Mr. WALKER. The only music composers that have appeared before this committee, either in writing or orally, to ask for this legislation are three in number, Mr. Sousa, Mr. Victor Herbert, and Mr. De Koven. Mr. De Koven did not come in person. The almost universal desire of the musical publishers of this country, as far as I can find out, is that that section (g) shall not be enacted.

The CHAIRMAN. Musical composers, do you mean?

Mr. WALKER. Yes.

Mr. SOUSA. Can I say a word here?

Mr. POUND. Not now.

Mr. WALKER. I have the floor. It has been yielded to me. I have been an attendant at all of the hearings and only two men have appeared who said they were composers and that they wanted this legislation, and those two men were Victor Herbert and Mr. Sousa. In addition to that, it has been stated here that Mr. De Koven took the same view, but he has not been here.

The CHAIRMAN. Mr. De Koven, Saturday afternoon, through Mr. Berry, as I recollect, secured permission to file his statement.

Mr. WALKER. Certainly. No doubt he agrees with Mr. Herbert and Mr. Sousa. This afternoon we had here the leader of the Marine Band in Washington, a distinguished composer also-not so famous as Mr. Sousa, but, nevertheless, his successor as master of that Marine Band. That gentleman was all ready to stand up here and tell this committee that he did not as a composer desire this legislation, but unfortunately he is unable to be here to-night. Judging from the knowledge I have been able to gather during six months it is my opinion that of all musical composers in the United States ninetynine out of every one hundred of them are intelligent enough to know that the enactment of this bill will be against their interests, and anyhow, whether that is so or not, none of them have come here and asked to have the bill enacted. Further than that, that sheet that Mr. Putnam carries, which sets forth the gentlemen who want this bill enacted, does not contain the name of a single musical composer. It contains one heading that purports to relate to something with musical composition, and under that list are contained the names of two ladies, but no gentlemen.

The LIBRARIAN. You mean the list of participants in the conferences? Mr. WALKER. So that the fastnesses of the North Pole, where Lieutenant Peary has lately been, is no more silent than is the great mass of musical composers of the United States in advocacy of this bill, and the situation comes down to this, that gentlemen who are not composers, who are engaged in a mercantile business, the Æolian Company and their friends, are seeking, under the guise of the merits of the musical composers, to drive their competitors out of competition with them in a commercial business.

Mr. SOUSA. Can I say a word here?

Mr. POUND. It will have to be very brief, and this will be the last interruption that I shall permit.

Mr. SOUSA. Mr. Chairman, I can not understand why the passage of this law will interfere with these gentlemen who want to go to the talking machines. If 99 per cent of the composers are willing to give them their product, all right. I can not understand why I should be robbed in that way. It will not hurt you, and if 99 per cent of them give the music to these people, all they will have to do is to pay me.

I can not understand how this law will interfere with them, and I am not standing for any publisher. I am standing for John Philip Sousa, and America..

Mr. WALKER. The interest the 99 per cent have in the defeat of the bill resides in the fact that they will sell more music if we continue to advertise their business than they will if the Aeolian Company drives us out of business.

Mr. SOUSA. I prefer to be the judge of that myself. I want to select the means of advertising my music.

Mr. McGAVIN. Mr. Sousa, there was a representative of a phonograph company here last session who, I think, in the hearings made the statement that you at one time had come to them and besought them to put your music on their machines.

Mr. SOUSA. I beg to state here that the statement was so absurd at the time that I did not take it seriously. It is absolutely false.

Mr. CROMELIN. Mr. Chairman, I would like to state that I am the vice-president of the company referred to the Columbia Phonograph Company. Mr. Sousa claims the city of Washington as his home. So do we. We started in business in the District of Columbia about the time Mr. Sousa, then leader of the United States Marine Band, won his first laurels as a composer. The first band records I have any recollection of were made by Mr. Sousa and his band, and I have very distinct recollection of advance scores of Mr. Sousa's being sent to our laboratory to be played on our records before the sheet music was out. There never was a time from then until now that Sousa and his band have not made talking-machine records, for which they have been liberally paid; and my company has spent thousands of dollars and have distributed millions of circulars advertising Mr. Sousa's marches.

Mr. SOUSA. But I do not want your advertisement.

Mr. CROMELIN. I know; but when you say that the statement referred to is not true, I wish the committee to know that I was here in Washington at the time, and I know whereof I speak. I do not think that Mr. Sousa, on reflection, will deny what I have stated.

