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Those contracts provide specifically for the passage of legislation which shall give them the exclusive right in music rolls and such mechanical devices.
The CHAIRMAN. When was that contract presented to your client?
Mr. O'CONNELL. I have no record of that here, and I am not going to state anything that I am not sure of; but this contract was handed to me in the city of New York on Monday afternoon last. That is the first I saw of it.
Mr. CHANEY. Is that contract like unto that which was presented a little while ago?
Mr. O'CONNELL. The same form of contract that was presented by Mr. Pound; but I want to call attention to some features that Mr.. Pound has not called attention to.
In the first place, there is no specific period of duration in that contract. It is clearly a sop to the manufacturer-nothing else—to induce him to come in. And who is to be skinned, if I might use that expression? The poor, unfortunate public.
Now, look at this: The contract provides, in the first place, that the dealer--that is, the man who sells the roll to the consumer and the owner of a piano player--can only sell it at the catalogue or list price. If he sells for less than the catalogue or list price, never again can be get any rolls from the Æolian Company.
Now, look at the discounts they take off: Fifty per cent off the catalogue first. That is the first discount to the manufacturer or his dealer. After that comes 60 per cent of what is left. Then, if he purchases 25,000 rolls in a year, he gets 10 per cent additional off. If he purchases 50,000 a year he gets 15 per cent off. If he purchases 75,000 a year, he gets 20 per cent off, and if he purchases 100,000 rolls a year, he gets 25 per cent off in addition.
Now, see how it works out. Let us assume that there is a music roll which has the catalogue price of $5—simply take that as a round figure, so that we can easily get at the result. That is the catalogue price. That is the price a consumer must pay. Fifty per cent off that leaves it at two dollars and a half; 60 per cent off that takes another dollar and a half off, leaving it at $1, and the 25 per cent additional rebate taken off leaves that at 75 cents. Now,
Now, do you see the sop to the manufacturer and the dealer? They say, "Now, we give you a roll for 75 cents that you must sell to the public for $5. See the tremendous profit you get? Now, it is to your interest to come in under that and take it and keep it.” That is the way they think of the rights of the public, Mr. Chairman.
I do not need to go into the subject that as a matter of fact the composers
had nothing to do with the framing of this bill. . I think that is amply proven before you.
Mr. WEBB. Mr. O'Connell, just a moment. Have you any information as to how many of the members of this Music Publisher's Association have signed this contract with the Æolian Company?
Mr. O'CONNELL. This present contract, sir, that was offered in evidence here is not a contract with the Music Publishers' Association at all.
Mr. WEBB. No; I do not mean that contract, but the contract we have had here before.
Mr. O'CONNELL. No, sir; except as I have heard it stated here; and in the nature of the thing it is hardly susceptible of proof by us.
How can we prove it? We can not do it. They are not telling those things. We found this by accident. I think it has been said here to-day that 52 of them have signed. I think somebody asked Mr. Bowers if 75 had not signed. Mr. Bowers said it was not as much as that. Somebody asked him again if a great many of those contracts had not been witnessed by him, if he had not gone out and gotten them, and he said he had not gone out and gotten them all, but he had gotten quite a bunch of them, which is probably true.
Mr. WALKER. At one time, day before yesterday, Mr. Bowers said the number was about 80, here in this room.
Mr. WEBB. I did not know about that; but there are only 50 members of this association, or 52, are there not, Judge?
Mr. WALKER. I think the members are much more numerous than those on that list.
Mr. CHANEY. But that list was given to us as the whole number.
Mr. WALKER. Yes. Well, Mr. Bowers said there were about 80 contracts. He said that here two or three days ago.
Senator Smoot. There must have been some without the association, then.
Mr. WALKER. Yes; some must have been outside of the association.
Mr. O'CONNELL. Now, Mr. Chairman, I have stated here a couple of times that the only composers who have been present here, who were represented in any way, were Mr. Sousa and Mr. Herbert. I understand that Mr. De Koven was represented by some counsel here yesterday. Now, I am sorry that Mr. De Koven or his counsel is not Here to-night, because I shall break in here on a subject which will probably interest you very much, and will show you that the composers, notwithstanding all they may say, are not the angels that they would make themselves out to be.
