Lapas attēli
PDF
ePub

ducing records and not accounting. How do the legitimate producers feel about the protection they should have because of the competition of these fly-by-nights?

Mr. BURKAN. I may say to you that that is a very serious situation and they find themselves in this position at this moment in connection with their broadcasting business. The Radio Corporation, or the Radio Victor Co., now that they have united, in connection with their broadcasting engage Mr. John McCormack to sing on a stated occasion. They pay McCormack $5,000 for the performance. Other broadcasting stations in competiton with this performance given personally by McCormack will take a Victor record and broadcast from the record. That is a very serious species of unfair competition. The Radio Victor Co. secured McCormack's services, pay his price, and at that time and on that occasion every small irresponsible broadcasting station issues an announcement "To-night we will broadcast John McCormack in such and such numbers" using, of course, a Victor record, which they can buy for 75 cents.

They suffer just as we do; and in every line of endeavor there is always some one who is trying to get rich through the labors of other people, who tries to reap where he does not sow; and that is the occasion of our being here. We are trying to prevent men from reaping where they did not sow. We are trying to protect the sowers. Take another situation: A concrete instance where irresponsible manufacturers copied their perforated rolls from masters produced by the Aeolian Co. at great expense. The Aeolian Co. claimed a right of property in its rolls on the basis that their roll represents a money investment, labor, organization, intelligence, skill, and industry. That all these factors entered into the creation of the roll and their competitors had no right to reproduce its particular rolls; one of the judges in the district court of New York sustained them in that position. The theory of the decision was that while under the statute upon payment of 2 cents anyone could take a composer's work and reproduce it; the statute could not be extended to embrace the right to go to the Aeolian Co.'s rolls and copy them; their competitors would have to go to the original work and make their rolls with their own organization. So they complain bitterly when you try to take anything from them. It is the old story-whose ox is being gored. When it comes to our product, they say: "We ought to have accessibility." When it comes to their records they say: 'We pay Mr. Caruso 25 cents per record; you must not copy Caruso's voice." To carry out the analogy a little further, the Brunswick Co. has a contract with Mr. Jolson. They pay him a very substantial sum of money. You try to copy a Jolson record, and see what happens to you.

Instead "accessibility" they claim "exclusivity."

Mr. Buck. Mr. Chairman, apropos a question Mr. Perkins asked Mr. Burkan—it is a very important question and very pertinentregrading the treatment of the unknown author. I would like to put into the record the fact that the most sensational numbers written in our business in the past year were by a boy named Brown, the Dance of the Painted Dolls, a sensational piece of creative work in a popular vein, followed by another song equally famous, the Pagan Love Song-and to show everybody that he was made of the stuff

106215-303

that real composers are made of, he wrote a third song, called Singing in the Rain. A year ago to-day that boy was absolutely unheard of. I wanted to cite that as a concrete instance; and I also wanted to call the committee's attention to the fact that the gentlemen I have the honor to represent and speak for as an author represent every quality of music-classical, popular, operatic-every quality, such as Herbert's works, those of Charles Wakefield Cadman, who wrote At Dawning; Carrie Jacobs Bond, who wrote At the End of a Perfect Day; Irving Berlin, one of the greatest popular composers that ever lived, Charles K. Harris, Ethelbert Nevin, Reginald De Koven, Walter Donaldson, Olie Speaks-every possible type of music.

I wish to thank you gentlemen for your attention and courtesy, and sincerely indulge the hope, taking the cue from the chairman, that on the twenty-first anniversary of your letting the other fellows have all the advantage of our work, that the tables will now be turned, and that you will give us a chance for a while.

The CHAIRMAN. Does that conclude the presentation of the proponents, Mr. Buck?

Mr. Buck. That concludes our presentation in support of the bill. The CHAIRMAN. The committee will adjourn until 2 o'clock. (Thereupon at 12.30 o'clock p. m. a recess was taken until 2 o'clock p. m.)

AFTER RECESS

The committee convened at 2 o'clock, the Hon. Albert H. Vestal (chairman) presiding.

The CHAIRMAN. The committee will come to order. Who has charge of the presentation of the speakers?

STATEMENT OF HARRY MEIXELL

Mr. MEIXELL. Mr. Chairman and gentlemen of the committee, as general manager of Music Industries Chamber of Commerce, 45 West Forty-fifth Street, New York City, I am here as the representative of an organiztion which is composed of manufacturers and of dealers in musical instruments and parts thereof and musical rolls and records for reproduction on musical instruments and phonographs.

