Court of Appeals for the fifth circuit handed down an important decision on the broadcasting of copyrighted music. In effect the court held that such performance of work was "public,” and that therefore owners of radio stations might not broadcast compositions without complying with the provisions of the national copyright act.
The fact that a song is broadcast without direct compensation or charge does not alter the essential commercial nature of the project, which the court held brings it under the phrase of the law, “for profit.' In other words, if the profit is not direct, in actual cash paid for hearing a program, it is surely indirect, in advertising, sales of radio equipment, and other benefits.
In accordance with this decision of the court, broadcasting companies must pay royalties for the privilege of using music protected by the Federal copyright laws. Although the radio had not been developed when the act of 1909 was passed, the court wisely interpreted the law according to its spirit rather than its letter.
But the composers and authors are not yet safe; the fruits of their toil are not yet delivered to them beyond possibility of loss.
At the last session of Congress a bill was introduced to amend the existing copyright law so as to make available to broadcasters free and unrestricted use of copyrighted works. This bill died in committee, but there is reason to believe that another similar to it will be brought up at the coming session, or perhaps a compromise measure fixing a maximum price which copyright owners may charge for the use of their works.
The welfare of creative art in America demands that neither proposed bil shall become law. In the words of the constitution, Congress is empowered “To promote the progress of science and useful arts, by securing for a limited time to authors and inventors the exclusive right to their respective writings and discoveries. In harmony with this delegation of authority our copyright laws have been enacted. Those who bring into existence literary, dramatic, or musical works receive “for a limited time” the rewards of their talents and industry. This is no more than just. The man who works with his brain is as much entitled of payment for his labor as the man who works with his hands, and should be as free to obtain what the market will bring, without price fixing or other interference.
To the plaint of the broadcasters that the payment of royalties would hurt their programs
it may be answered that there is a world of music on which the copyright has expired and which would not cost them a cent. It might be added that if the royalties charged by authors and composers on new music are actually high, it is because competition in the market (that is, among the broadcasters) justifies them. Copyrighted music is sold under exactly the same conditions as patented radio apparatus.
(Crookston Daily Times, Saturday, October 24, 1925)
THE BROADCASTER PAYS
It was regarded by many outsiders as a joke when the song writers and publishers organized to protect their music from spoilation by radio broadcasters. Now they are making good.
Recently, the Society of Authors, Composers, and Publishers served notice on broadcasting stations that it would insist on payment for use of its music according to a set schedule. A typical schedule requires that a certain station pay a fee of $1,000 a year for broadcasting copyright music from its home studio, $25 an hour for broadcasting "remote control” concerts and an equal charge per hour for“courtesy programs” for which credit is given to business firms by way of advertisement.
This costs money. It may add $100 a day to the expense of operation, broadcasters say. But they are obliged to accept it, unless they are willing to cut out of their programs all copyright music, and that is just about impossible.
It is coming to be the usual thing for professional performers to charge for their services. Altogether, broadcasting grows highly expensive. Thus the old question of who is to pay for it becomes more vital then ever. The present tendency is to let advertisers pay. But that may lower the quality of programs. Eventually some way may be found to make the listener pay.
(Redwood City Tribune, Redwood City, Calif., Tuesday, October 27, 1925)
We were dining and dancing in one of San Francisco's hotels the other night when the orchestra leader, a young college chap who knew one of our party, came over to our table for a chat.
He asked if we had noticed that the orchestra was repeating certain numbers over and over. He said: “The reason for this is because we are only playing music which is not copyrighted, as we are broadcasting over the radio and a royalty is charged for copyrighted numbers. This limits us to-night, and that is why we are repeating some of the pieces at intervals.”
And so we were "face to face" with the problem which has been the subject of much legal controversy throughout the land, and which finally reached a temporary settlement in the United States Circuit Court of Appeals. This problem is: Shall the creator of musical works be obliged to permit the product of his brain to be broadcast, perhaps to the detriment of the work and the destruction of his other markets for it, without just recompense?
The American Society of Composers, Authors, and Publishers is fighting the efforts of broadcasters to infringe upon what it believes are the rights of its members.
There are well-known names among the members of the society. Some of them are: Irving Berlin, Earl Carroll, George M. Cohan, Con Conrad, Walter Damrosch, Mischa Elman, Fred Fisher, Leopold Godowsky, Percy Grainger, Art Hickman, Elsie Janis, Al Jolson, Fritz Kreisler, Chauncey Olcott, Sergei Rachmaninoff, Ted Shapiro, Albert Von Tilzer and Al Wilson.
Als persons, firms, and corporations operating hotels, restaurants, cabarets, dance halls, theaters, radio broadcasting stations, and all classes of establishments in which music is publicly performed for profit may not use copyrighted musical compositions belonging to members of the American Society of Composers, Authors, and Publishers without a license issued by the society. The infringer is subject to a penalty of not less than $250, and not more than $5,000 for each infringement.
This is fair. The primary function of the society was to protect the rights of its members in regard to the public performance of their works. After eight years of continuous effort and much litigation by the society in behalf of its members, the courts of the nation sustaining them from coast to coast, the commercial amusement interest yielded to the right and the law.
