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and music; you have thousands of theatres wherein to perform ordinary musical shows. That is the answer, is it not?

There is always a great difference in the royalties paid for a grand opera and an ordinary musical show. Mr. Puccini received from the Metropolitan $600 a night for one performance of one of his operas. The authors of a musical play do not get $600 a night. Mr. Puccini received that amount because he had but few performances of his operas during the operatic season. He was fortunate if 12 performances of all his operas put together were given in the season. The musical comedy author's show goes on every night. Therefore, you can not put them upon the same plane. The bill is a makeshift. It is a half-baked, ill-considered legislation.

I could spend hours and hours on it and take up feature after feature of the bill. There is another unjust discrimination that I want to particularly call your attention to. Broadcasters are required to keep a log of the number of times the songs are sung or played at the station. Suppose they do not keep the log. Suppose they furnish inaccurate or misleading statements, or suppose they do not give any statments, what redress has the composer under the bill? Under existing law infringement is not only a crime, but the infringer is subjected to very severe damages. The only punishment by the bill is limited to the payment of three times the royalty fixed by the statute.

The record is very barren of information from the broadcasters' side. They spent so much time attacking us that they forgot to furnish the committee with the necessary and useful information to enable it to act intelligently. In the first place, the record ought to show that there are but 89 available wave lengths in the United States; that there are but 536 licensed stations in the United States. The Department of Commerce is not issuing any more licenses and every effort is being made now to reduce the number of stations. The purpose of the radio control bill is to reduce the number of stations to a proper amount.

The broadcasters are trying to have the law enacted so as to provide that the term of the licenses shall be for five years, with the privilege of renewing it indefinitely. So the little group that has control now wants to retain their control for a fixed term. Now the Government issues licenses for but three months, revocable at the pleasure of the Department of Commerce. By the radio control bill they will secure a five-year license with the right to renew indefinitely. The 536 stations are divided as follows:

Stores dealing in radio supplies.

Schools and colleges-

Churches---

Publishers, including newspapers and magazines__.

Manufacturers (of which 20 are manufacturers of radio apparatus).
States, counties, and municipalities_

Banks, insurance companies, and concerns of that character.

Hotels---

Stations

124

94

43

35

30

15

15

12

11

22

Societies

Scattering.

There are on file now 425 applications for broadcasting stations, none of which has been granted. A great many of them represent universities, churches, schools, and colleges-institutions really work

ing in the public interest without any aim to profit. They have been denied and are now being denied the right to the use of the ether because the ether has been monopolized by commercial stations selling time to advertisers.

I do not mean by this to charge any department or bureau with favoritism, but nevertheless that is the fact. Commercial stations are monopolizing the air to the exclusion of schools, universities, and colleges which can render and do render and are dedicated to render pure public service and in the interests of the public.

Receiving sets in operation in the United States total 5,000,000. Senator DILL. That is an estimate?

Mr. BURKAN. Yes; that is an estimate. There are only three stations with a power of 50,000 watts and over, and those stations are WJZ, at Boundbrook, N. J., operated by the Radio Corporation of America; WGY, at Schenectady, operated by the General Electric Co., and KDKÁ, at East Pittsburgh, operated by the Westinghouse Co.

The CHAIRMAN. All that information, of course, is available and the committee will have the opportunity to obtain information of that character which is in the record of other hearings. I do not know that it is necessary to go into a repetition of such matters.

Mr. BURKAN. But this information is scattered in seven or eight or nine different publications, and you would have to read through many pages; you gentlemen are preoccupied with so many matters that unless it is presented to you in this way it will require a great deal of time for you to get the information.

The CHAIRMAN. Of course, we could go on ad infinitum and continue these hearings for a great while, but it seems to me we are simply repeating ideas here when the committee wants to make progress and come to some termination of the hearing.

Mr. BURKAN. If that is the case, then I would like to make a suggestion.

The CHAIRMAN. You can submit to the committee any brief or statement you wish and undoubtedly the committee will be glad to receive it. I do not want to cut you off now, and I am simply making that as a suggestion.

