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production in various forms, printed in a book, printed in sheet music.

I won't go into all of the details. It is readily produced on the stage and today over the microphone. All of those are uses of the property.

Our Congress for many years and back in 1909 recognized this proposition: That everybody should pay his own freight. In other words, the man who dances pays the piper. So they created separate rights. One was the right to copy and publish, copy it in book form, copy it in sheet form. That was one way.

Another right was the right to put it on a phonograph record. Another right was to perform it.

Those were all considered separately because of the belief-and I think this is shown in the books-that everyone who used it for a certain purpose paid his own freight so that you don't load it all on the sheet music, and you don't load it all on the record, and you don't load it all on the theater or on the place of entertainment. Everybody pays his freight, just as if we were going from here to New York partly by train and partly by airplane and partly by bus we would pay our fare to each carrier as we went along.

There is much wisdom in that because how does the writer live? Now, Miss Whitney told you that she had a run of luck. She is a delightful person and a gifted writer. Mr. Merrill tells you that he starved until he got a break. I believe a statement appeared in one of Oscar Hammerstein's advertisements when he had a success wherein he pointed out that it was his first success in 10 years.

Mr. BRYSON. I think I heard Ed Sullivan's television program recently on which Mr. Hammerstein appeared. It was for a dozen or so years that Mr. Hammerstein didn't make a penny.

Mr. SCHULMAN. That is right. And there is more than that, sir. A writer gambles. Nobody can tell whether a song or a book or any play is going to be a success or a failure. There are plays that open and play just one night. People put money into writing books, put money into writing songs; they put their hearts and their souls into them, and they don't know whether they are going to be good or bad. So, nobody wants to pay them for it, and they gamble.

They place the song on a royalty basis. Now, what does that mean? If the song or the book or the show goes over, they collect. If it closes up the first night, 4 or 5 years of work goes right into the ash heap.

Of course, as I said, you can't load everything on one means of exploitation. If a writer has worked for years, he can't say that the printed book or the printed sheet music has to bear all of the burden, because that wouldn't be in the interest of the public, because that should not pay all of the living expenses.

Gentlemen, there is the question of economics. Writers have got to live. They have families; they have children; they have to pay rent; they have to pay the grocer, and nobody pays them when they have flops. So, Congress wisely back in 1909 provided a method whereby each means of exploitation pays its own freight-the sheet music, the recording, the public performance, each pays part of the tariff-and that is fine. That is the way it should be, and not as Mr. Raine said, "We exploit it; therefore, collect from the person who buys sheet music or collect only from the person who puts it over the air."

Everybody should pay his share of the freight, and that is what royalties are. Writers don't ask for any subsidy. They don't ask for any charity. Not one of my clients asks for that. They ask merely that they be enabled to make a living out of their creative efforts and out of the property that they create.

So that is what we are talking about. We are talking now about the question of whether the jukebox operator should pay his fair share of the freight. In supporting the bill, I am going to be perfectly candid with you. I appeared before this committee on the Scott bill, which would have eliminated the jukebox exemption completely without any 1-cent provision, because I don't believe that rates should be fixed by statute.

I believe that people should make their own bargains, and the associations whom I represent believe the same. I am going to tell you why we are supporting this bill. Now, I think that Congressman Rogers asked a very good question; that is, whether there wasn't a new right. Technically it may or may not be. But what happened back in 1909 was this: I have read those hearings minutely. I spent over 25 years of my life studying copyright and trying cases and representing people in this field, publishers and other people who have property-right problems as well as authors.

Now, back in 1909 there was a controversy as to whether a phonograph record was a copy, and there was a lot of hullabaloo about it. The Supreme Court had held that under the old act it wasn't a copy. And in 1909, when Congress decided wisely to give the author and composer of music protection against the use of this property on phonograph records for the first time, Congress did a peculiar thing. It set a limit. I don't say whether Congress was right then, but it was a compromise. It said that, if the author and composer of a musical composition either made a phonograph record bearing that composition or permitted somebody else to do it, every other phonograph-record manufacturer could do the same thing for 2 cents a record.

And then it went further. The question arose about public performance because public performance for profit was one of those rights that Congress said should carry its load separately and distinctly from anything else. Somebody evidently said, "Oh, we are dealing with a plaything."

