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Mr. TINDALE. No; you are right about that. He has a very large field to choose from, the whole world.
Mr. CURRIER. How long do you think one of these concerns which could not get any new music would stay in existence?
Mr. TINDALE. The new music that is being produced cuts very little figure. In the musical world there are new compositions being made almost without number that would be acceptable to these people in countries where they are not copyrighted, in America.
Mr. CURRIER. Do you think a man buying a talking machine would be likely to purchase one that would not reproduce the music of Mr. Herbert or Mr. Sousa, or that that machine could successfully compete with a concern that sold a machine that would do it?
Mr. TINDALE. I admit that that helps it to go; but there is a very easy way for them to reproduce the works of Mr. Sousa.
Mr. CURRIER. I would like to have you suggest how.
Mr. TINDALE. The easy way would be for them to buy it from Mr. Sousa.
Mr. CURRIER. Exactly; but some other man has acquired that already.
Mr. TINDALE. I would like to speak of that briefly before I close, and will do so.
In conclusion, a few analogous cases may serve to illustrate the nature of this claim.
Twenty years ago a musical composition reduced to writing and copies printed on paper was the limit of use for that composition. It has now been found, however, that such a composition is useful and is essential to the inventors and makers of talking machines and other devices. This new and unexpected use of the composition forms a by-product, so to speak, of the original creative act of the composer. It is indisputable that a by-product belongs to him who created it, unless he chooses to throw it away. Manufactures and the arts are full of examples. Only two or three will be noticed.
(1) If one invents a sewing machine for sewing linen, and afterwards learns that it can be used for sewing leather, shall he not profit by this double value and usefulness of his invention? And may the sewing of leather be taken from him because he first invented the machine only for sewing linen?
(2) A farmer sows a field of buckwheat primarily to supply his bees with material for honey. If he finds afterwards a demand for buckwheat by those who would make it into flour, shall he not profit by the increased market for what his field has produced? And can it be seized for grinding by those who will, because he planted it only for honey?
(3) A case so closely analogous as to be almost identical would be that of a manufacturer of a patented article whom we shall designate as A, who could not operate his invention without use of a certain. part or device already patented by B. It is plain that B, as owner of the ground patent, may name the terms on which A can be allowed to use his device and may also decide whether he may use it at all. Now, the talking-machine and music-roll men and the composer of music stand in the identical relation held by A and B. The manufacturer can not reproduce music without using the composer's copyrighted property. I submit, seriously, that the composer's case could
safely rest upon this claim alone, waiving, if necessary, all other considerations.
As a final illustration, I refer to what is known as wire tapping. It is possible for evil-disposed persons with proper appliances to make a connection with the wires of a telegraph company, to intercept messages passing along the wires, to make use of the information thus obtained for their own purposes, and thus profit by use of a commodity which they neither created nor paid for. This is a crime, and is punishable by severe penalty. This case is not mentioned as a direct analogy, for I concede that what the talking-machine m'en do is not a crime, according to existing laws; neither do they go about it in secret. But it is none the less true that in taking over for their own uses a musical composition, to use it and to make money out of it without the composer's consent, they are doing that which in the case just cited would be contrary to law. It is right that the telegraph company should be thus protected, but equal justice to all would require that the only commodity produced by a composer should be his property absolutely, to own and to dispose of for his own benefit.
American composers, therefore, do not ask for charity, nor for special privilege. They simply demand the same control and ownership of their creations as is accorded to others. They claim "the exclusive right to their respective writings and discoveries," as named in Article I, section 8, of the Constitution of the United States.
I was asked a question a few moments ago which doubtless referred to an existing agreement or contract between the Eolian Company and certain publishers. I think that was the point that was in mind.
The CHAIRMAN. Yes; one that exists, or may exist.
Mr. TINDALE. I should like to state that Mr. Bowers, the president of the Music Publishers' Association, will address you on that subject. I desire only to say one word on the subject, and for this reason, that I represent one of the foremost musical publishing houses, and our house signed one of these contracts or agreements. Mr. LEGARE. Have you that contract here?