Mr. BURKAN. In view of your suggestion, Mr. Chairman, if I am to get that permission, I am willing to conclude my remarks, because I have prepared an exhaustive brief upon the constitutional questions, and, of course, you do not want to pass any indefensible legislation. You do not want to make a mistake. You are going to be bothered with this sort of thing time and time again, and the sooner you get to know whether you have this power or not the better. The act of 1909 was not considered from the constitutional standpoint at all. There has been no decision upon it, and you are not bound by it because of the manner in which the act was passed. It was not debated on the floor of the House or of the Senate and was not considered by the Judiciary Committee of either branch of Congress. Therefore, if you will give me permission to submit a brief which I have, I will content myself with leaving this matter in your hands without further discussion.

The CHAIRMAN. The committee, undoubtedly, will be very glad to have your brief on the subject.

Mr. BLOOM. And will print it in the record?

The CHAIRMAN. If it is not too extensive. We will have to take that up later. The record is getting to be quite long. I want to give both sides all the opportunity we can to have in the record all the material things, but we will have to come to a conclusion about that later.

Mr. BURKAN. The only point about that is this. You have here a very important constitutional question. We know how busy you gentlemen have been. I am very appreciative of your courtesy and your attention because I know you have done your utmost and your very best. The only way this matter can be presented to the attention of all the members of the committee is by having it in the record. It ought to be in the record because the questions involved means so much to one group of our citizenry.

The CHAIRMAN. We have no disposition to exclude any material matter, but we have to have some regard for the printing bills. Mr. BLOOM. Then the printing of the brief in the record will be held up until after the brief is submitted?

The CHAIRMAN. We want to give counsel every opportunity to have in the record whatever may be useful, but I think we ought to pass on that question ourselves later.

Mr. BURKAN. I am prepared to submit the brief now. The other side has been permitted to introduce into the record articles of associations. This is about the third time they have been printed in the record. Page after page of the record has been taken up in that way.

I really think the vital thing in this entire matter is the question of the constitutionality of the bill. This is the permanent record. I have exhaustively studied the question, have spent many nights in digging up the authorities from the time of the common law, and have traced down the various decisions to date.

The CHAIRMAN. I hope counsel understands I personally have great appreciation for his desire to have the matter of constitutionality considered by the committee, and I want to give him every opportunity he can have in all fairness to present all the features of the controversy, and I will say that I am very favorable to having his brief printed. However, it is for the committee to determine later on when we receive the brief and then, perhaps, we will be guided somewhat by its length and what it will involve in the way of printing.

Mr. BURKAN. It necessarily has to be long, Mr. Chairman, because we had to trace the origin of copyright, the understanding of its nature and character before, at the time, and since the adoption of the Constitution; the interpretation of the Constitution from that day to this. General statements will not do any good. Men got up here and made general statements unsupported by law, tradition, custom, or anything else. I support every statement I make by a decision of the United States Supreme Court, so there can not be any doubt about it.

Mr. BLOOM. We would have to have 22 copies anyway and I think it would be very interesting for the committee to have this brief on account of the other bills. I think, however, we should find out how long it will take to receive the brief.

Mr. BURKAN. My brief is ready now and everything said in it is absolutely germane and of importance.

The CHAIRMAN. We will decide the question of the printing of the brief later.

Have you anything further, Mr. Buck?

Mr. BUCK. Mr. Chairman, I have two more witnesses and their statements will be very brief. I think we can close our case by 12 o'clock.

Mr. VESTAL. Mr. Chairman, I think that Mr. Klugh ought to be given the right to make his statement now, because he must leave this

afternoon.

The CHAIRMAN. Do you object to that, Mr. Buck?

Mr. Buck. Mr. Chairman, there are a couple of gentlemen here who came here two weeks ago, spent five days here, went back to New York and have come back again. They also represent big inter

ests

The CHAIRMAN. You are entitled to go on now, Mr' Buck, if you so desire.