Then came a new problem-radio. With unprecedented rapidity this form of amusement became almost universally popular. About 4,000,000 sets are now in use, and the radio audience numbers some 12,000,000 persons.
The writers of musical works, already having seen their product the basis for the creation of the gigantic phonograph industry; the backbone of the motionpicture theater, dance hall, and cabaret forms of entertainment, now witnessed their product becoming the mainstay of a tremendous new amusement structure which in its very building threatened their earning capacity by satisfying through this new means the natural human appetite for music.
Then came the question: "Does broadcasting constitute public performance?'' The society called a conference of the broadcasters. The outcome was a statement by the broadcasters to the effect that (1) their entire business was in an experimental stage, (2) that they could not afford to increase the burden of their already great expense by paying anything at all for the right to use copyrighted music in their performances, and (3) that they should not be required to pay fees for the music in as much as by using it in their programs they “popularized” it, thus rendered a reciprocal service to its creators.
The society then went to the courts, where its position was sustained; broadcasting was held to be public performance” and for “purposes of profit.”
It is well to remember that* radio broadcasting is a performance for profit, even though fees are not collected from the listeners, and that, though broadcasting was unknown when the copyright law was passed in 1909, yet the obvious intent of that law was to include such a device as radio. It makes little difference whether the audience is under one roof or under many.
STATEMENT OF MR. OTTO A. SCHLOBOHM, WASHINGTON
ATTORNEY FOR THE SHUBERT THEATRICAL INTERESTS
Mr. SCHLOBOHM. Gentlemen of the committee, my name is Otto A. Schlobohm. I am Washington attorney for the Shubert theatrical interests of New York City. I have been requested by Mr. William Klein, the general counsel for that company and counsel for other musical comedy producers, to submit a statement covering the views of the musical comedy producers on the Dill-Vestal bill to amend the copyright law, in respect to the use by broadcasters of copyrighted music. Mr. Klein is unable to be here and has asked me to submit this statement, so that it may be before you gentlemen when you consider the record.
Briefly, the question of the radioing of musical compositions has heretofore been considered as a matter between the authors and composers on the one hand and the broadcasting organizations on the other, with the general public between the two. There is a third interest which we do not believe has heretofore been considered. This third party primarily interested is the producer, whose genius and capital makes possible the public presentation of musical comedies. The producer believes that his productive genius should receive protection at least equal to that afforded to the author and composer
Should this Congress determine that the author and composer should be given by statute the right to make an arrangement for the radio broadcasting for profit of their work used in musical comedies, in the production of which he has spent thousands and sometimes hundreds of thousands of dollars, the producer believes that right should also be extended to him. We are not here as proponents of this bill, but should this committee consider the Dill-Vestal bill favorably we wish you would consider the rights of the producer.
We believe that his productive and creative genius should receive protection.
Representative HAMMER. Mr. Chairman, there has been a lot of material offered here, and no action has been taken as to whether it should go in the record or not. There were 40 pages offered here a while ago. It would cost hundreds and hundreds of dollars to print all of this matter. I have no objection to putting them in, but there must be a limit somewhere.
The CHAIRMAN. I think you are quite right.
Representative HAMMER. Furthermore, it is not guaranteed, when they offer it, that it will be published. I think the committee should take that into consideration. I do not see the necessity of publishing all of that material. There were 40 pages offered a little while ago, as I said, which would amount to almost 40 pages of print.
Representative Bloom. There has never been any objection to anything going into the record. If the American Society thinks it can give the committee any information that will be beneficial to their case, I think they should have that privilege. There has been no objection on our part to the other side putting in anything in the record that they wanted to. Mr. Mills was kind enough to say he left out a lot of it because it is already in the record. At this time I do not think there should be any objection to anything that either side thinks will help them in their case before the committee.
The CHAIRMAN. Do you not think a good deal of this newspaper editorial matter is unnecessary?
Representative Bloom. I think the editorials are very important at this time, Mr. Chairman. They are editorials on this propaganda that seem to be the principal bone of contention, where people have been told to write in about this particular legislation. I think these editorials that have been submitted are not alone instructive to the committee, but to the entire membership of the Senate and the House.
Representative PERKINS. Are they not editorials on propaganda, rather than on the bill?
Representative Bloom. They are editorials on the propaganda, but the propaganda has gone into this record. It is an answer to the propaganda that has gone in.
The CHAIRMAN. Suppose we leave it to an executive meeting of the committee.
Representative HAMMER. I did not understand everybody was going to be given the right to put anything in the record they please. If that is true, someone may dump in 5,000 pages. We can not let down the bars and guarantee that they may put anything in they want to. Suppose Senator Dill comes along and says he has thousand pages he wants to put in the record. Of course, he will not have that amount of stuff, but he would have that right, if we are going to let the bars down in this way.
As far as those editorials are concerned, I have read some of them. One of the New York papers published an editorial the other day on one side of the question, and then in less than 10 days the same paper published an editorial the other way. We can not always tell by the editorials from 40 different newspapers how important they
Representative Bloom. There has been no objection to anything that has been offered for the record, and I do not think any objection ought to be raised at this time.