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an uncommon thing for a popular song to reach a sale in the hundred thousands. It is sold in music stores, stands, carts, etc. The cost of production being small, while returns are frequently large, music is an attractive field for pirates and petty grafters, who have no regular place of habitation, no financial responsibility, and for whom injunctions, civil damages, and penalties have no terror; and it is against these barnacles on the music-publishing industry that this legislation is aimed.
A song is made popular by the expenditure of a great deal of money in advertising it, bringing it to the public's notice by ordinary advertisements, by the gratuitous distribution of expensive band and orchestra arrangements thereof to hotel and other orchestras, and in numerous other ways. When the publisher has succeeded in creating a popular demand for his composition, the pirate makes a raid and reprints thousands of copies of the song, floods the market with his counterfeits, and sells them to hucksters, stand keepers, jobbers, and dealers. The counterfeiting is usually done by means of photoengraved plates, so that the ordinary purchaser can hardly detect the difference between the genuine and the counterfeit copies. The consequence is that the publisher and composer are irreparably injured and not only lose profits, but their actual investments.
As a specific instance of this form of plunder the case of Garret J. Couchois may be mentioned. He was convicted in the court of special sessions, New York City, on the 28th of October, 1905, for counterfeiting the trade-mark of Carl Fischer, å publisher, in connection with a song owned by Fischer, entitled “ Hearts and Flowers," and was sentenced to thirty days in the city prison and fined $350. The conviction was unanimously affirmed by the appellate division. And subsequently he pleaded guilty to counterfeiting other publishers' trademarks.
This man conceived the gigantic scheme to reproduce every successful and popular number in the musical market. Under the assumed and fictitious name of “ Jones,” Couchois went to a photo-engraver, the Empire State Engraving Company, of New York City, with genuine copies of musical compositions belonging to different publishers and had them photo-engraved. The photo-engravings were exact plate reproductions of the originals. These plates were sent by him under the alias of “ Jones” to a printer, “ the Wilson Press," and thousands of copies were printed and shipped to Rutherford, N. J.
In the case of “ The Holy City,” published by Boosey & Company, an English company, each of the genuine copies was stamped in ink with the signature Stephen Adams,” the object of which was to insure its genuineness. But Couchois could not be foiled in his operations by any such device. Promptly he had a stamp made simulating the signature of Stephen Adams and impressed it on every one of the counterfeit copies. He then went to Boosey & Co.'s store in New York, purchased ten copies of “ The Holy City”. and demanded an invoice of his purchase, which was given to him; this invoice he changed to read 10,000 and made erasures in the price indicated in the invoice.
By means of this forged invoice and upon the representation that Boosey & Co. had sold them for export at a greatly reduced rate he was enabled to sell them to New York jobbers. Agents in his employ sold the counterfeit copies in Chicago, Philadelphia, and other cities. The counterfeits were sold at much less than the prevailing market prices of the genuine copies.
So deftly was this work done, so exact and skillful the reproductions, that even Wilson, who printed the counterfeits, was unable to distinguish between the original and the counterfeit. With such secrecy were these operations carried on that months elapsed before the piracy was detected. The music market was flooded with counterfeit reproductions of every successful and popular song, and the music publishing industry, involving the occupation of large capital, the employment of labor, and the sustenance of composers, was at the complete mercy of this one pirate, and many were threatened with financial ruin.
The structure of the music industry began to tremble, and such was the magnitude of this man's operations that if he had been permitted to continue for another year, the legitimate music publishing business would have been completely wiped out.
The copyright law was entirely insufficient to cope with the situation. The pirate carried on operations throughout the country. The courts will not grant an omnibus injunction to cover every composition published. An injunction against an individual composition is of no avail, because by the time service
is effected on an elusive character as this pirate he succeeds in flooding the markets with the reprints. But even if he were served with the order in time, there is nothing to prevent his numerous confederates from continuing the operations where he left off. Whatever property this pirate had was held in the name of his wife, and as to damages and penalties he was execution proof.
Couchois was aware that the copyright laws contained no criminal provisions, and would have been able to continue his depredations with impunity if it were not that he made one grave error, viz, to include the publisher's imprint on the counterfeit copies. In doing this he transgressed the laws of the State of New York.
The New York authorities came to the rescue of the music publishing industry, and instituted criminal prosecutions, the photo-engraver and printer turned State's evidence, and Couchois and one of his printers were convicted. The pirate fought the prosecutions with great vigor, engaged the best counsel and urged in defense that he violated the copyright laws and that he could be punished for that only, and that the New York courts had no jurisdiction in the matter. The courts ruled that if he had omitted the trade-marks from the pirated music they would have had no jurisdiction. Since Couchois's conviction other pirated copies of music have appeared on the market.
