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COMMITTEE ON PATENTS, U. S. SENATE, Washington, D. C., December 11, 1906–10 o'clocka. m. The committee met at the Senate reading room, Congressional Library, jointly with the House Committee on Patents, and was called to order by Chairman Kittredge.
The CHAIRMAN. I do not know whether Mr. Mauro has arrived or not. The other one who particularly requested leave to address you was Mr. Tams, whose request was for thirty minutes on certain provisions, including these. Mr. Tams is here, returned to Washington to be heard.
Mr. O'CONNELL. Just a moment. I beg to state that Mr. W. W. Connor, of the Kimball Company, Chicago, was here the other day. He authorized me to say to this committee that he and his concern some of the members of the committee know what concern it is-are absolutely and in every way opposed to paragraph (g) or any form of it. He also instructed me to say that he personally does not agree with the royalty feature.
The CHAIRMAN. Mr. Arthur W. Tams.
Mr. Tams. I represent myself and the A. W. Tams Music Library, the Authors and Composers' Music Publishing Company of New York, the Church Choir Musical Library, Boston.
Now, Mr. Chairman, and gentlemen of the committee, I am not a lawyer; I am a simple business man, and I trust you will pardon any breaks I may make. I will be as swift in my remarks as possible. I was granted half an hour, and I will stop within the half hour, and if I have anything further to say, I will supplement it in writing. Great stress was laid, gentlemen, last week, on the necessity of public libraries and their benefit to the public. Now I wish to lay great stress upon the necessity of music libraries. I operate the largest music library in the world; I am the only real music librarian in the United States, and I am a very large distributor of music. This bill vitally affects my business. Paragraph b of section 1, with the words “to sell, distribute, exhibit, or let for hire,” will close my library and every other library.' I was told by one of the music publishers those words were put in for that specific purpose. A gentleman connected with one of the largest music publishing concerns in New York called at my office last week, and, in the course of the conversation, he said: “The Committee on Patents favorably reported an amendment last spring to section 4966 of the Revised Statutes," he says, "and we do no expect to be able to stop the rental of music to church choirs, public schools, and vocal societies,” he says, “but he said we have to put into that coypright bill some words that will stop the orchestrating of music, and that will stop the whole business. When he left my office I looked through the bill for the joker, and I find it in clause f, section 1, in the word "arrangement.'
That word also appears in section 6–"arrangements.” Now that word, gentlemen, technically in our business, means “orchestral arrangement.”
Now, I wish to go back before going to that question. There are in this country about 3,000 vocal societies, with an average membership of about 100, which means 300,000 people. There are about 20,000 church choirs, with an average membership of about 15; that is 300,000 people. And the members of the public schools, I do not
know how many—I have not had an opportunity to look at the statistics in the census, you are better posted on that than I am—but all the children in the public schools use music. On the last day of the year they give a little concert. The schools that have a small appropriation are compelled to either borrow the music from other schools or rent it; they can not buy it. That applies to church choirs. Out of 20,000 church choirs there are 10,000 so poor they can not possibly buy the music, and out of 3,000 vocal societies there are about 500 who are compelled to borrow or rent the music. One of the reasons they are compelled to rent or borrow the music is because of the enormous price that is put by the music publisher on the new works. Now, here is a copy of the Creation.
The CHAIRMAN. Mr. Tams, at some of the hearings during this session an amendment has been proposed to section (f) which will limit its application to public performances for profit.
Mr. Tams. Yes.
I will tell you why. The poor vocal society of the little country town is composed of the cash girls in the stores, and the boys in the shops or from the farm, and as they meet once a week to study a new work it takes a long time, and after three months of rehearsal they give a perform
Now, the few pennies they have they have to spend, first, for the musical director, and they have to pay the rent of the hall, and they have to pay an orchestra to give the performance, at the end of three months. Now, nine times out of ten the performance is given at a loss, but if there should be a little profit it goes to some charity or church, or the organ, or something of that kind. If there are a few pennies profit, of course it would be profit; but in the majority of cases the performance is given for pleasure only. In the case of church choirs they are never given for profit. They sing their music on Sunday for the praise of God; no profit in that. And there is no profit in the public schools. That is given in the course of education.
Senator CLAPP. Would not this suggestion relieve the church choir ?
Mr. Tams. It would relieve the church choir, and it would relieve the public schools, but it would not relieve the poor vocal societies in all cases.