What were those coin machines in those days? You remember the penny arcades. We had one I think on Park Row in New York, where you went in and you played a lot of little machines and threw a few balls and so on in those places. They had these machines with disks and they only had one record. You couldn't change the record. When you put a penny in the slot and put a couple of earphones to your ears, this record played. That was just like tossing a few balls someplace. People thought they were playthings.

If you will look at Report No. 2222 of the Congress at that time, they referred to them as these coin-operated machines which are used in the penny arcades, and nobody thought anything would ever come

of them.

You see, we have made more progress in the mechanical arts in this country in the last 50 years than the world has ever seen since the invention of the wheel and nobody could forsee back in 1909 that

this little plaything which was like a music box, the old music boxes where you lifted a lid and heard ting-a-ling, had more importance than that.

So, what is the theory of the exemption? The theory of the exemption was that when you put the earphones to your ears it was not a public performance. It was a purely private rendition. So they said, "Oh, shucks, if that is what you do, then don't bother with it."

And for 40 years now, the jukebox has developed-and when I use the term "jukebox" I don't use it in any sense of disparagement. That is what it is called in the English language that I read all over. The jukebox has developed to the point now where it has actually displaced the living musician.

Now, I remember the time when in small taverns you would have a piano player who sat with a cigarette hanging down the side of his mouth who played "Tammany" and other songs, and everybody had a good time. Now, that fellow isn't there any more. There is a juke box in his place. And these jukeboxes for the most part, as I understand it—and I think it is true-are put in there by these people who make a business of it, and they make a very handsome profit out of renting out and servicing these jukeboxes. They are in business performing publicly for profit, selling entertainment.

And what are they selling? When you put a nickel into the slot, you don't put it in to see the lights come up or to see the lights shine through the little pieces of colored glass with which the jukeboxes are adorned. You put a nickel in the jukebox to hear a song so that you may feel a little better. And the jukebox industry couldn't live without music, because that is the very thing that it sells. It is the very thing that it is paid for, the very thing that hundreds of millions of dollars are spent for in this country.

The authors and composers of America come to you and say, "Why not let us have a modern approach to a modern problem?" Here you have music publicly performed for profit because it is public. It blares out of a loud-speaker so everybody hears it. It is no longer the earphones which only made it possible for one person to hear. Why shouldn't that bear its fair share for the use of the author's property? Now, mind you, not as charity, by any means, because, as I have explained to you in the discussion of this theory of separation of rights, it has always been the old-fashioned theory that the man who dances to the tune pays the piper; and we believe that the jukebox industry can well afford and should pay the tunesmith.

Now, let us analyze Mr. Raine's testimony for just a second, and I shall not be long. He was asked about what were the top record sales of a hit, and he said "1,000,000 records." Now, that is top. That is being Babe Ruth. That is like being tops in your profession. And when you got the best song of the season you sell 1,000,000 records, and the most you can get under the copyright law is 2 cents a record. And because there is a top limit, the record companies usually bargain it down for less.

But let's take 2 cents. That is $20,000 for the top song, for the Babe Ruth of the music season-$20,000. Now, let's see where that goes and who gets rich on it. I believe that a Congressman asked whether a publisher doesn't take a risk when he puts out a song. Of course, he does. He puts out a dozen before one even brings back expenses. So he gets half of that $20,000 as a rule because he has put the money into

printing. He has put his money, as Mr. Wattenberg indicated, in trying to popularize the song by sending out salesmen and so forth. The other half goes to the writers.

Now, Bob Merrill told you that he writes words and music. But he is unusual. Irving Berlin writes words and music. But for the most part most songs are written by at least two people, the man who has the musical gift and the man who has the gift of poetry.

So, on almost every song, if you look at your sheet music, you will find that there are at least two writers and sometimes three. So, the other $10,000 is divided into or among the composers and authors. So, on a top song from the phonograph records a man can make as much as $5,000 if there are only two writers or $3,333 if there are three. And, if you have the gift of Bob Merrill and you can write both the words and the music, you have a most unusual gift and you get, out of that best song you can write from the phonograph records, $10,000.

And how many years has it taken to build yourself to the point where you can write "Liberty Belle," or how many times in a man's life can he write such a theme that sweeps the Nation? So, people don't get rich on that.

