tween the broadcasters and the American society in the latter part of 1922, as to the relation between publicity and music. Mr. Mills stated:

Music is popularized in one definite and specific way, and it has proven the only way, and this is true in the high-class as well as in the popular field. Music is popularized 90 per cent through being sung directly to audiences, by vaudeville artists, concert singers, song pluggers sent to various functions and gatherings by publishers, and by operatic performances and musical comedies.

In other words, it is a matter of publicity. Now, before radio came along the method employed by the various publishing houses of the country was an elaborate, expensive and, to a certain extent, ineffective way. They would pay certain media of communication for audiences like noted singers, orchestra leaders, bands, actors on the stage, etc., to play their pieces in order to accomplish the familiarity in the ear of the audiences as widely as possible with that particular tune or melody or song.

Now, of course, it is easy to see where one of the unique features of radio comes into play, because I have said it reaches the widest audience and is the most effective and immediate method of popularizing.

In that connection, and in order to clinch the thought I have expressed here, I want to read a letter sent out by the American Society in August, 1923, over its own signature to all its publisher members. I will explain why there, are publisher-members in the society as well as composers and authors, but there are publishermembers, men who are interested in selling sheet music. This letter says:

All publisher-members: Just as we are at the crisis of our negotiations with the radio people for recognition and reimbursement of and for the right to use our works, the successful outcome which we anticipate is being endangered by occasional "plugging" solicited or done at the broadcasting stations within the knowledge and consent of some of the publisher-members.

Now I pause there to comment on two things. In the first place, "plugging," of course, means an effort to get a song before an audience for the purpose of popularizing it.

Next you will see that the fact that radio was the biggest "plug" in the world was, so far as recognized by the publisher-members of this association itself, that they were violating or not living up to an understanding, that they would not plug their broadcasting stations until these broadcasting stations took out a general license from the society, and hence the letter.

The letter continues as follows:

Now, the "radio" plug may be the biggest "plug" in the world; and certainly this society does not want to stand in the way of its members securing every possible advantage in the exploitation of their works; but with the goal in sight of securing from this source within a few months probably enough money to double our present rate of dividends, it seems short-sighted and foolish to throw the chance away for some little temporary advantage.

One member isn't going to sit by and be idle when he sees another member broadcast. Either all should do it, or none; for the present none should.

While I am on this subject I also want to read a telegram from Mr. Frank Sheridan, who is what is known as an independent. He was not a member of the society; he was interested in the selling of sheet music, and he had a song called Marcheta, which was a popular song with musical people. He sent this telegram in 1924, and the

93693-26-4

reason that I am reading a 1924 telegram is because this was put in the record in the previous hearing and I read it for the purpose of showing the relation of radio to what otherwise is a dead piece.

Here is a piece that had been sung by artists in an effort to popularize it. It had failed. It had been put on the shelf and it had gathered dust of two years. This man took it down and put it on the radio with the result which I now state. The telegram I read as follows:

I submit the following printing figures of Marcheta to the Senate and am prepared to swear to the accuracy of same, as is my printer also. George MacFarland first began to sing Marcheta about four years ago. Several other well-known artists followed in the course of the next two years, but sales were very small up to the time it was released for broadcasting. Copies printed in 1923, January, 5,000; February, 3,000; April, 12,000. Marcheta was released to broadcasters in March. June, 36,000; July, 42,000; August, 30,000; September, 76,000; October, 10,000; November, 117,000; December, 100,000; January, 1924, 154,000; February, 103,000.

Now, bearing on the same subject I want to read a letter from a member of the society, one of the biggest musical publishers in the world, Shapiro, Bernstein & Co., to its chief plugger, Mr. Charles Cordray, Minneapolis, Minn. The letter is dated September 13, 1923, and reads as follows:

I am writing this particularly concerning radio broadcasting. Not only is it of vital importance that you broadcast yourself at every opportunity, but read the broadcasting news daily of the near-by towns, and where you read of an orchestra that does broadcasting, try and locate the orchestra leader through some address other than the broadcasting station and try and become very friendly in order to induce him to particularly push and feature our numbers. Repetition of broadcasting is just as necessary as repetition of singers in vaudeville. I'd particularly like to see Annabelle and Back Porch broadcast tremendously by dance orchestras; so do everything in your power to watch this angle carefully.