Mr. Buck. I would be very grateful if you would extend that courtesy to these gentlemen. They have been here two weeks and their statements will be brief. I would not want in any way to cut off Mr. Klugh, but I would greatly appreciate the courtesy of allowing us to go on with our witnesses.

The CHAIRMAN. All right; put on your first witness.

Mr. BUCK. Mr. Chairman and gentlemen of the committee, I wish to present Mr. Joseph P. Bickerton, jr., who represents some of the foremost theatrical managers in this country, including A. L. Erlanger, F. Ziegfeld, C. B. Dillingham, and many other producers.

STATEMENT OF JOSEPH P. BICKERTON, JR., NEW YORK CITY

Mr. BICKERTON. Mr. Chairman and members of the committee, we, as producing managers, are vitally interested in the question of literary property and its protection. The whole theatrical business and the presentation of literary property is based upon the idea of the exclusive right in the creator to his property and his right to grant to us the performing right of that property, and our reliance upon our ability to hold that exclusively.

As a result of this position there has been invested in this country many hundreds of millions of dollars in the ownership of real estate in every city in this country and the erection of an auditorium thereon; aside from a very large revolving annual investment in the paraphernalia and in the production of plays.

As a body of men, we are the ones who take the raw material which comes from these authors and composers and dramatists, and by a long series of association with them and by use of the experience tha we possess, we inform them how to alter and amend and delete and what do do in connection with their property to make it possible for it to be attractive to the public.

We then take that raw material and we get a stage director, and we engage people who have been developed through the schools and upon our stage to render that raw material in such a manner as will give to it a value from a performance standpoint, and in the back of

those various musical numbers are also the scenery and costumes that lend the color to the eye and make for its popularity.

These investments range from $75,000 to $250,000 per production. This music is then played by organized organizations, orchestras, in the theater, at great expense.

These buildings are operated and taken care of by a large number of people to whom we afford employment, in the way of ticketoffice people, cleaners of theaters, watchmen, electricians, property men, and fly men. Aside from that there is another group entirely in relation to the production itself who are afforded a means of livelihood; carpenters again, electric men, clearers, and a large body of players.

Now, the American theater in its entirety, its life, is at stake if these rights that this investment is dependent upon are to be written away at some fixed sum, some minimum amount, where others may take it.

We have always believed, and we believe now, that the Constitution of the United States protects a creator to the exclusive right in his property. We have always recognized his right to deal with us from that standpoint and we have always endeavored to be fair with him. We give him a royalty, and that royalty is based upon the gross receipts--that is to say, after our investment has gone in to aid this raw material, make it what it is, the public patronage, if it be one dollar, he gets his pro rata share of it; if it be $50,000, he gets his graduated pro rata share of that. Successful musical plays average approximately $30,000 to $40,000 per week gross receipts, so you can see that the 6 per cent paid to the book and to the score makes it an adequate compensation to these gentleman for their effort.

Now, what does this bill seek to do?. We maintain it is not only unconstitutional, but it treats us unjustly, in the way of unjust discrimination. Further than that, that it takes away the equal protection of the law, and that it is a confiscation of our property right in this regard.

This law seeks to fix what? Not a new situation. The circuit court of the sixth circuit has said that this is an infringement of copyright, by reason of it being a public performance, it being a public performance and the performing rights having been fully protected under the present statute, it becomes merely a segregation of a performing right, and the fixing for the use of that right at some nominal figure for other people to utilize our product after the investment of our money, and a denial to us to fix à price for its use by us.

,

We therefore demand, assuming the law may be constitutional, that you fix in this bill a sum of money by which we may have a portion of the performing right, at a fixed sum, and we ask that that sum be the same sum that is fixed for the broadcaster.

Secondly, after we have secured this performing right and have made it available, you deny to us by this bill, the right to advertise. Every other business may be accorded the privilege of the utilization of a radio to advertise its wares, and it is advertised how? By our property-by these various musical numbers-by the things that have appeared upon the stage. That is what they use to ad

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