Mr. SOUSA. I will not deny that my band played for their records, but I never was in the laboratory of the phonograph company in my life.

Mr. POUND. The distinction is that Brother Sousa's band goes and plays, but that he does not go in person. Now, referring to Mr. Zimmerman, the musical director of the band here in Washington, and a somewhat well known composer, I will say that, finding himself unable to remain here, he sent me his card, which I hold in my hand, with the request that I say to this committee that he believes, and that it is his opinion as a composer and band leader, that the advertisement derived from the reproduction of his music on instruments is of far more benefit to him than any small royalty which he might get. Mr. WEBB. What is the name of the gentlemen?

Mr. POUND. Mr. John S. M. Zimmerman.

Gentlemen, we have been in this business and we have built up a great industry. So far as intellect is concerned, I think there is a lot of nonsensical sentiment in this discussion here. There is no business, no class of business, in this country which has developed a keener competition, brighter genius, than the automatic and mechanical music business. The man who invents those machines is an intellectual genius,

an intellectual giant. He is entitled to his protection just exactly as much as the composer is entitled to his. We have gone along these lines believing, and the law of the land tells us we have a right so to do, that we have a right to be in this business. We have built great factories, and what we object to here primarily and essentially is now, when they have failed in every other way, when the Eolian Company in the contest for industrial supremacy, in this contest of brains against brains, has been falling behind, if you please, a little, not hardly able to keep up in the struggle for commercial supremacy-what we object to is to then have them resort to this legislation. They set aside a fund in March, 1902, to organize and create sentiment, to institute litigation, procure legislation, and to introduce a bill in Congress. say to pass this bill you not only take this property from us and destroy our vested rights, but you do more than that. We have paid to the United States Government hundreds of thousands of dollars in these inventions. One of my clients has practically spent $100,000 along this line. He has 90 or 100 patents. We have been told by this Government that we were protected in that, that when we got those inventions and paid the Government for the patents upon them the law said we had a right to reproduce this music and put it on the market and sell it.

The CHAIRMAN. That is the precise question I ask you.

I

Where is

the provision in this bill that does deprive you of any existing property rights that you possess?

Mr. POUND. Because to-day we have a right to reproduce this music. The CHAIRMAN. Music not yet composed?

Mr. POUND. Yes; any music as it is composed. We have a right under the law of the land as it stands to-day to reproduce that musicpast, present, or future. This bill says to us that we can not reproduce that if some fellow tells us we can not. The argument is made here that this is a restriction of property rights. I do not take it so. You and I have not the right, under the law of the land, for instance, to indulge in the retail sale of liquors. The law of the land says you have not that right, but it goes on to say that if you pay a certain sum of money, if you get a certain number of consents, if you keep 200 feet away from a church door, from a court of justice, from a schoolhouse, etc., that then you may have that right. There is no property right which, in the full meaning of the term, is absolutely exclusive; that is, exclusive as to all conditions and free from covenants. Such a thing in this age of business development, this magnitude of enterprise we live in, could not be possible. Following along that thought, I believe it is suggested by the professor of theory in the Cosmopolitan School of Music in Chicago and by other noted musical critics and authorities that, as a matter of fact, these brains that compose the popular music of to-day do not originate anything. I believe it is contended that there is not 5 per cent of the music brought out to-day that is absolutely new. One illustration that was used in the discussion is that famous song of "Annie Rooney," which was so popular a short few years ago. That was absolutely taken from Beethoven. To be sure it was made to increase, made to run faster, but the melody is there, and that can be followed out by those competent along that line, and similarly it will be pointed out to you to-night by one of my associates in reference to the music of one of these gentlemen who have asked you to pass this bill, and he will take up some of our most

prominent successes and show you that they were published seventy years ago in Germany.

Mr. FURNISS. "Annie Rooney" is not copyrighted. It has always been in the public domain.

Mr. POUND. That does not touch the question. There is one other point. In no other country in the world is there any such law as is proposed to be enacted here. You are making and creating an absolutely radical departure from all established law and custom. here the German law. Reading from section 22, page 9:

I have

Reproduction is permitted when the musical composition is, after publication, transferred to disks, plates, cylinders, bands, and similar parts of instruments for the mechanical rendering of pieces of music.