I will say that I heard last night of an instance, which I can very briefly state, showing how the same thing is accomplished not only in connection with the sheet music, and I have been dealing with sheet music, but also in connection with phonograph records. The song All Alone, I am told, had not been sung in record form until it was sung not long ago by John McCormack; and when this was sung in one of the Victor concerts, the Victor concert being used to advertise their frthcoming pieces, what they were going to put on their records, the advance sales-I mean before any records were printed were 60,000 as the result of broadcasting in a concert to the people, and that is the second largest in the history of that method of selling.

Representative BLOOM. What song was that?

Mr. TUTTLE. All Alone. I mention this because I want to say that from my point of view radio is not simply a parasite industry, but it is an industry which performs a distinct service, and up to the present time radio has stood ready to broadcast popular music for this purpose without making any charge. In other words, we felt when we were before the committee in 1924 that the advertising advantages we gave were an equivalent and fair return for what advantages we might get. In other words, it was service for service. Since that time, however, as has been said by Mr. Klugh, the fact has come about that more and more these broadcasting stations are having what are called commercial programs. In other words, they

charge for putting on a program that somebody has an interest in having put on.

It is my view-right or wrong, it is my view-that if we were a combination tight and hard, or if we were not dealing with a combination the character of which I am about to speak of, but if we were dealing directly with a copyright holder, which we are not, then and in that event this principle of service for service might well be recognized; but the situation that confronts us is that it is an element in our problem that we are expected to render the service for nothing and at the same time pay an amount which we are asked to pay on the basis of signing on the dotted line.

The next element I wish to speak of in connection with our problem is the owner of music. That can be treated under three headings. If the first place, there is what is called music in the public domain; that is, music that has either never been copyrighted or on which the copyright has expired.

Naturally, as you gentlemen will perceive on a moment's reflection, that is not likely to be popular music, up-to-date music; it is music on which a 28-year copyright has expired.

Secondly, there is what is called independent music, and that is a significant term. Independent of what? Independent of the American society. That music, as I will show in a moment, is of a limited extent, so far as being popular is concerned. Now, anybody can write a song or a piece of music who knows anything about it at all and get it copyrighted, and no doubt we will hear before this hearing is over of the thousands and thousands of pieces which are copyrighted annually and do not belong to the society, But you gentlemen will see in a moment that that is not a practical situation, because that music may not, with some exceptions, have very much value. It is the music that the people want to hear that is the necessity for our business. It is not the music that people do not want to hear. If that were the case there would be no problem because there would be no radio.

Third, the ownership is the American society, and that is composed of the composers on the one side, and by the term "composers" I include writers of music, and of the publishers.

Perhaps I can not do better than to read what the society has said about itself, and I take up again in consequence the final minutes published by the society itself of this conference between the broadcasters and the American society in New York. The spokesman was Mr. Mills, who was the chairman of the administrative committee of the American society. Dealing with the number of popular writers, and I see the adjective is more important than the noun, he says:

Of the recognized, established authors, composers, and publishers in a so-called popular field probably 90 per cent or more belong to the society.

I am speaking now of mere membership. They have 90 per cent if you count by their heads on their own statement.

Counsel for the association at that time joined in to say:

I dare say, that as to the so-called popular writers this association represents 90 per cent of them. I would like to repeat, that there are at least 90 per cent of the popular writers in the membership of the society.

Now, let me turn to the publishers. That being the writers and composers, how about the publishers. Counsel for the society at the same meeting said:

As a matter of fact, of the so-called publishers of popular music, I, again, would say that there are 90 per cent, at least 90 per cent, members of this society.

Then one of the broadcasters asked this question, which is a significant and important question:

What I was getting at was this: What percentage, in the final analysis, of the total music that we use, is really represented by your society?

Counsel for the society said, "90 per cent"; and that is the basis of our statement which has been made to you that our programs are 90 per cent music and that music is 90 per cent belonging to the American society.

