evasions for continuance of the mischief and denial of the composers' rights followed the enactment of that law.

Under the Constitution, the only person in whom Congress is concerned is the composer. He is the one who is referred to in the Constitution; and he is the one who is referred to in the statutes which have their source in the Constitution. It is not the publisher, it is not the mechanical reproducer, it is the composer-the man who creates the work, who, by the sweat of his brow, creates and gives life to thought, who leads in the cultural and educational development of the Nation, that is the concern of the Constitution and the statutes. He is the one who, by a denial of his rights, suffers most and gets least out of their recognition. He is exploited by all who put to commercial use his intellectual labors.

Unfortunately, God has so endowed inventors, authors, and composers that they can not take care of their own business affairs in an efficient manner, and they must have either lawyers or commercial agents to represent them. As most lawyers have not the acumen and judgment of business men, authors employ commercial agents, publishers or brokers to carry on their commercial transactions. At these hearings, you rarely see the composer. He is out in the field of speculation, trying to earn a living, writing and creating, and doing the things which make for the betterment of mankind. His commercial agent, the publisher, generally, appears at these hearings, argues for him and does his best to present his principal's side of the argument.

What has happened in these last few years in the realm of sound reproduction and dissemination? Along came this wonderful new mechanical age which gave us the motion picture; and a new gigantic industry picture making, distribution and exhibition, which grew and prospered into tremendous proportions without the aid of a compulsory license scheme, whereby a producer could go ransack and appropriate from the field of literature and the drama anything that he desired at a fixed price. The industry thrived, notwithstanding the fact that the motion picture producer must go into the open market, bid for and purchase a story, a play, a novel, that he desires to reproduce, and pay the price demanded by the author, under the principles of the right of freedom of contract and right of bargaining free of legislative fiat. The industry is to-day, I believe, the fifth in size in the world. It occupies a very enviable position, and has great resources, power, prestige, and great wealth, in large measure no doubt due to this freedom of contract. Along comes the most recent development of science, the so-called talking picture, or a motion picture produced in sound synchronization.

Unless there be music, there can be no sound, or talking picture. Music is the very essence, the very life of the talking picture. Congress has not been deluged by the plea of right of accessibility or right to use the composer's work in sound pictures under a compulsory license scheme.

Motion-picture producers (though music is the very essence of their industry) from the outset, were reconciled to the notion that they must deal with the composer for his songs as they do with the author for his novel and the playwright for his drama, under the principles of barter and trade, and not under a system of a governmental, paternalistic price-fixing compulsory license scheme. Even

under existing law, the composer absolutely controls the right of public performance for profit of his work, though the performance is mechanical. Motion-picture producers may not produce sound pictures wherein songs are used, without the composer's license.

I may say to you here that it is a Godsend that this has been the law. When Congress enacted the present compulsory-license scheme, it did not extend that scheme to the right of public performnace for profit.

Poor Victor Herbert had often stood before this committee, protesting loudly and vigorously against the appropriation of his fairest works by mechanical-instrument producers, without his leave or license, and then against the iniquitous compulsory-license scheme. He came down here for every hearing, and fought for the rights of the authors and composers. He has passed on, but his works live in the hearts of his countrymen. I have been able to sell for his estate five of his operas for mechanical reproduction in the form of sound motion pictures. I set a price of $50,000 per opera for a 10-year license of his works; we sold Algeria, Babes in Toyland, Madamoiselle Modiste, Fortune Teller, and Naughty Marietta, for $50,000 per opera. Do you suppose that if the 2-cent royalty license scheme of the law extended to sound motion-picture reproductions I could have secured for Herbert's two children and his widow, $50,000 for a 10-year licence for each opera? What's more, these companies willingly paid these prices for them. The competition among the producers to get these rights is very keen, and they fight hard to get favorable consideration.