There is not any country to-day, if we except Italy, where this question is still undetermined. There is not any place in the world which gives any such right as these people ask for here. And we submit that the animus of this matter, and the contradiction of the theory that this is in behalf of the musical composers, is amply shown here by this contract which has been offered in evidence this afternoon. When the Music Publishers' Association sent their paid attorney here to stand in front of you and say he comes here as their attorney and in behalf of the musical composers I think it should be taken with a grain of salt.

Mr. BURKAN. I do say that. I am here in behalf of the musical composers.

Mr. POUND. When he says this, in the light of that contract, what is the animus, then, behind the proponents of this bill? My contention is that we ought not to be turned over to the mercies of this monopoly. As one of their gentlemen remarked here the other day in private conversation, "Why, inside of a year we will have you fellows crawling on your bellies, where you belong." Certainly they would.

Mr. BURKAN. Who told you that?

Mr. POUND. I will give the committee the name if it is desired.
Mr. HEDGELAND. Mr. Leo Feist told me that.

Mr. POUND. I do not care to mention any names. I am not going into that argument; but it does seem to me that the proper solution of this question as it is presented to us here now, and the fact is, that this bill as it is should not be passed. I believe we are all sincere, more or less, and I believe this measure as it is before you should not be enacted. I believe the only proper way of solving this question is to separate the musical composition part from the other portion of the bill altogether. Then let us all come in here and agree on a reasonable and proper measure, and we will meet these gentlemen and agree to any bill which is proper and which properly safeguards our interests. This bill does not.

We are getting rather tired these days of these large combinations and trusts and monopolies, and I tell you that the people who suffer because of these combinations in restraint of trade are always the people of the homes. The schoolboy, reading history, reading of the defense of the Pass of Thermopylæ, fires himself with emulation and ardor as he reads how the blood of those three hundred added itself to the flow of that reddening river, and afterwards in later life, in the broader knowledge of manhood, it comes to him that beyond and behind Thermopyla lay the homes of a kingdom, and that it was not

the sacrifice of life there, it was not the splendid, indomitable, physical courage displayed there which was the moving spirit that animated it all, but it was the homes that lay behind Thermopylæ. That is what there is to this bill. It is iniquitous, it is wrong, and is especially iniquitous and especially wrong in view of these contracts that we have shown to you. This concern, a combination of gentlemen who would come here and ask at your hands a radical departure from all existing law and custom, would ask you to put in the statute books of this land a law giving them something which they have not now, which they have not either by law of equity or custom or the law of statutes, should come here with clean hands. They should not come here tarnished by an attempt in advance to create a monopoly based upon your law. The paragraph said, "As may be provided by statute." I believe that the automatic musical instrument is an educator. I believe that it does very much indeed for the music-loving people, about whom our good friends have talked to you here. They profess great interest in the public and in the cause of musical education, but it seems to me that the public is the one and the sole element which has been omitted in their consideration. It is a very common thing, my clients tell me, to have people come into their establishments and ask them to have some piece played by one of these mechanical instruments, and for them then to buy the sheet of music so that they may take that home and learn it upon the piano, first getting the piece played upon the automatic instrument to see how it should be played. One of our friends here, one of our composers, who to-day is very active in asking you to support this bill, frankly states that one of his successes was known and called for and demanded all over the country because some talking machine had put it out.

Mr. SOUSA. Will you add the rest of that statement?

Mr. POUND. Yes. The rest of it was that you marveled why it was that in this tour, when only 200 copies of the piece of music had been sold you found this demand to have it played. People wanted to hear it, to hear what it was.

Mr. SOUSA. Exactly.. I composed it.

Mr. POUND. And that finally you asked them and you were told that they had heard it on a phonograph or in some mechanical reproduction.

Mr. SOUSA. Exactly, and I was not paid for it.

Mr. POUND. Now, I submit, gentlemen, that there is more to this than this mere question of sentiment toward the composer. The composer is now getting much benefit from the mechanical reproduction of music. It can not be claimed by any serious minded man that the more you send out and advertise a piece of music but what the demand for that in the sheet music form is going to become greater. Why, the Eolian people themselves publish a catalogue of 9,000 pieces of music. Every one of these gentlemen are continually advertising all their music, of course, but they find as I say that the playing of this music is its own best advertisement.

The CHAIRMAN. Mr. Sousa complained just now saying that you did not pay him for it. Does your company object to paying Mr. Sousa for his composition used in your machines?

Mr. POUND. If you will pardon me and permit me to answer that a little later in my talk, I would be pleased to do so. It is the greatest utility for the greatest number that we contend should be considered.