In other words, how are we to be protected—the cutters of music, the manufacturers of players, pianos--in regard to a piece of music which, we will say, was originally composed somewhere in Europe seventy years ago, and then again, a few years ago, was originally composed” in America and copyrighted? [Laughter.] Where is our protection going to come in? Is that in the public domain or not? Perhaps after a long fight we will be able to beat them on a question of that kind. But there is no provision of the law which revokes their copyright in case it is not shown that they are original.
I have here before me a piece of music which I got from Schirmer's house, to which our friend Mr. Tindale belongs--a very old piece. It was copyrighted by Schirmer in 1884. I discovered on looking it over that really all that was copyrighted by Schirmer was the translation of the words. Now, I find a note in here to the effect that that piece was composed by a man of the name of Gastalden, away back some thirty years previous, and the name of the piece then is “Musica Proibita "__Forbidden Music."
I have another piece here, copyrighted some years afterwards by this same house of Schirmer, and it appears here copyrighted under the title of “O Promise Me." [Laughter.] “O Promise Me" and
60 “Musica Proibita” of fifty years previous are one and the same piece of music. The theme is the same, but dropped one tone. There is more in “Musica Proibita” than there is in “O Promise Me," but there is nothing in “O Promise Me” that is not in “Musica Proibita.”
Mr. TINDALE. May I ask the gentleman one question, with the chairman's consent?
Mr. O'CONNELL. I do not mind your taking up a little of my time.
Mr. TINDALE. I would like to ask you why people buy 10,000 copies of “O Promise Me” and they buy scarcely a dozen copies of “Musica Proibita," if they are one and the same piece?
Mr. O'CONNELL. Because “O Promise Me” is well advertised.
Mr. TINDALE. No, sir; we never have advertised it except to put it in our catalogue
Mr. O'CONNELL. The graphophone, the gramophone, and the musical-instrument people have been advertising it for you for a good many years. [Great laughter.]
Now, another question: Whence comes this demand for turning mechanical devices into the copyright field? Have the composers demanded it? I have not seen any demand anywhere from them. Mr. Sousa has been here, and he has been a bost in himself. Why, gen
a tlemen, if this bill goes through in any form, the music publishers and the Æolian Company can not possibly do enough for John Philip Sousa, with his magnificent personality, his suave
manners, his keenness of intellect, with his ability as a cross-examiner of the various speakers who have spoken on our side, and with his never failing to get in, “Did you pay for it?” [Great laughter and applause.]
Mr. Sousa, did the publisher of the Washington Post March pay you anything, ever, after he paid you the first $25.
Mr. Sousa. Thirty-five, sir.
Mr. O'CONNELL. Thirty-five, was it? You were $10 ahead, then. [Laughter.]
Mr. Sousa. I should like to say, Mr. O'Connell, that these two compositions are not the same.
Mr. O'CONNELL. Take the theme and the very first bars.
Mr. Sousa. I have only met Mr. De Koven once in my life. The first measure of this “O Promise Me” and “Prohibited Music” begin just the same, but the harmonic structure after that is different. As a composer myself, and I hope an honest one, I would not charge Mr. De Koven with plagiarism in this thing.
Mr. O'CONNELL. The difference is in the harmonics. Is the theme the same?
Mr. Sousa. The first measure is identical.
Mr. Sousa. No, sir; I could prove this if I had a chance. If you could put two pianos here, and a singer for each one, and have them sing them, I will assure the gentlemen here that you will find discords in the two things. That is, one will be different from the other--for instance, I would like to explain that if you will allow me just one minute.
Mr. O'CONNELL. How about my time, Mr. Chairman?
Mr. SOUSA. Just a second. I wish I had a fiddle here, or a piano. I can not sing, or I would do that; but you would not understand it if I did, because I have a horrible voice.
The introduction, first of all, is entirely different--not at all alike. The first measure is the same, exactly. In the second measure the
first note is wrong. The third and fourth beats of the second measure are entirely different. The next measure is entirely different again. The chord forming the first end of the first strain is entirely different in the two compositions. One is the dominant chord and the other is the tonic. I would never say that one of those compositions was the same as the other.
Mr. LEGARE. There is a good deal in one that is in the other, though. [Laughter.]
