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purpose is representation. Music is designed to be sung audibly or interpreted by musical instruments. It is addressed to the sense of hearing. Upon the representation of a drama the “writing” itself is not represented ; it is not exhibited as a picture thrown on a screen, but the ideas of the dramatist are reproduced by dialogue and action; so likewise upon the performance of musical composition, or opera, a succession of sounds forming or identifying the composition are reproduced.

It has been established at common law and recognized by our courts that “ rules attending property must keep pace with its increase and improvements and must be adapted to every case (Millar V, Taylor, 4 Burr., 2303), and copyright protection must correspondingly extend. As discovery, invention, and science create new forms of reproduction of intellectual works, the extension of copyright to such new forms should not be denied because unknown to the framers of the Constitution, and therefore not within the literal tenor of its language. It must be remembered, as stated by Chief Justice Marshall, that the Constitution was intended to endure for ages to come, and consequently to be adapted to the various' crises’ of human affairs." (McCulloch v. Maryland, 4 Wheat., 316–405.)

The right of Congress to enact this legislation has been conceded by the circuit court of appeals, second circuit; in the case of White-Smith Company v. Apollo Company (147 Fed., 226), which was brought for the infringement of copyrights on two musical compositions by perforated rolls. The court said:

We are of the opinion that the rights sought to be protected by these suits belong to the same class as those covered by the specific provisions of the copyright statutes, and that the reasons which led to the passage of said statutes apply with great force to the protection of rights of copyright against such an appropriation of the fruits of an author's conception as results from the acts of defendant."

Secondly. Another objection to section 1, subdivision g, is that it is an attempt to extend the control of the copyright proprietor over a sheet of music after the same has been sold to a purchaser and to deprive the purchaser of the right to make any profitable use that he can of the same.

It is contended that the purchaser of a sheet of music in the open market acquires an absolute right of property therein and is entitled to make all profitable use thereof, including the right to use the same for reproduction upon perforated rolls and phonograph records.

We have searched in vain for any respectable authority to support this contention. It is opposed to every principle of copyright and contravenes the position taken by Congress in section 4952 of the Revised Statutes, which was defined in the Sarony case as giving the author exclusive rights to use, publish, and sell” the subjects enumerated therein.

Under the present copyright laws, section 4952, Revised Statutes, the owner of a book has the exclusive rights to translate and dramatize the same, anıl under section 4966, Revised Statutes, the exclusive right to publicly represent or perform such dramatization. Do the objectors mean to co nd that the purchaser of a book can dramatize the book for public sale or performance?

It is well established that the author of a dramatic composition is entitled to the profit arising from public delivery or performance, to the sale of the manuscript, and to the printing and publishing of it. By the purchase of a ticket to a dramatic performance the general public acquire no right to reproduce the composition, either by taking notes or by the exercise of the memory. The spectator is entitled to the enjoyment of the exhibition, but there is no implication of abandonment by the author of his title or of surrender of his rights in the ideas. The spectator in paying for his ticket of admission has not paid for any right to get possession of the play for subsequent representation. (Werckmeister V. American Litho. Co., 134 Eed. Rep., 323, 325.)

A similar contention to that of the objectors was raised in the case of Millar v. Taylor (4 Burr., 2303), and the answer there found is conclusive of the objection here. The court said :

But it was said at the bar if a man buys a book, it is his own.'

What! Is there no difference betwixt selling the property in the work and only one of the copies? To say · Selling the book conveys all the right' begs the question. For, if the law protect the book, the sale does not convey away from the nature of the thing any more than the sale conveys it where the statute protects the book. Can it be conceived that in purchasing a literary composition at a shop the purchaser ever thought he bought the right to be the printer and seller of the specific work? The improvement, knowledge, or amusement which



he can derive from the performance is all his own; but the right to the work, the copyright, remains, in him whose industry composed it. The buyer might as truly claim the merit of the composition by his purchase (in my opinion) as the right of multiplying the copies and reaping the profits.

“ The invasion of this sort of property is as much against every man's sense of it as it is against natural reason and moral rectitude. It is against the conviction of every man's own breast who attempts it. He knows it not to be his own; he knows he injures another, and he does not do it for the sake of the public, but mala fide et animo lucrandi.”

In the case of Publishing Company v. Smythe (27 Fed. Rep., 914–921), it is said :

“The purchaser of the paper, leather, and twine does not necessarily purchase the literary property, and he can not use his ownership of the one to defraud the author of his property in the other.”