My approach to this proposition is relatively new, yet I am going over all of the material which has come out of these various meetings. I sometimes think that this relatively fresh view of mine has enabled me to single out the salient features of the entire proposition. This conclusion is more or less borne out by the discussion we had here this morning, and with your indulgence I want to refresh my own mind and the minds of the others present on the real parties in interest in this whole proposition.

In my view prior to the introduction of sound films there were four parties in interest, each separate and distinct, and each one independent of the others.

First we have the composer. The second party to the proposition is the publisher. The third party is the manufacturer of records or rolls and, of course, the manufacturers of the instruments which play these rolls and records. The fourth party is the public that is the purchasers of the products of the first three parties.

In viewing the situation from that standpoint and taking into consideration_these four separate and independent parties it is our feeling and I do not see how we can escape it-that the composer of the musical composition always has had, now has, and always will have the right of independent bargaining with some one who is willing to purchase his product.

Mr. LANHAM. And is that quite right? Is he alone in that regard? Mr. MEIXELL. In answer to your questions let me take a hypothetical case. Suppose I should compose this evening a beautiful piece of music, and to-morrow morning it appears to me that I can possibly sell that piece of music, is there anything to prevent me from going to you or to anyone else in the world and driving the best bargain possible for the sale?

Mr. LANHAM. You mean, to turn the copyright over?

Mr. MEIXELL. Yes, sir.

Mr. LANHAM. With any other article, like a story, I can make what terms I please and retain my copyright.

Mr. MEIXELL. There is nothing in the world now under the particular law whose amendment is now under consideration to prevent me from driving the best bargain I can with you or with any other publishing house for the sale of my composition.

Mr. PERKINS. I think there is. And I think the limitation that is granted in the law that anyone can take that copyrighted composition and reproduce it at 2 cents is a limiting factor. It is a pricefixing factor that might enter into any bargain you may enter with me. Mr. MEIXELL. Then the contention is that the 2 cents per copy is the factor which limits the composer?

Mr. PERKINS. Suppose you were to write to-night the most beautiful piece of music ever conceived by the human mind, and I operate a plant; can not I reproduce that to-morrow at a cost of 2 cents per record?

Mr. MEIXELL. Not until the surrender of the copyright.

Mr. CHAIRMAN. You do not seem to understand the question. Mr. MEIXELL. Until I sell that copyright I do not see how any one else can make use of it.

Mr. LANHAM. Is it the custom among these mechanical producers to get the copyright?

Mr. MEIXELL. No, sir; but I contend that the composer may approach the mechanical producer if he wishes. Customary however for him to approach the publisher, and the publisher in turn makes his deal with the phonograph manufacturer or the piano; roll manufacturer.

Mr. PERKINS. I may be wrong as to the law of 1909. Suppose you write a piece of music at any time, and you copyright it, and you publish it to-morrow. I am a mechanical reproducer; can not I take and make it at 2 cents a record?

Mr. MEIXELL. My contention is that until I, as the owner of that coypright have entered into a contract expressly providing that the manufacturer of phonographs or musical rolls may use it for 2 cents a copy, you can not so use it.

Mr. LANHAM. You said a moment ago that if a man wrote a song, that man is free to bargain as the composer with whom he pleases. Now, unless you see the publishers how does that avail him as far as that end of the business is concerned?

Mr. MEIXELL. In the event that the manufacturer of the records or of music rolls, wants to bargain with me, he now has, under the law, the privilege to bargain. In other words, the right to bargain, which is inherent in every one of us, is not destroyed by the present act. Mr. LANHAM. Not with mechanical goods? Mr. MEIXELL. No, sir; I do not think so. If I went to the Victor Co. to-morrow and said: I would like to enter into an agreement to sell you the right I have in this composition, we can make the deal; and it would be the same in case I had gone to the Brunswick or to the others.

Mr. LANHAM. As a matter of fact, do the Brunswick, the Victor and others buy copyrights?

Mr. MEIXELL. No. The custom of the trade is what I have said. Because one does not choose to exercise a right is no evidence that he does not possess the right.

Mr. PERKINS. One often has the rights which he can not use as no one will take them. That is an abstract right.