Mr. Sousa. Well, I would not say—that is a very bold statement, and I do not think it would be sustained by any musician in the world-that these two compositions are alike. I would not like to do it; not on my oath.
Mr. WEBB. Is there a striking similarity between them?
Mr. Sousa. They are both ballads. I have never seen the “ Musica Proibita” until to-day. “Oh, Promise Me,” I know very well. But I would never say that Mr. De Koven took one composition from the other.
Mr. O'CONNELL. I offer both of them in evidence, and it is likely that there are many gentlemen on the committee with a musical education, as far as piano playing is concerned, so that you may try them both out.
The CHAIRMAN. You do not ask that they go into the record, I assume. [Laughter.]
Mr. O'CONNELL. Well, you can not put them in the record, but I offer them in evidence.
(At this point Mr. Paul H. Cromelin sang for the committee the first measure of each piece of music referred to by Mr. O'Connell.)
Mr. CROMELIN. Now, what is the difference? Great laughter.]
Mr. Sousa. Mr. Chairman, I can prove to you that these are different if you will allow me to do it in my way. Will the stenographer take down the syllables?
Mr. O'CONNELL. I am afraid that the committee and the stenographer will not understand your highly technical description as easily as they did Mr. Cromelin's practical illustration.
Mr. CROMELIN. Have I sung them correctly, Mr. Sousa?
Mr. Sousa. The first measure is identical. I told you the first measure was, but I tell you one departs from the other there. I would never say that one was the other. I can prove it, Mr. Chairman, if you will give me four minutes.
(At this point an informal discussion ensued among a number of gentlemen, during which it was stated that the similarity between the two pieces had been talked about for some time.)
The CHAIRMAN. You may proceed, Mr. O'Connell.
Mr. O'CONNELL. Now, I want to show also, Mr. Chairman, that, as a matter of fact, if this bill is passed in its present shape, it will not be to the benefit of the American composer, but to the benefit of the foreign composer.
In the first place, quite a percentage of the publications used in piano-playing machines, particularly, comes from the pens of foreign composers. This is not true to so great an extent in the talkingmachine records, where, as I understand, a large number of pieces which come under the classical name of ragtime” are put out day after day and week after week. We do not play very much ragtime in these automatic players.
The rule laid down as to foreign composers is this: That they shall have the same rights as American composers. That is absolute. Of course, there is an alternative provision there, which amounts to nothing, but it is laid down that they shall have the same rights in this bill as American composers have in this country. Now, you take England
Mr. CURRIER. What section is that? I would like to turn to that. I had it a moment ago.
Mr. CROMELIN. Section 8 b. Mr. O'CONNELL. Yes; here it is: When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens
And there is an alternative-or copyright protection substantially equal to the protection secured to such foreign author under this act.
Mr. CURRIER. Just a moment, Mr. O'Connell. Suppose you should strike out the word “on” before “substantially" in the first line.
Senator Smoot. Page 6?
Mr. CURRIER. Page 6; then strike out the whole of the second line; strike out the words " the same basis” in the first line and all of the second line, so that it would read, “the benefit of copyright substantially equal to the protection secured to such foreign author under this act."
Mr. O'CONNELL. No; the other provision is what ought to go in,
Mr. O'CONNELL. Exactly; you are giving him the same rights as your composer has here, whereas his country does not give our composers such rights as we give the foreign composers.
Mr. LEGARE. You want reciprocal rights? Mr. BONYNGE. We want to give him the same rights as his country gives us.
Mr. O'CONNELL. As his country gives us; yes.
You have had it proved to you by Mr. Cromelin, I think, beyond any question of a doubt, that the use of these reproductive devices did not injure the sale of sheet music at all, but, on the contrary, helped it; so I shall not touch on that question. Neither shall I go into the question of statistics, which he covered very fully. But there is a very important point for you to consider and that is this, What will be the result on inventive genius as applied to perfecting those reproducing machines, or perfecting automatic piano-playing machines or the rolls used in them? Will it not put a great damper on genius in
far as it is directed toward such inventions? What is there in it for them? If, as a matter of fact, their use of those reproductive mechanisms is absolutely restricted and controlled by somebody else, what is going to happen? Is a man going to spend his time and his brains and his labor and his money in trying to perfect those machines,