Mr. TINDALE. Yes; I have it here. It is already in the record. Our house signed such an agreement, giving to the Eolian Company the exclusive right for a term of years under certain conditions, and those conditions will be explained to you by Mr. Bowers. That agreement has perfectly proper limitations, as I think you gentlemen will concede. What I wish to say is this, that even if that agreement should be found to be binding, at the present time we deny, and in fact have notified the Eolian Company, that having failed to successfully defend their claim, we consider we are not any longer a party to it. We have notified them, and have received no protest from them.
Senator SMOOT. They have failed to defend?
Mr. TINDALE. They have failed to successfully defend their claim to reproducing rights constituting a separate piece of property. Mr. CURRIER. That case is still pending before the Supreme Court of the United States, is it not?
Mr. TINDALE. Yes; that is true. What I wish to speak of is
that no matter if this agreement is claimed to be valid and still in effect, we no longer have these reproducing rights. In the contracts that are given to us nowadays the composers reserve to themselves in the following language:
John Smith reserves to himself the exclusivé right and license to reproduce or cause to be reproduced said compositions on mechanical instruments, etc.
We no longer have that right. The composer reserves it to himSelf, and the reason I mention this is that the Eolian Company could get no monopoly from us.
The CHAIRMAN. Could not that company obtain such monopoly from others?
Mr. TINDALE. That I can not speak of, but I imagine that the others are compelled to do about the same thing that we are compelled to do; that is, the composers do not now give to us that right, and certainly we can not pass on that right to the Eolian Company if the composers do not give it to us.
Mr. WEBB. When was that new form of contract inaugurated? Mr. TINDALE. This is merely an assignment of copyright to our house.
Mr. WEBB. When was that form prepared, reserving the right to the composers?
Mr. TINDALE. About a year ago. This is the kind of agreements we are getting at the present time.
Mr. CURRIER. No suggestion of that kind was made in June, at the hearing then, that there had been any change in the contracts.
Mr. TINDALE. No; because we considered it purely a personal matter. I am going somewhat out of my province in speaking of it here. This is merely a personal contract between us as publishers and the composers. I am merely telling you that, because there can not exist any such grand monopoly as you will be asked to believe does exist.
Senator SMOOT. From your speech have we not the right to construe your remarks to mean that the composer has that right?
Mr. TINDALE. Yes. He has that right. He can give it to us if he
Senator SMOOT. And he can give it to the Æolian Company or any other company he may desire to give it to?
Mr. TINDALE. Yes.
Mr. CURRIER. And the Eolian Company now, instead of making contracts with the publishers, will seek to make contracts with the composers?
Mr. TINDALE. Yes. In other words, this is a new form of property that the composer has found, which has dropped into his lap, and that he reserves to himself.
Mr. CHANEY. The composer is now looking after his interests a little bit better.
Mr. SOUSA. I could make a contract with a talking-machine company or any other publishing house.
Mr. CURRIER. Haven't you made any such contract?
Mr. SOUSA. I have not yet, but I will.
Mr. HINSHAW. What would be the probable increase in the price to the consumer or the user for these perforated rolls if this law should be passed?
Mr. TINDALE. There is said to be an immense profit in the manufacture of these rolls and disks, and the small pittance that they would be called upon to allow the composer would not affect those rolls one cent, in my opinion.
Senator SMOOT. They would probably be sold to the public at the same price they are now?
Mr. VICTOR HERBERT. I will say, Mr. Chairman and the members of the committee, that I have not any contract with any company. I would simply give my works to the best company, and some of my works I would not give out at all. If I wrote a little piece for a friend, I would not give it to anybody. We only hope that we will have a voice in having these arrangements made, if they should be made.
The CHAIRMAN. The committee will be in recess until Monday morning at 11 o'clock.
MONDAY, December 10, 1906. The joint committee met at 10 o'clock a. m., pursuant to adjourn
STATEMENT OF MR. J. F. BOWERS.