Now, passing that point, let me turn to the matter of quantity. Reference was made to so-called classical music on the other side and classical music has been and will be mentioned here. The classical music publishers have an association. What is the nature of that association? That is answered also by Mr. Mills. I quote from the conference as follows:

A QUESTION: But, Mr. Mills, apparently these high-class publishers have their own association, and if they see fit, can enforce their copyright as to public performances of their music.

Mr. MILLS. Yes; absolutely.

A QUESTION: Then would it be correct to say that in these organizations you would have practically a hundred per cent of the music that is copyrighted? Mr. MILLS. Yes, sir.

Of course, Mr. Mills did not mean that literally. What he meant was that they had a very large percentage of those two classes of music that the public wanted to hear.

Perhaps the committee will bear with me a moment if, just to enforce this point that I have in mind, I depart a moment from Mr. Mills's own statement and call attention to what has been said on this subject in communications by the society to those who may wish to commence to take licenses from them. I will read from a letter for Mr. Rosenthal, who is general manager of the society, written in its name to a Miss Madeline Saylor, November 22, 1923:

Here you will find inclosed a list of the members of this society whose copyrighted musical compositions may not be lawfully rendered by any broadcasting station unless permission is secured from the society. You will find not only the name of Waterson, Berlin & Snyder Co., but substantially the foremost authors, composers, and publishers of America included in our membership; and as station KDKA has not permission from us, it will be impossible to grant your request. I have here another letter from an attorney who is general counsel of the society for Iowa, dated November 15, 1922, to a consumer of music, saying:

If you will submit to your listeners the inclosed list of members of this society, including various publishing houses, you will undoubtedly be advised that this music comprises practically all of the music that is normally used in your theater. Again another letter from an attorney representing the society in Minneapolis to a certain theater says:

The society includes practically every known author, composer, and publisher in America and foreign countries.

I think the truth of that depends upon the meaning attached to the word "known," but it is significant of the extent of this combina

tion, so far as occupying the popular field, that those adjectives can be used at all.

The next element that I want to treat of as bearing on our problem is the copyright itself, its nature. I hold in my hand a report made to Congress by the Committee on Patents at the time of recommending the passage of the present copyright law in 1909. Naturally, that committee undertook to reflect the significance and content of copyright as it was to be embodied in the law which they were recommending for enactment. I will read one or two sentences from this report for purposes of illustration.

After quoting the Constitution, which simply authorizes Congress to pass copyright patent laws, without saying what they shall contain, the committee proceeds to say:

It will be seen, therefore, that the spirit of any act which Congress is authorized must be one which will promote the progress of science and the useful arts, and unless it is designed to accomplish this result and is believed, in fact, to accomplish this result, it would be beyond the power of Congress.

The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural rights that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive rights to their writings. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.

In enacting a copyright law Congress must consider, as has been already stated, two questions: First, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detrimental to the public. The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outweighs the evils of the temporary monopoly.

Your committee will bear in mind that the monopoly referred to was the monopoly of an individual piece of music represented by the individual copyright.

Representative BLOOM. The Constitution gives that monopoly. Mr. TUTTLE. I think the Constitution provides nothing. It simply says "may." In other words, as this report says, the Constitution confers nothing except what Congress may put into it by legislation. So much for the nature of the copyright. Now, the other element in our problem is, of course, the copyright law itself. I have analyzed that in a way, but I want to call attention from this same report which I have just read to what is said concerning the reason why in subdivision (e), to which I have adverted, that this committee that framed the copyright law recommended and Congress adopted and accepted.

Some of the gentlemen of the committee have just come in, and may I repeat this, that subdivision (e), the subdivision referred to in the copyright law, is the subdivision which is confined by its terms to the public performance for profit of musical compositions. It has nothing at all to do with copyright works.

In order that these gentlemen may have it in mind, the exception is simply this, that whenever an owner of a musical copyright has authorized the reproduction of that music under the then known means, 1909, of mechanical reproduction, then all other mechanical reproducers shall have the same right and there shall be a statutory rate of 2 cents apiece. That is in the copyright act itself.