Conditions in England respecting piracy were as bad as here, and by the act of 6 Edward VII., chapter 36, passed August 4, 1906, the pirating of music was made an offense punishable on summary conviction, and on a second or subsequent conviction to imprisonment with or without hard labor for a term not exceeding two months or a fine not exceeding £10.
Prior to the enactment of the misdemeanor clause, section 4966 of the Revised Statutes in 1897, similar conditions prevailed with reference to dramatic and operatic performances. The moment a play attracted public attention irresponsible pirate managers produced the play in every part of the country and the dramatist and manager were robbed of the fruits of their labor; and play writing and producing were greatly discouraged. It is with great pleasure that we note that since the act of 1897 but one prosecution was commenced under the act, and piracy in this direction has wholly ceased. The law acts as a deterrent, and the great progress we have made in the dramatic art is directly traceable to this salutary legislation.
Acts similar to section 4966 of the present law have been enacted in New Hampshire, New York, Louisiana, Oregon, Pennsylvania, Ohio, New Jersey, Massachusetts, Minnesota, California, Wisconsin, Connecticut, Michigan, which acts protect uncopyrighted dramatic works.
Dated, New York City, December 6, 1906.
STATEMENT OF MR. J. L. TINDALE.
The CHAIRMAN. Mr. Tindale, whom do you represent?
Mr. TINDALE. Mr. Chairman, I am a member of the executive committee of the Music Publishers' Association of the United States, and wish to speak to you on behalf of the American composers of music.
Mr. BONYNGE. Did you address the committee last spring?
Mr. TINDALE. No; not on this subject. I was in Washington on another matter. It may happen that two or three of the points that I touch upon may be those that have already been spoken about, but I will ask the committee to bear with me, because I have every reason to believe that this paragraph here is going to be the object of a very severe attack, and we should like to have the committee know the position of the musical composers on that paragraph. I would like to add also that so far as I am authorized to speak, it would be immaterial to us whether this paragraph g should remain as it is or be incorporated as a part of paragraph f. The same opposition will be encountered in any event, I am quite sure. So far as I represent the
composers of music, it is not solely that they object to the production of music on the machines, but it is the reproducing of the copies, the disks, the cylinders, and the sale of that without any payment.
The CHAIRMAN. As I understood, some one stated this morning that by giving the party notice the composer could successfully prevent the use of his composition in the manner in which they now complain.
Mr. TINDALE. My understanding is that they could under this proposed statute.
Mr. BURKAN. They could not under existing law.
Mr. TINDALE. We have claimed heretofore that they can control the performing rights; but that is a different phase of this subject.
The CHAIRMAN. That is the phase of the subject that I have in mind.
Mr. TINDALE. What I particularly speak of is the reproduction of rolls and disks.
Mr. Sousa. Lots of publishers now put on their title-page "Reserved from use by mechanical instruments,” but it has no effect. They are used for machines just the same.
Mr. TINDALE. As I have said, I appear on behalf of the Music Publishers' Association, which has requested me to address you in behalf of American composers of music. These comprise a body of reputable and useful citizens who are without any organization. They are largely dependent upon music publishers for the protection of their business interests.
The one point about which it is desired to address you is contained in paragraph g of section 1, which will probably come to be known as the talking machine and self-playing piano clause.
For the purpose of this discussion I ask that the term “talking machine " be taken to include self-playing pianos, perforated rolls, and all machines or devices for copying or reproducing music automatically.
It is also requested that all court decisions based upon existing statutes be dismissed from the mind, since what we are seeking is a new copyright bill, based upon conditions which did not exist when the present laws were enacted.
The makers of talking machines and records appropriate to themselves and engrave and sell copies of a composer's copyrighted works without the composer's consent and without paying any compensation. I shall hope to show you that this is
First. A moral wrong and an injustice as between man and man. Second. A violation of accepted and established rules of business.
Third. An usurpation of a right authorized by the United States Constitution to be granted by Congress.
Permit first a word about composers as a class. " Let me write the songs of a nation and I care not who may make its laws” is, like most epigrams, an exaggeration. It is, however, none the less true that composers are not without value or influence in a nation's affairs. “ The Star-Spangled Banner" and John Philip Sousa's “Liberty Bell” are known around the world and are heard in remote corners of the earth where as yet the essence of liberty itself is a thing unknown. “ Home, Sweet Home," "Annie Laurie," and "Suwanee River" will be loved and remembered and will have their gracious influence over the hearts of men when those who now make our country's laws are passed away. The names of Richard Wagner and Mozart will be known and revered after the names of emperors are forgotten.