Mr. CHANEY. If the poor vocal society gave a public performance of it without any idea of profit, it would relieve them.
Mr. Tams. Yes; it would relieve them in that case. Now, I come back to this Creation. There is a work of 154 pages. That forms an entire evening's entertainment. That book is in the public domain. It can be printed for about 10 cents a copy, and it is sold in quantities at 20 and 25 cents a copy, but even at that figure these poor societies can not buy it. Now, here is Frankenstein, published in Belgium, 21 pages. That book, if I owned the copyright, I could print for 2 cents a book. The price is $1.50, the lowest price. With 50 per cent, and 25 off, brings it to 57} cents. That will take only ten mintues to perform, and they have to pay 57} cents for it. That is the reason that they can not buy it; they must rent.
I would like to read to you a letter I received from Paul B. Morgan, president of the Worcester Musical Association, Worcester, Mass.
This is the most important musical society in the United States. It has 400 members, and they hire the Boston Symphony Orchestra every spring, and the Metropolitan Opera House, and go at an enormous expense—thousands of dollars for each performance, yet even this organization can not go further; they have been under the necessity of renting the music. Mr, Morgan's letter reads:
Mr. A. W. Tams.
DEAR SIR: Replying to your iavor of the 1st instant, I beg to say we are in sympathy with you in the position you are taking, which will make it possible for our smaller music associations to rent copies of music which they will use. I feel I have no authority to authorize you to represent this association in the hearing before the joint commitee of Congress, which will be held in Washington on the 7th and 8th instants, but will say that in my opinion the lives of many of our smaller musical organizations will hang upon the decision which is reached in this copyright law. Yours, very truly,
PAUL B. MORGAN.
I would like to have that in the record.
The CHAIRMAN. Have you under the existing law a right to rent out that music?
Mr. Tams. Yes, the existing law says nothing about prohibiting it. I have a right to do what I like with it.
Mr. CURRIER. Why, then, did you have a bill introduced in Congress providing for a law
Mr. Tams. I am glad you mentioned that. Section 4966, Revised Statutes, was placed in the statutes for the specific purpose of
protecting dramatic productions, and musical productions, such as operas, farces, comedies, musical comedies, extravaganzas, etc., many of which I owned, and that law was intended to protect my property: The prompt book is never printed. It is always held in manuscript. But the score is always printed. For many years after that law was passed nothing was ever heard of it. I think it was put on the statutes in 1897. It was never intended to cover oratorios, masses, choirs-religious music. And the proof of that is that Mr. Schirmer, one of the largest music publishers in this country, as late as 1901, said when he was in my store: “We are very jealous of your library. We are aware you are doing a perfectly legitimate business, but we are jealous on account of the large amount of that business.” Now, if he had known about that clause, about the provision which would prevent the renting of music, he would not have said those things to me. It was only up to a year ago the publishers found out that clause was so broadly worded that the words "musical composition” could be twisted to cover everything on the face of the earth that had music in it. And they used that clause as a club over the societies. They sent circulars out which were introduced at the hearing last spring in which they went as far as they dared to under the law, holding that clause up over the heads of the choirs and vocal societies, and said to them: If you use a single copyrighted piece of music, if you borrow or hire the copies to give your performances, we will convict under clause 4966 and put you in jail. They did not use the word “jail,” as the circular was worded very ingeniously by a very smart lawyer. They said that, but not in so many words. They said under that they could be subjected to a criminal prosecution, and to relieve the societies from the music publishers using that clause as a club over these societies, I advocated the amendment which provided that the societies should have a right to give performances from hired or borrowed copies.
Mr. CURRIER. Isn't there a suit in court now?
