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ments are made by hand, they are manuscript, and are not obtainable, as a rule, from any of the music publishers, and when a choir leader desires to give one of these special services he would purchase or borrow the musical selection from some music publisher and make the orchestral arrangement himself. These orchestral arrangements up to the present time have never been considered infringements of the copyright law, and have been welcomed throughout the world for hundreds of years and enhanced the value of the property, thereby adding to the reputation of the composer, but now all this the music publishers ask to have changed, and if the publishers should succeed in having the proposed bill pass and become a law it would make it a crime for the choir leader to make an orchestral arrangement of any musical selection for his choir to use on Christmas or Easter Sunday, which has been the custom for hundreds of years, and then he would be subject to section 25 and liable to be fined and imprisoned.
We hear a great deal of what the various trusts are doing to prevent competitors from interfering with them and to obtain the money of the people, but it has remained for the music trust, who are to be benefited by this bill, to endeavor to pass a measure to penalize the people of the United States and to imprison all who, in their religious devotions, in their amusements at night, or in their occupation in daytime should dare to make an orchestration of any copyrighted musical composition.
This is the way clause f of section 1 of the proposed bill would affect the operatic profession. If the stage manager should buy a vocal score of a copyrighted opera, or his manager hand him such a score in the regular course of his business, he should interleave it and put his stage business therein for the use of his opera company he should be liable to imprisonment if the bill was passed and became a law. If a musical director should purchase a copyrighted song, or the manager of the company should purchase the same and give it to the musical director with orders to orchestrate it in the musical production, the musical director and all of the chorus singers and the principals of the company would be subjected to fine and imprisonment providing this proposed bill was passed. This would also apply to all members of vocal societies throughout the United States, if some one of their leaders should make an orchestration of any musical composition that they might purchase from any music publisher.
It is also well known that all the public schools of the United States on the last day of the school year give a little musical entertainment of, say, half an hour duration, and in order to give that they either purchase copies from music dealers, borrow them from other schools, or rent them from music libraries, and they generally procure an orchestral arrangement to be used at this entertainment. Result, all the school children, the music teachers in the school, and the orchestra taking part would be subject to fine and imprisonment at the pleasure of the publishers. This also applies to all public singers, vaudeville performers, serio-comic singers, and orchestra in all the theaters in the United States.
Then, again, in section 6 of the proposed bill. This is a very peculiarly worded section and it is very difficult to ascertain what it is intended to cover. There is a hidden menace in this section that should be clearly elucidated before it is allowed to become a law. In my opinion it would have the following effect: For instance, any publisher who took a copy of the Holy City, by Gaul (which is a cantata), and is a free work and in the public domain, should take this work and add a few bars of new music to the beginning of it, he could copyright it under this new copyright law and it would become a new copyrighted work.
I sincerely trust that you will not permit this bill to be reported until there is an opportunity afforded for the various musical societies throughout the. United States to be heard on it. These societies are just about to begin the current musical year, they having been disbanded during the summer, and if an opportunity is given them to protest against the workings of this iniquitous clause there will be such a storm of protest hurled at Congress as will shake the Capitol from the pinnacle to the foundation.
I also notice in section 64 of the proposed bill that “all acts and parts of acts inconsistent herewith are hereby repealed, save and except section 4966 of the Revised Statutes, the provisions of which are hereby confirmed and continued in force, anything to the contrary in this act notwithstanding.”
You will no doubt remember that this pernicious section 4966 of the Revised
Statutes was the subject of revision last spring, and that your committee favorably reported an amendment for the relief of the choir singers and vocal societies throughout the United States from the consequences of said section. This section 4966 of the Revised Statutes at the time of its passage was worded so broadly as to include the music used and sung by choirs and vocal societies, but was only intended to protect dramatic compositions and dramatic musical compositions, such as operas, musical comedies, etc., which require enormous expense to place on the stage; and in order to make the wording of section 4966 more explicit and prevent misconception I would suggest that the word dramatic be inserted before the word “musical,” so as to read as follows: “Dramatic compositions and dramatic musical compositions."
Hoping that you will bring the facts of my communication to you before your committee, and that the word “arrangement will be stricken out of paragraph f, first section, of the copyright bill now before your committee, and the word “ arrangements ” stricken out of section 6 of said bill, and that there will be inserted in section 5, paragraph e, the word “ dramatic” before the word “musical,” which would then read “dramatic musical compositions.” and assuring you that I have every confidence in your committee and that you will not permit the failure of the Government in inviting all the interests affected by this proposed bill at the initial conferences to result in legislation prejudicial to the interests of such a large portion of the citizens of the United States, I remain, Yours, very truly,
HERMAN FROM ME.