American composers being then without question entitled to grateful recognition and fair treatment from this nation, you are respectfully asked as one of its lawmakers here to consider the rights and interests of composers as affected by paragraph g: It is around this paragraph that the principal opposition to the bill has centered, and paragraph g is to be the main point of attack, an organization having, it is understood, been formed for that purpose.
The issue is thus squarely between (a) several large and powerful business concerns engaged in manufacturing talking machines and records, self-playing pianos and perforated music rolls, on the one hand, and (6) American composers on the other.
The latter are as a rule persons of limited income, while the talkingmachine and piano-player manufacturers represent large combinations of capital. They have built up huge interests and are earning large profits from use of the composer's works, for which they allow the composers no compensation. To correct this injustice is the aim and purport of paragraph g.
Paragraph g proposes to give to the composer—what should already be his-the right to reproduce his works for all kinds of instruments or machines, automatic or otherwise. His claims are based upon the following:
(a) The fruit of man's brain is property as truly as are the more tangible products of the mine, the field, or the forest.
() The ownership of his works—which is to say, copyright, or the right to copy—should of a right belong to the composer absolutely, whether the copying be by
Pen and ink.
Round notes printed upon paper, as for the ordinary piano or orchestral instruments.
Tonic sol-fa notations.
Spiral indentations upon wax cylinders or gutta-percha disks, as for talking machines.
Raised characters, as in the Braille system for the blind. Square or round holes punched in paper, as for self-playing pianos.
Notation transmitted electrically or by some other device yet to be perfected.
The right to copy belongs solely and absolutely to the inventor of the musical idea under whatever process may be used to convey the musical impression to the hearer.
Any less rights than those enumerated above would give to the composer only a partial or a defective title to his property. It would be less than the "exclusive right” mentioned and authorized by the Constitution; for the Constitution places a limit on the time only and none whatever upon copyright ownership itself. We here lay claim to the full and literal meaning of the words “exclusive right.”
(c) Aside from the question of revenue, composers should have the right to say by whom and in what manner their music shall be
engraved or copied for reproduction on automatic instruments or machines. In their haste to make use of the name and works of famous composers the makers of talking machines and of automatic instruments often take the liberty of making their own garbled and distorted arrangements, adding to or leaving out important parts of the compositions. Also it frequently happens that compositions intended for grand orchestra or for fulỈ military band are conveyed or copied on the records by use of a "scratch orchestra or by an inferior band—all the above having the effect of belittling the composer and injuring the standing and reputation of his works. Mr. Victor Herbert has stated that he has thus often heard his best compositions so reproduced as to be scarcely recognizable and so as to cause him humiliation and shame.
It is claimed, therefore, that for the cause of music itself, as well as by his personal right, the composer should own and control the copying of his works for use of automatic machines.
(d) As a rule, the composer's only revenue from his writings is from the sale of the printed copies by his publisher, who pays him a royalty on the sales. It is claimed, however, that the sales of almost any piece of music that becomes popular is far greater in the form of talking-machine records and automatic piano rolls than the sales of the sheet music. On the latter the composer has his publisher's royalty, but from the records and rolls he receives absolutely nothing. He frequently suffers an injury besides, for the ear of the public is soon surfeited by flooding the market with an inferior production and one which has cost the manufacturer nothing but the price of the material.
We claim this to be a gross injustice to the composer, measured by any standard we please, of morals, equity, or business. To show that the loss suffered by composers is not imaginary nor of small account, we refer to the Victor Talking Machine Company, which some months ago published in the press a series of demonstrations addressed chiefly to piano dealers. It was shown and proven by actual figures that the sales of talking-machine records and supplies had reached such a successful volume that the dealers of the country could do a larger business and make a greater annual profit in the sale of their goods than could be made in the sale of pianos or any other musical merchandise. It is believed that the figures shown were truthful and correct. These were large in amount, but whether they were comforting to the composers of this country, whose property and whose livelihood were being enjoyed by others at their expense, is open to grave doubt.
The talking-machine companies virtually admit the merit of our claims, for anyone reproducing or making a copy of one of their records or disks would be prosecuted by them for infringement, notwithstanding that they themselves had appropriated the music without the composer's consent.
Mr. Johnson. May I ask the gentleman if the machine company can not go on and use the works of Beethoven and Bach and many others, copyrighted before the passage of this bill?
Mr. TINDALE. We are speaking only of copyrighted works.
Mr. Johnson. But his business is not going to be broken up by this bill.