Now, it has been suggested that perhaps by increasing that 2 cents you can take care of the jukebox problem. I am opposed to that, sir, for this reason: If I buy a phonograph record for my home so that my wife and I can listen to it and so that my children and grandchildren can sit around and listen to that record which I have bought for my home, that is the same record that they put into the jukebox; and I don't want to pay the freight for the jukebox operator.

Now, it is just as simple as that. I don't want to pay the freight for the people who take in perhaps $500,000,000 a year.

Mr. ROGERS. You don't want to pay the freight

Mr. SCHULMAN. When I go to listen to the jukebox, I do pay my freight.

Mr. ROGERS. I know, but you want to pay the freight for the fellow who wrote it?

Mr. SCHULMAN. I do.

Mr. ROGERS. Wouldn't you be willing to contribute a little bit more? Mr. SCHULMAN. Certainly.

Mr. ROGERS. So he can make more than the $5,000?

Mr. SCHULMAN. Certainly I would be willing to contribute more to him. Books cost more today than they did before. The cost of printing has gone high. I still buy books, and I am still willing to pay. But, you see, if I pay more for the record that I have in my home and the jukebox operator gets the same record for the same 2 cents royalty to the author, I am paying more money for using it only in my home, and am taking away from him the obligation to carry his share of the freight.

I am paying his railroad fare, and I shouldn't do it. What is more, if I want to go in and listen to a jukebox, Mr. Jukebox Owner isn't going to give me a rendition for nothing. Of course, he is not. I put my money right in that slot, and he collects my nickel or dime. And to me the problem is just as simple as that.

When the jukebox people or the phonograph people say, "Let's take it out of something else, we will make the song for you for nothing, you collect more money from the other fellow," they are asking that

somebody else pay their freight, and I don't think that is the American

way.

Now, I said that I would tell you that we are supporting this bill. We are. The associations that I represent ask you to pass it. But we say to you that we don't like the 1-cent feature. We will yield to it and give it a try and see if it works and see if we can't get some sense by gradual steps.

But why don't we like it? Is it because it is 1 cent? No. Perhaps I am old-fashioned enough to believe in old-fashioned principles and the principle that private bargains are made by private people, and statutes shouldn't fix rates. To my mind the author has a piece of property like a piece of real estate and like a table and chairs. If anybody wants to use them, if anybody wants to hire chairs from somebody so as to hold a meeting, I don't think the rate should be fixed by statute.

I think those people should dicker between themselves and say, "I want so much a dozen for the use of the chairs," and the other fellow says, "I will give you so much less." That is the reason I supported the Scott bill; that is, because it had no compulsory fee in it, no compulsory license, no limitation, but rather left it to bargaining, as it should be left.

Mr. ROGERS. Then you take the position that we should protect the rights, but that beyond that we should remove any right to enforce, as we do in this case, the setting of minimum damages of $250?

Mr. SCHULMAN. No, sir. Mr. Rogers, on the question of the $250 damages, let us be candid on that. I think the committee knows that I never pull a punch.

Mr. ROGERS. Well, let us go back here just a minute.

Mr. SCHULMAN. I would like to examine with this committee the whole question of minimum damages which has been mentioned from time to time. I don't think that the copyright law today, in 1951, gives the adequate remedy that it should give.

Mr. ROGERS. Then what remedy would you suggest?

Mr. SCHULMAN. Are we speaking about this bill or about a revision of the remedies of the act, sir? In this bill there is no such thing. It just leaves it to the usual remedies.

In this bill the thing that I said I didn't like is the statutory fee and the compulsory license. But we will go along with it to see whether it works. We will go along with it just to remove the fears of the people who think they are going to be hurt unduly. We will suffer or we will agree to that compromise.

Now, on the question of the tavern owner we will also agree. We feel that the tavern owner perhaps is in a different position than the jukebox operator as the man who owns and operates one machine. But, sir, we say to you-and when I say "we" I am talking about the associations I represent-we plead with you to look at this thing on the basis that we have always looked at property-that when you give a man a right of property, give it to him and don't carve out one section of the community like the jukebox people and say, "Everybody else pays his way, everybody else pays his fare, but you get a free ride."

Mr. ROGERS. Well, now, let me interrupt you there. Do you not understand that H. R. 5473, if it is passed in the form and in the manner in which it is presented to this committee, upon its passage any jukebox operator or any tavern operator who, by the end of the month,

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