Lord Mansfield defined copyright “As property in notion, without corporeal, tangible substance," and said upon this subject :

No disposition, no transfer of paper upon which the composition is written, marked, or impressed, can be construed a conveyance of the property (by which he means copyright, as appears from a previous part of his opinion) without the author's express consent, ' to print and publish, much less against his will."

A purchaser of a copperplate engraving of a copyrighted composition, seized and sold under an execution against the copyright proprietor, does not acquire the right to strike off, publish, and sell, copies of the same. This is based upon the theory that the copyright is an independent right detached from the physical copyrighted property out of which it arises, and is capable of existing and being owned and transferred independent of the other. (Stephens v. Cady, 14 How., 528; Stephens v. Gladding, 17 How., 447; Patterson v. I. S. Ogilvie, 119 Fed. Rep., 451.)

Copyright means exclusive right to control and sell, and the principles of copyright in that respect are analogous to those of patent rights, and are so treated in the Constitution, where protection for both is secured by the same clause of the Constitution in language that indicates association of thought.

Upon examining the patent cases we find that upon the sale of a patented article the owner of the patent does not part with control over the article sold. (See Beman v. Harrow Co., 186 U. S., 70; Heaton v. Eureka, 77 Fed. Rep., 288; Edison Phonograph Co. v. Pike, 116 Fed. Rep., 863; Victor Talking Machine Co., v. The Fair, 123 Fed. Rep., 424.)

Further discussion of this contention, in the face of the overwhelming authorities against it, would neither be profitable or useful.

Thirdly. It is further objected to section 1, subdivision (g), because it proposes to interfere with “ vested rights” and is therefore unconstitutional.

Vested rights” in what? In the future productions of the musical minds of the country? It must be noted that the proposed legislation is not retroactive. It does not affect compositions copyrighted prior to the enactment of the law. All music in the public domain, and those copyrighted up to the time of the enactment of the law, are left free to the manufacturers of perforated rolls and phonograph records to be exploited and appropriated. The section deals expressly with the works to be written by the composer of the future. But the objectors contend that their patents give them the unlimited right to exploit and appropriate any composition that may be written during the life of the patent and its renewal, and that any law enacted to restrict this right is an infringement upon their vested rights in their patents. The absurdity of this proposition is apparent on the face thereof.

The letters-patent granted to the inventors of these perforated rolls and phonograph records, and improvements thereon, secure to them the right to manufacture contrivances adapted to reproduce sound. That is the extent of the right. It does not carry with it the further right to appropriate the copyrighted musical composition of any composer. There is nothing in the letters patent or in the patent laws or in the Constitution from which these rights emanate that can be construed as granting to the owner of a patent the right to deprive any man of his property or to exploit the intellectual productions of that man without fair compensation. Nor is there anything in the section which permits the composer of a musical composition, copyrighted after the act shall have gone into effect, to appropriate without compensation any device protected by patent. The composer would have no right to combine his composition with any patented invention and put the same on the market without the consent of the owner of the patent. Then, why should the owner of a patent have the right

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to use a copyrighted composition, without the owner's consent, in connection with his invention?

The owners of the patents to appliances adapted to reproduce photographs and paintings upon screens by means of magic lanterns might urge with equal consistency that their vested rights are being invaded by the limitation of their right to the reproduction of only such' pictures and paintings as are in the public domain or that they can obtain from the copyright owners.

The contention that these patent owners have vested rights in the offspring of the brain of American composers is in violation of every principle of ethics, equity, and natural justice. They would not attempt to urge the contention that if in order to make their patents profitable it was necessary to combine therewith ordinary personal property, they would thereby acquire any rights in any such personal property. The great principle on which the author's right rests is that it is the fruit or product of his own labor, and that the labor of the faculties of the mind establishes a right of property as sacred as that created by the faculties of the body. A literary man is as much entitled to the product of his labor as any other member of society, and the right to literary property is just as sacred as any other property and is entitled to the same protection that the law throws around the possession and enjoyment of other kinds of property.

This industry devoted to the manufacture of perforated rolls and phonograph records is essentially parasitic. It thrives by exploiting the productions of American composers, their names, and reputations. It exercises no productive effort in the art which it exploits. It does not stimulate original work. It waits until the composer and publisher have created and met a popular demand for a piece of music, through the expenditure of money, time, and labor; then it swoops down upon and appropriates that composition for use upon its machines, to its own unjust enrichment. It acquired great wealth, influence, and . power by sponging upon the toil, the work, the talent, and genius of American composers.