I am now also representing the estate of Reginald de Koven, a man who wrote 38 operas, among them, "Robin Hood," a classic in American musical literature, "Red Feather," and thirty-odd stirring American operas. To-day that man's widow is in a position to profit handsomely from her husband's labors, because Congress was not moved in 1909 to extend this compulsory license scheme to the right of public performance for profit. In its wisdom the Patents Committee was not led on by the cry of monopoly to open wide the right to the mechanical use of composer's works upon a price-fixing scheme. Bear in mind that before this very committee efforts were made to open the floodgates to the use of music for radio broadcasting and in motion-picture theaters, in dance halls, restaurants, and cabarets and to take away from the creators the right to control the public performance for profit and place that right on a fixed pay royalty basis; but you were unmoved to all clamors, pleas and dire predictions. Your clamping down tight the lid against the extension of the compulsory license scheme to public performances, has meant a great deal for the widows and orphans of composers and for some of these old composers, whose recent works do not receive the favor of the public as did their old. Let me tell you, there are old men in that American society who, in their heydey wrote marvelous melodies, the song hits of the day; but old age has crept on, a fickle public's fancy has wandered off to newer tunes. Five thousand and six thousand dollars a year from the society enables them to keep body and soul together and to live in respectability. What a contrast between the fruits of a compulsory license scheme that reduces to beggary, and the sacred American doctrine of the right of freedom of contract, that takes care of the aged, infirm, and impecunious composer, his widow and orphans.

I have been appearing before this committee on this matter since 1904. It has been a labor of love. In court proceedings, it is a matter of record that I received but $2,800 as my compensation for the services I rendered to the composers during the long and bitter campaign that resulted in the act of 1909. I stood up for that little group of song writers and gave up some four or five years of my young life in that struggle against rich, well-entrenched interests-and it was the pleasure of my life. I am still fighting for these men. These are the men for whom I am here arguing to-day. There is something more than money that brings me here. I am trying to vindicate a principle. I have been consistent in my legal position on this great question. I have never wavered, deviated, or faltered. I said to you in 1904 what I repeated to you in 1909, and what I urged in 1926 and reiterated to-day. I have been consistent all the way through, that the compulsory license scheme was arbitrary class discrimination, in the highest degree, against composers as a class; paternalistic, unjust, unfair, and un-American.

"Necessity is the mother of invention," the old adage says. The Radio Corporation of America, realizing that it must have free use, or so-called accessibility to the compositions of American composers for broadcasting purposes, and having no compulsory license law to lean on, simply swallows up a group of publishing houses controlling powerful catalogues, and by a shake of the wand there appears the Radio Music Co., a subsidiary of the Radio Corporation. Can you remember how the broadcasters talked to you about the dire need for free music for broadcasting; that a broadcasting station without music was like a refrigerator without ice; that if the compulsory license law was not extended to the right of public performance, that all the stations would go out of business and the shut-ins, and the poor farmers and the arctice explorers would be denied the cheer that comes from radio broadcasting of music?

Mr. PERKINS. We received 25,000 letters on that subject.

Mr. BURKAN. What happened? The Radio Corporation of America just went into the market and swallowed up two of the largest music publishing houses in America. In some of the broadcasting stations there are tie-ups with interests that have music publishing alliances. Here is a very reputable, very energetic group of young men, the Warners, who have made a marvelous success of the motion-picture business, who started without a dollar and built up a tremendous enterprise. They are entitled to their success because it was through their hard labor, genius, energy, and skill that they built up this marvelous organization. They are called the "miracle men" of Broadway; and these "miracle men," knowing well that they must have for their sound motion picture the latest songs of America, take over, lock, stock, and barrel-you heard the list-M. Witmark & Sons, T. B. Harms & Co., Jerome Remick & Co., and seven other concerns; the bulwark of the music publishing industry in America. What have we read in the newspapers the last few days? The Brunswick Co., the second or third largest manufacturer of records in the world, is now in negotiation with the Warners for absorption by the Warners of its business; the Famous Playes-motion-picture producers-bought a half interest in the Columbia Broadcasting Chain, the second largest system of broadcasting stations in America-Metro-Goldwyn-Mayer, the second largest producer of motion pictures, controls a music-publishing business.

William Fox and his companies have organized a music publishing business. Indeed, there is not a single one of these organizations that is not in the music publishing field, either directly or through subsidiary affiliations. Why their anxiety to enter the music publishing field, directly or through corporate alliance or affiliation? Why these mysterious negotiations? What's going on in the field of mechanical reproduction of music? You are entitled to, and should know the whole story to have all the cards laid on the table, in the language of Mr. Buck. Science has developed a three-in-one combination for mechanical sound reproduction. The device looks like a regulation Victrola or Panatrope cabinet with three compartments. One compartment is a Victrola, or a phonographic arrangement on which you can play disks, using for such purpose ordinary commercial sound. records; the second compartment is a regulation broadcasting and receiving set; the third consists of a miniature motion picture and sound projection machine. To project sound pictures, you lift up the top of the cabinet vertically, on the inside of the lid of which is a silver screen; you pull out a little shelf from the cabinet, on which rests a mirror. You then draw out what appears to be a conical flashlight, but is in reality, the projector. By pressing a button or lever, the electric current is released, the picture is projected upon this little mirror, which in turn reflects it to the screen, and thus you have a sound motion picture for the home. The producer must have music for these home sound pictures. Music is the greatest of their problems, because they estimate that they will sell in the United States at least 20,000,000 of these so-called home projectors. You are going to have but one machine which will give you sound motion pictures in the home; you will get your radio, and you will have your ordinary phonograph record set.