Mr. Tams. Yes; there is. I immediately brought suit against the publishers for $250,000 damages, for intimidating
customers. I have hundreds of letters from choirs and clubs, protesting against this and asking us to go to Congress to protect them against the music publishers. Now, the music publishers have stated that the reason they objected to the societies and choirs using the music in giving performances from hired copies is that it takes away from the music composer's royalties. Now, that is not the fact. Let us see how that works. A musical society will send to a music library, to hire 100 copies of a work. The library must buy that 100 copies from the publishers and pay for it. The composer gets his royalty from that. The society starts the rehearsal and they send on to me, saying, us 25 new copies. Some of the well-to-do singers want to buy them.' I buy 25 more and send on. The composer gets his royalty for them. After a time we get another letter: “Send 50 more new copies to sell to the audience.” They are sent on. After the music is returned to me it will be 25 copies short. That is the proportion. Some of the boys and girls keep them for mementos. They have to be paid for. And, besides that, the local music stores will sell copies of that work to the inhabitants who have fallen in love with it at the performance, and that will result in 25 or 50 copies more being sold from that town; 250 or 300 copies in all from that town. Now, if the library is fortunate enough the following year to rent out that same work, it has to buy 25 more copies to complete the 100, and so the process goes around the country ad infinitum. Now, that does away with the statement that the music composer is robbed of his royalty. His work would not be heard of if it were not for the societies that hire the music. And the proof that the composer does not object to it is shown by this letter from Mr. Jules Jordan, a very well-known composer of Providence, R. I., and a very prolific writer:
PROVIDENCE, R. I., December 6, 1906. My DEAR Mr. Tams: I can not spare the book you sent, the conductor's book, for I need it at the rehearsals. Can't you send a first violin part, and I will compare the cuts in that with those in the conductor's book. I can do that to my own satisfaction, and then return the part at once. I dare say the cuts will agree, but I want to make Yours, truly,
JULES JORDAN. P. S.-C. W. Thompson, music publisher, Park street, Boston, has just issued a new mass of mine, for which you probably will have a call sooner or later from two of the societies I conduct. Of course I am willing to have rented copies used.
These composers, as a rule, are conductors of several societies, and that is their principal mode of livelihood. They do not depend on what they compose for a livelihood. That is a side issue. They compose because they have to keep their names boiling before the public. It is a great inducement to have the societies perform their works, for it is on the strength of that they sell their work to the public.
Now we come back to clause f. A gentleman called to see me and suggested there were some words in the bill that would prevent orchestration. I looked through and found this word arrangement.” Now, gentlemen, I am prepared to state positively the
word arrangement technically means orchestral arrangement. That is the technical meaning of it in our business. For years, gentlemen, the church choirs throughout the world have made it a practice on Christmas, Easter Sunday, and other festival days to give special musical services. And in order to give solemnity to these occasions they invariably use the local orchestra with the choir and the
organ. In order to use them, they have to come to me for an orchestration, which means separate music sheets. The orchestra can not play from the copies bought from the music stores. They have got to have specially prepared sheets, one for the clarinet, one for the cornet, and for the different instruments. After the performance those sheets have no commercial value. But under clause f, if this is enacted, and the choir gives its special services on Christmas or Easter, this music publisher can put in jail a whole choir, or the organist or the orchestra, and even the congregation, if they sing with them. [Laughter.] Now, there is a nice situation. But that is a fact. Now, I have been told that the publishers may say to you, We keep orchestrals on hand for the use of the choirs. They do not. They have a few, probably one one-hundredth of 1 per cent—hardly that; and if they have got them on hand they haven't enough for thé. different instruments. I have had calls for the orchestrating of the piccolo, the flute, the clarinet, the bass drum, all. It might be all the little town had, and they got it. I furnished it to them. Now that same word arrangement will affect all these people. It will affect the members of the church choirs, the members of the local orchestra, the military bands, the members of all local societies, German societies who give entertainments, and all the pupils of the public schools who give entertainments; it will affect them just the
It affects everybody in the music business. Now, I suggest, gentlemen, that in clause (b) the words “or let for hire" be eliminated. And in clause (f) and section 6 the word
arrangements” be eliminated. And in 4966 of the Revised Statutes insert the word “dramatic” after “musical” so as to read “musical dramatic productions." That will render that clause perfectly clear that it applies to theatrical performances, dramatic and musical, and not to religious music. And in section 5 insert the word "dramatic" after musical.
Now, gentlemen, we hear a good deal of what trusts are doing nowadays, but it has remained for the musical trust to endeavor, by this legislation, to penalize half the people of the United States and threaten them with the jail if they persist in giving religious services or little entertainments at night, and even the children singing in the public schools.
Mr. CURRIER. As the bill now stands with the suggested amendments it would not have that effect; it would not affect schools and church choirs; it would affect no society that was not giving a public performance for profit.
Mr. Tams. Even if that little society made ore dollar profit it would be affected. I maintain that the custom that has prevailed up to the present time should continue.
Mr. CURRIER. But the public schools and church choirs would not be affected if the amendments are adopted.
Mr. CHANEY. If this subsection (f) is to be modified, how would you modify it?