And carried away by the success of this iniquity, these manufacturers have become imbued with its righteousness to such a degree that they regard the exploitation of American genius and the appropriation of its creations to their own enrichment as their vested right, and this bill which is to secure to the American composer no more than his just due the full fruits of his labor-as an assault upon an inviolable right.

They admit that a phonographic record without the use of the name of the composer and the title of the composition with which his name is associated would render the record valueless as an article of merchandise; that the value of the record increases in accordance with the reputation of the composer and the merit of his composition. We wonder whether they claim that their patents give them a vested right to invade the right of privacy of the composer to exploit his name and reputation as an advertising medium for their wares?

But their selfishness is suicidal. It is a fact shown by a comparison of the industries that with the increase of the sale of their mechanical devices the sale of sheet music decreases. The hope of reward, this great incentive to original work, is thus taken away from the composers by the policy of these manufacturers, and the production of original compositions is discouraged. The inevitable result will be thai the composers will refuse to give original compositions to the public for the sake of a copyright protection which will no longer protect. Then will the parasite that kills itself be killed.

Fourthly. The objectors seek to defeat this iegislation by taking advantage of the popular clamor against trusts and monopolies, by urging that the enactment of this legislation would give legislative sanction to a conspriacy in restraint of trade alleged to exist between the Æolian Company and the Music Publishers' Association.

In our statement before the Committee on Patents of the Senate and House of Representatives we answered that charge and in most positive terms denied the existence of any such criminal combination. . (See Arguments Com. Pat. H. R. on H. R. 19853, pp. 202–206.)

And if such a combination does in fact exist it is not shown that a single composer is a party to or has sanctioned it. This legislation is intended primarily for the benefit of the composer. The sins of a few publishers should not be visited upon a great number of innocent composers, and it would be equally unjust that all publishers should be punished for the alleged wrongs of a few.

The new bill makes the right to use musical compositions for perforated rolls or phonographic devices a separate and independent estate, subject to assignment, lease, license, gift, bequest, or inheritance (sec. 38). The composer has the right under this section to dispose of the mechanical-instrument rights in his composition independent of the publishing rights, just as under the present law the publisher does not control the performing rights to any composition. The composer grants the performing rights to the theatrical manager and the publishing rights to the publisher, and each is independent of the other. It is more than likely that the same conditions will prevail with reference to the mechanical rights. The composer will go into the open market and let the mechanical rights to his compositions to the highest bidder. The one whose contrivances have reached the highest standard of perfection, whose devices give the best interpretation and representation of the author's work, will in many cases get the rights.

Most of the composers are not under contract with any publisher, and many do not know to whom their next work will go.

There is no foundation for the claim that the enactment of this legislation will sanction any such combination as is alleged to exist.

It is expressly held in the case of Bobbs-Merrill Co. v. Strauss (139 Fed. Rep., 155) that

" There is no sanction or support whatever to the doctrine that the several owners of distinct patents, each having a monopoly of its particular patent, or the several owners of distinct copyrights, each having a monopoly of his particular copyright, may combine and conspire as to their patented articles, or as to their copyrights or books published under and protected thereby, to restrain interstate commerce, in articles made or produced thereunder. The right or privilege to form such a combination or conspiracy is not embraced or included within the monopoly granted."

To the same effect see Beman v. Harrow Co., 186 U. S., 70.

Under these decisions the administrative officers of the Government can institute proceedings under the Sherman Act against the parties to the alleged combination. The objectors should submit the proof of its existence to the Attorney-General for action, instead of making this monopoly charge with a view of influencing Congress to refuse relief to composers against the unjust appropriation of their property and the exploitation of their names and reputations for the unjust enrichment of the mechanical-instrument manufacturers.

Some of the objectors, realizing the weakness of their various contentions and that they have failed to advance a single argument founded in fact or based on reason why this legislation should not be enacted, suggest that the composer could be sufficiently protected by permitting every manufacturer of these mechanical devices to secure the right to use the compositions on payment of a reasonable royalty, the payment of the royalty not to be in recognition of any legal right of the composer, but, as one of them says, on ethical principles (see “Arguments,” p. 108), or, as another explains, because the name and repute of the music and of its author may contribute to the sale of the reproducing devices, and a commercial value attaches to such name and title which is of benefit to the seller of the reproducing devices, and that for this the composer should receive a royalty. (“Arguments,” pp. 192, 193, 196.) Another suggests that the composer should have the right to collect reasonable royalties from manufacturers who may wish to use his compositions, leaving it to a court of equity to determine what royalties shall be deemed reasonable. (“Arguments,” pp. 133, 190.) Others are opposed to the extension of the protection upon any condition. (“Arguments," pp. 172, 139–146, 155–156.)