Mr. BOWERS. As one of the proponents of the bill, Mr. Chairman, I wish to say that the bill as it stands is satisfactory to the Music Publishers' Association. So much has been said on this subject by the gentlemen who have preceded me that I will not take up your time by going into it at any length. There are, however, one or two little matters about which I should like, if possible, to enlighten the committee, at least putting our view of the question before you, and that is as to the relations of the Eolian Company of New York to this measure. I am not a member of the Eolian Company, nor do I speak for it specifically or directly. But I want to say, in connection with this measure, that the opponents of paragraph g have dwelt with considerable emphasis and force on the fact that this is a bill designed in the interest of a monopoly, that monopoly being the Eolian Company of New York.
The Eolian Company, as the Chair may not know, are manufacturers of mechanical instruments using principally perforated rolls for piano playing. A few years ago ten or twelve years ago, perhaps as the Chair may recollect, there was presented to the House a copyright measure known as the Troller bill, framed by Congressman Troller, of Missouri, in answer to the request of the music publishers, and dealt principally with the question of infringement of copyright by the makers of mechanical instruments. That bill failed of passage.
A few years after that the Eolian Company, by its representatives, conferred at a meeting of the Publishers' Association and stated that they were aware that they had been unfairly using the copyrights of members of the association and wanted to pay for that use, provided they were secured some protection. It was not thought well at that time to enter into any arrangement, and the matter dropped.
In 1902 the Eolian Company again brought up the proposition, agreeing that in consideration of testing the existing copyright act
in the interest of the publishers and at their expense they would prosecute cases through the lower courts, and the Supreme Court of the United States if necessary, to obtain a final ruling on the existing copyright act. They agreed with a number of the publishers that in consideration of putting this case through the publishers were to give them the use of copyright publications for a certain number of
Mr. CURRIER. Did not the contracts that you speak of also provide. for an attempt to secure legislation by Congress?
Mr. BOWERS. No, sir.
Mr. CURRIER. I had an impression that they did.
The contracts were signed by several music publishers as individuals, the association at that time not being incorporated, with the distinct understanding that if the case failed in the court of last resort the contracts should fall by their own weight.
The Eolian company is not interested in any way, shape, or manner in this bill. It has no interest whatever in it. It takes no interest it it. It sent no representatives to the conference, nor has it anybody here.
A monopoly of publications is an impossibility, and all this talk of a monopoly of music publishing is unwise, because the authors are fighting against the publishers almost every day. There have come into the field, since the signing of that contract, quite a number of publishers who had nothing to do with the contract. There are also outside contract arrangements with a number of other publishers of music, such as the Church company and companies in Philadelphia, Milwaukee, and so on. As I have said, the contracts are individual contracts and depend entirely on the contention raised by the publishers being sustained in the Supreme Court of the United States. A MEMBER. Where is that case now pending?
Mr. BOWERS. I will say that the circuit court of appeals sustained the lower court, and it is in the Supreme Court now on appeal.
We are here asking for what we consider to be our rights and to be fair to all concerned. We do not want you to be mislead by this talk of monopoly, nor do we think you ought to be influenced in any shape or manner by the trade papers' and others attacks made on the Librarian of Congress. We have found the Librarian of Congress to be not only a most kindly and courteous gentleman, but we think one of the most splendid servants in public employment. We simply want to submit this matter to you for your consideration, without taking any more of your time or dwelling at greater length upon the subject, simply assuring you that there is nothing whatever in this talk of monopoly, which we certainly think does not exist.
Mr. WEBB. I wish you would tell us what the Music Publishers' Association is, and of how many members it is composed?
Mr. BOWERS. That is a voluntary organization made up of about 58 different publishers. I should have said that there are about 75 contracts in existence at the present time affecting about 500 publishers.
Senator SMOOT. You speak of it not being possible to create a monopoly. Is it not possible to create a monopoly so far as the popular authors are concerned?
Mr. BOWERS. I do not see how that can be the case.