[From the Inland Printer, August, 1906.]
INJUSTICE IN PROPOSED COPYRIGHT LAW.
Mr. S. H. Horgan, art manager of the New York Tribune and editor of the department of process engraving in the Inland Printer, is making a vigorous fight against the iniquities of the proposed copyright law. In a letter to Newspaperdom Mr. Horgan says: “Proprietors of newspapers should wake up. A new copyright bill has been concocted without consulting, as far as known, a single maker of newspaper illustrations, the result being that newspapers must either give up illustrating or be prepared to pay from $250 to $5,000 damages for many of the pictures they will publish. The newspapers of the country had better get together in this matter, as they will be in such a shower of copyright suits as to flood them. What are they going to do about it?”
Among the various clauses in the proposed law which are prejudicial to newspaper interests and which are distinctly inequitable are the following:
Under the present law the proprietor of a photograph or negative can obtain copyright.
The proposed copyright bill (section 37) makes the copyright a distinct property from the material photograph which is the subject of copyright. Thus the proprietor of a negative or photograph may have no right to reproduce it.
Referring to the applicant for copyright, the presenť law says:
“He shall on or before the day of publication in this or any foreign country deposit in the mail within the limits of the United States a printed copy of the title of the photograph, and not later than the day of publication deposit in the United States mail two copies of the photograph.”
The new bill (section 2) allows the photographer thirty days after publication of the work (photograph) upon which copyright is claimed to apply for copyright. And (section 15) adds : “ If by reason of any error or omission he has neglected to do so within thirty days, it is permissible for him to apply for registration within a period of one year after the first publication of the photograph.”
The present law orders: “ The photograph must be from a negative made within the limits of the United States."
The new bill permits the photograph or negative to be made in any part of the world, and apparently by a citizen of any country.
The present law says: “ The notice of copyright must be inscribed upon some visible portion of the photograph or of the substance on which the same shall be mounted in the following words: ‘Entered according to act of Congress in the year
by A. B., in the office of the Librarian of Congress at Washington,' or at his option the word 'copyright, together with the year the copyright was
entered, and the name of the party by whom it was taken out, thus : 'Copyright, 18%, by A. B.'
The new bill allows: “The notice of copyright shall consist of merely the word 'copyright,' or the abbreviation 'copr.,' or the letter C.' inclosed in a circle, accompanied in every case by the name of the proprietor or by his initials, monogram, mark, or symbol,” and this can be anywhere, on the front or back or even the edge of either the photograph or the mount. Commenting upon the proposed bill, Mr. Horgan says:
Each one of these four sections in the new copyright bill relating to photographs has such skillfully devised changes in the present law as to give photographers largely increased opportunities for levying damages on the newspapers and all illustrated publications.
“ Then the damages are defined by the new bill to include • damages the proprietor of the photograph may have suffered,' plus 'the profits the infringer may have made, together with $1 for every infringing copy of the newspaper made, sold, or found in the possession of the infringer or his agents or employees.' * Such damages shall in no case exceed the sum of $5,000 or be less than the sum of $250.'
“The photographer is allowed three years after an alleged infringement to begin an action, and in all recoveries under this act full costs shall be allowed.'"
The chairman called the meeting to order.
STATEMENT OF MR. STEUART-Continued.
Mr. STEU ART. Mr. Chairman and members of the committee, we pass now to the nineteenth section of the act, which provides for extensions. That contains a clause which may need some explanation, ind that is the incorporation of the right on the part of the licensee or assignee of the copyright to a voice in the extension. There was a great deal of discussion about the framing of that clause when the matter was under consideration by the convention, and much difficulty was experienced in trying to protect the rights of all parties, and finally this clause was reached as a compromise of the interests involved, because it gave to each side the necessity of calling upon the other, both the author or the original proprietor and the subsequent licensee or assignee, as to what should be done in the case of an extension. It was the best compromise that we thought possible under the circumstances, because it left each of those interested a voice. They had to be consulted and had to be reconciled before the application could be made. Some one has with some degree of propriety suggested that in this day, when many of our most distinguished authors are ladies, it is hardly fair to the husbands to draw an act providing for an extension for the benefit of widows only. If the act is to be logical and you gentlemen are husbands and you are going to draw an act for your own benefit, you had better provide for widowers as well as widows.
Mr. HINSHAW. There is no reason why a husband should not take the property of the wife in this case any more than there is in any other property that she may possess.
Mr. STEUART. Not the slightest. If the benefit is to the widow in case the husband is an author, then the extension should inure to the benefit of the widower in case the wife is the author.
Mr. BOWKER. I think the use of the word " widow" included both sexes originally.