These suggestions are in keeping with some of the proposed amendments that the manufacturers of mechanical devices have submitted to the bill; for instance, to substitute the word “ writings” for the word “ works" in section 4 and wherever that word appears in the bill, because it is in contravention of the Constitution ("Arguments,” pp. 139–171-173), the apparent purpose of this amendment being to have such a construction placed upon this word in the bi!l as to afford an opportunity for a legal contest to secure a nullification of the objects sought to be attained by this legislation.

The suggestions to pay a royalty have a look of fairness and are undoubtedly made by these manufacturers with a view of impressing Congress with the idea that they are actuated by motives of equity. But as the plan comes from a quarter where fairness to the composers has not heretofore been at all visible in practice, it may be well to examine it with a critical eye. On such examination it will be realized that the plan, if incorporated in the bill, would probably furnish a sufficient lever for overthrowing this part of the bill entirely on the


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ground of unconstitutionality. A provision which would grant a license without the author's consent would certainly not be consistent with the exclusive right ” which the Constitution authorizes Congress to secure. The fact that such a provision would subject the composers as a class to-restrictions in the use of their property that other authors and inventors are not subjected to and that this restriction would, moreover, destroy the composers' freedom to contract with respect to their property, points to other serious constitutional objections.

Besides the question of unconstitutionality, the plan is not practicable, and the rights of the composer could not be enforced under it.

The following questions naturally suggest themselves to one's mind: How shall the reasonableness of the royalties of the composer be determined? By whom and in what manner will the decision be enforced, and what penalty is to be imposed for its disregard? Upon what basis shall the rayalty of the composer who writes a mediocre composition embodying just enough intellectuality to make it the subject of copyright be determined? And, on the other hand, upon what basis the brilliant composition of the eminent composer, which took months in conception, fruition, and development, and which has great merit and popular approval? What should be the mode of procedure in establishing the reasonableness of the royalty? Even if the procedure could be regulated, of which we have great doubt, the law's delays and the expense of litigation would be sufficient to discourage any composer from attempting to establish his rights. And, again, what protection will he have against the unscrupulous manufacturer ? A relationship of confidence and trust must exist between composer and publisher or manufacturer, because his royalties are dependent upon the sales made and the keeping of accurate books. In any event it is evident that the composer would be at the complete mercy of the manufacturer. These are considerations that must be kept in mind. The composer should have the right to select the man who shall arrange his composition for mechanical reproduction; to say how it shall be arranged and upon what terms sold. This to protect his artistic as well as financial interest.

The plan is subversive of every principle of copyright, which means a monopoly of control and sale of the subject protected.

It is the knowledge that the author can go into the open market with his product and sell it to the highest bidder upon the best possible terms that stimulates him to exercise his ingenuity. It is this principle also that makes the publisher exercise his efforts to secure the best compositions to make his business profitable by meeting competition.

The artistic side of this question is also to be considered.

While it must be conceded that some of the manufacturers make every effort to make their records and rolls of the highest standard of perfection, so as to accurately reproduce in the most artistic manner the composition of the author, in the same manner as he would if he himself were the manufacturer, there are competitors in the field, however, whose sole object is gain and who give to the public feeble, mutilated, and distorted versions of the original composition. For instance, a composition is written which requires a performance of five minutes. A manufacturer having no regard for the sensibilities of the author will prepare that composition for a record which can run in operation but for three minutes, owing to the limited possibilities of the reproducing contrivance, by cutting, mutilating, and distorting it; he interprets the composition not as the artistic judgment of the artist dictates, but as the business conditions demand. So at best the public gets but a feeble imitation of the original and in many cases forms its opinion as to the capacity of the composer and the merit of his work from these miserable imitations, to the mortification and injury of the composer.

The composer, therefore, should be left free to sell his rights whenever and to whomsoever he pleases, as is the right of all other creators of intellectual property.

The further objection to this proposition is that it would create a dangerous precedent in copyright legislation, a pernicious system of government price making as applied to individual property.

We desire to add a word in favor of section 25 of the proposed bill, which inakes it a misdemeanor to willfully and for profit infringe a copyright.

A musical composition is inherently different from any other subject of copyright and requires protection by criminal provisions for the reason that the cost of production of a sheet of music is very small. The career of a popular song is usually very brief, and the returns are frequently very large. It is not


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