Mr. MEIXELL. Yes, sir. That is true. It is possible to cite a number of instances where composers have surrendered their rights to publishers for a mere pittance, out of which the publishers have made thousands of dollars. The composer sits back and sees what he has surrendered for $25, $50, or $100 bringing in thousands to a publisher.

Mr. LANHAM. Is not that outside the mark for us? We can not legislate to give judgment or commercial sagacity to composers or to any one else. We can only give them a fair opportunity. The crux of the matter before this committee and which this bill seeks to correct, is to take away a discrimination against the composer which does not exist against any one else in our whole system of jurisprudence of putting the price he can get for his product from the mechanical company. Why is that put against him as the only one in this broad land?

Mr. MEIXELL. When we are predicating the enactment of this measure upon the desire to make superior conditions for the poor composer, I contend that is really not the effect of the bill; it is not really what the effect of the bill will be irrespective of its object. I say, that the very next day after this bill may be enacted into law, conditions would not be bettered for the composer.

The composer does not know the potentialities of his product, and he would have to continue going to the places where he now goes to drive his bargain.

And even after the enactment of this bill you will find cases where composers will surrender a magnificent production for a mere pittance, out of which production the publisher will make thousands and thousands of dollars.

We are all anxious to see this composer in whom we all have a vital interest, because we love his art and he is our bread-and-butter, have his interests considered on a sound basis.

The CHAIRMAN. You made the statement at the beginning of your argument that the composer of a piece of music has the right to hargain and to sell to-day. Of course no one will deny that the man who owns a copyright, can go and sell it to anyone else he wishes to who will buy it.

But suppose you have a wonderful piece of music, and you want to make a contract with a mechanical company and you make a contract for the records, has he a right to bragain and sell on the price he is to get for the records?

[merged small][ocr errors]

.

The CHAIRMAN. No; he is limited to 2 cents. Now, when he takes the musical composition to the publisher, the publisher knows he can not have any records made except to the extent of his 2 cents royalty. Isn't he prevented from going out and making the best bargain he can?

Mr. MEIXELL. Well, I contend there is nothing in the law as it exists to-day which forbids that man from approaching anyone and making the best bargain he can.

Mr. BRUNNER. But he is limited to 2 cents.

Mr. MEIXELL. No, sir. It only goes on that basis where it is limited to use on mechanical and musical rolls.

Mr. BRUNNER. Is it possible for him to bargain with the Victor and with the Brunswick to get 25 cents or more a roll for his product? Mr. MEIXELL. The next step in the development of the argument contemplates the effect of the enactment of this measure. A composer could sell his compositions to the Victor or to any one else engaged in the manufacture of records or rolls conveying to that manufacturer an absolute monopoly in the form of a copyright. The Victor Co. would not have to share the copyright with anybody else if you remove the safeguards of this law. I am just reasoning the thing through, and I am telling you that from our interpretation of the act as it is, and from our interpretation of this contemplated amendment of the act, that would be the outcome.

This exclusive grant from the composer passes to the publisher, and from the publisher to the manufacturer of mechanical apparatus so far as mechanical reproduction is concerned. If you enact this bill into law, the composer can go directly to the mechanical reproducer and surrender his copyright, and then the mechanical reproducer immediately gets absolute control of that copyrighted article. Mr. PERKINS. Is it not the theory of copyright and patent law that the man having the copyright or patent has a monopoly?

Mr. MEIXELL. I have not been discussing that phase of the ques tion; I merely contend that the composer of a piece of music to-day under this law, does have the right to bargain. It is true he elects to bargain through the medium of the publisher, and the two parties arrive at a figure which is paid to the composer, and then the composer surrenders his absolute right, and the purchaser becomes the owner thereof.

Mr. LANHAM. We are now discussing merely the mechanical reproduction.

Mr. MEIXELL. I wanted to get away from the contention that this bill is to bring a heyday to the composer. Our contention is that this bill's enactment will not bring such a heyday to the composer. Mr. LANHAM. It will give him freedom of contract.

Mr. MEIXELL. He has that now, except as to the mechanical reproduction.

Mr. LANHAM. That is what we are trying to give him. Mr. MEIXELL. Suppose we enact this law, and I as a composer produce a magnificent piece of music, and then go with it to the Aeo

« iepriekšējāTurpināt »