These companies are all going into the business of manufacturing and selling these machines. Here, at the pivotal point, stands the composer, because, no matter what the publishers may do by way of mergers, absorptions and the like, the composer is still a free agent; he still has rights under the Constitution. He still has the right to go out and sell his labors and his efforts to the highest bidder; and he has the right of selection. Let me illustrate this: Only the other day I was successful in securing a decision from Judge Woolsey in the Federal Court in the southern district of New York, in a case involving the firm of Waterson, Berlin & Snyder. That firm made contracts with many of these young composers for the publication of their songs upon a royalty basis, in the form of bills of sale. It went into bankruptcy, having defaulted in the payment of royalties to the composers. The trustee in bankrupty tried to sell the copyrights in total disregard of the rights of these composers, and in his advertisement he offered for public sale all the copyrights of Waterson, Berlin & Snyder, royalty free. In other words, the contract between Waterson, Berlin & Snyder and the composers provided for a fixed royalty per copy for each sheet of music published, and a portion of all moneys derived from the mechanical reproduction of the songs. The Irving Trust Co., the receiver in bankruptcy of this firm, attempted to sell the copyrights free of all royalty claims, so that the buyer could thereafter utilize the copyrights, publish and sell the songs, and mechanically reproduce them, without paying the composer a penny. That shocked my sense of justice and fairness. I did not understand this modern way of business; to take a man's work upon a prom

ise to pay him a fixed sum for its use, not pay him, go into bankruptcy then have the trustee sell the property free of the obligation for its use. This was something entirely new. I appealed to this court of conscience, on behalf of the victims, in the Equity part of the Federal District Court. I applied for an injunction to restrain this receiver from selling the property free of royalty claims, and for a declaration by the court that the bankrupt had breached its contracts and had repudiated its contracts, by going into bankruptcy, and by not paying the royalties, and that the copyrights should be returned to the composers. Judge Woolsey so decided. He held that these composers had not sold outright their creations, that the publisher was simply a trustee for these men; that the property was theirs; and that when the publisher went into bankruptcy it repudiated its contract; that these composers were entitled to the return of their works and their copyrights therein; and he restrained the trustee from making the sale.

Now, as to the Brunswick Co.-I venture a fairly good prophecy you will soon read an announcement of a merger, consolidation, or combination of some kind or other, either Warner will swallow up Brunswick, or Brunswick will swallow up Warner-somebody will be swallowed up it is either a case of Jonah swallowing the whale, or the whale swallowing Jonah. So it goes and will go along the line with all the users of musical works and the publishers of musical works.

Now, on this question of accessibility, it is very important for you to know these facts, because I think it answers completely the argument that has so often been used in frustrating the genuine efforts of Congress to do away with the pernicious compulsory license scheme. Time and again we hear the same old hue and cry of the mechanical instrument manufacturers-you will deprive the users of accessibility; they must be assured accessibility because of their inability to obtain these compositions, and you will thereby put them out of business. As I told you a few moments ago, in connection with sound and talking pictures, music is the very life and soul of the industry. Without music it can not go on. I also told you a moment ago that Congress has given to the composer the exclusive right to control public performance for profit of musical works. Therefore these users could not take, and can not take, the works of American composers for reproduction in their talking pictures. What do they do?

The CHAIRMAN: This 2-cent proposition has no application there at all?

Mr. BURKAN. No.

The CHAIRMAN. They secured accessibility by getting around a table and agreeing. Suppose this 2-cent proposition were wiped out of this law? You think they would do the very same thing, do you

not?

Mr. BURKAN. Absolutely, most assuredly. The Warners were the very first to see the potentialities and possibilities of sound pictures. They were the first to secure a license from the Western Electric Co. to use its sound-reproducing devices in talking pictures. Its subsidiary, Electrical Research Products, controls most of the patents upon the system of reproducing sound upon pictures. The Radio Corporation of America also has a system. It seems that the most