Mr. Page. Is it not a fact that in Illinois the law now speaks of the interest of the husband as a dower right? I am under the impression that it does.
Mr. STEUART. I do not know. I am not familiar with the law of Illinois.
Mr. McGavin. No; there is no such provision as that.
Mr. STEUART. Some objection has been made to section 22 on the ground that it creates rights which might be availed of by mere affiHavit on the part of the copyright owner, and very great hardship · might be imposed upon persons whose goods or books were sent through the mail or which were sent through the customs-house on the mere election, mere claim of somebody who might possibly have an interest.
Mr. BONYNGE. What section is that? Mr. STEUART. Section 22, which provides that any reproduction, without the consent of the author or copyright proprietor, of any work or any material part of any work in which copyright is subsisting shall be illegal and is hereby prohibited. Now, it does not appear to me that there is any difficulty whatever about that. The customhouse of the United States and the post-office of the United States is not going to take the initiative of prohibiting things from passing through the post-office or through the custom-house unless they are fully assured that any action they may take is warranted by law. The proof will have to be complete before any initiative is attempted on the part of those Departments, so that I do not think there is the slightest danger to the public through the existence of those provisions.
We come now to the very important provision, section 23, which relates to remedies. This clause is one of very great difficulty. It relates to the civil remedies only. When this clause was first considered we were confronted with precedents of the patent law and the trade-mark law and the copyright law with reference to drama and music, and an attempt was made to put into this clause all of the remedies of the existing law and all of the remedies which have already been enacted by Congress with reference to patents, as well as trade-marks. A recent trade mark law had been passed containing some very important and valuable remedies, and this clause has been drawn as a consolidation of all the remedies which had existed before with reference to copyrights, patents, and trade-marks, wherever there is no inconsistency. In case of infringement of copyright, which has
been proven, an injunction, of course, goes as the usual remedy. Then, as to the question of profits and damages, the defendant is to pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all of the profits which the infringer may have made from such infringement. Now, it is said that that is a double remedy, to recover both profits and damages, something which is unknown to existing law. That clause is drawn upon the existing statutes. The patent statute contains this language, section 4921 of the Revised Statutes, after providing for the recovery of damages:
In addition to the profits to be accounted for by the defendant, the damage the complainant has sustained thereby.
Now, that is the language of the patent act. Section 19 of the trade-mark act, 1905, contains the identical language:
In addition to the profits to be accounted for by the defendant, the damage: the complainant has sustained thereby.
That is the language of the patent act, section No. 4921, and of the trade-mark act. The courts have construed that language in various ways. Some of the courts have construed it to mean that the owner of the patent might have one or the other, whichever was the greater. The language seems to indicate that he may have both. On its face it appears to give both profits and damages in equity. If that is the existing law with reference to patents and trade-marks, it ought to be the law with reference to copyrights, and the attempt has been made in this act to reproduce identically the same meaning in the language which has been used. Possibly it might have been better to have used exactly the same words.
Mr. BONYNGE. Have you not made the intent of the law a little clearer by the language you have used in this act?
Mr. STEUART. If the courts will decide that the language of the patent act and the language of the trade-mark act will exclude the recovery of both profits and damages, then, for the same reason, they will decide that the language which has been used in this section will also prevent the recovery of both.
Mr. BONYNGE. Do you think that is true? Do you not use language in this section that will preclude the possibility of the court determining that they could only have one or the other of the two remedies?
Mr. STEUART. I can not see any difference in the scope of the language.
Mr. BONYNGE. You have said in this caseTo pay to the copyright proprietor such damages as the copyright proprietor may have suffered, due to the infringement, as well as all of the profits which the infringer may have made from such infringement, etc.that certainly means both.
Mr. STEUART. It would seem so, and this is the language of the patent act, “ in addition to the profits,” and “ addition” does not mean either.
Mr. BONYNGE. No.
Mr. STEUART. “ In addition to the profits to be accounted for by the defendant, the damage the complainant has suffered.” Now, the question, as I said, is by no means one which is entirely settled by the decisions of the courts. The language of both the patent and of the trade-mark act is in itself broad enough to give both, and the language of the copyright act ought to be similarly broad.
Senator Smoot. You were here when Mr. Wilcox, of Buffalo, made a suggestion offering a substitute to section 23, commencing on line 12, page 17!
Mr. STEUART. I was.
Mr. STEUART. I did, and I will discuss that now. I have not the text of Mr. Wilcox's suggestion before me, but as I remember hearing it, it appears to me to be admirably phrased to accomplish exactly the same result which is intended by the language which is used in the bill as it is presented. The language which is here used is not altogether the best which might be chosen, but it has been