STATEMENT OF FREDERICK W. HEDGELAND, ESQ.

The CHAIRMAN. Whom do you represent?

Mr. HEDGELAND. I represent the Kimball Company.

I wish to state, gentlemen, that three or four days ago I first learned of the introduction of this measure. I have heard what the advocates of this bill have said with reference to there being one side to this question. There are really four sides to this question-the public, the composer, the manufacturers of the automatic musical instruments, and the inventors that have made that industry possible. The bill as drawn practically gives the monopoly of all this capital that has been invested, the genius that has been displayed and made this field possible to the composer, to the publisher and composer, in its entirety. Now, the brains and effort that have made this market open to the publisher should be recognized in this bill. The bill should not be a retroactive one, to punish the inventor and the capitalist for what they have done in the past to provide a field for the composer.

Mr. CURRIER. It will not be retroactive.

Mr. HEDGELAND. It must be equitable; and as to any rights that are conveyed in that bill to the publisher or the composer, it must put these industries on an equal footing. Otherwise it is creating one of the worst trusts that one can conceive.

In a recent suit it has been claimed that these instruments discourage education in music. Such is not the case. In a recent test case it was proven and never contradicted that learning, both vocal and instrumental, has increased year after year, and that the sale of these staff notation copies has been increased rather than diminished by the automatic musical instruments. Now, those things all being taken into consideration, I think this industry deserves very careful equitable consideration on your part.

I have had no time to prepare the different phases of this matter, and would like, if the committee will give me permission, to file a short brief from the manufacturers' and inventors' standpoint.

The CHAIRMAN. You may have that privilege.

Mr. HEDGELAND. With that, gentlemen, I will not take any more of your time.

To the joint committee of the Senate and House:

In obedience to the privilege extended me on my short address June 9 by your honorable committee I now file the following brief:

There are, without question, four vital interests involved in the copyright legislation now before your committee, as applying to mechanical reproductions of musical compositions, as set forth specifically in section 1, paragraph (g), and section 38; this bill, H. R. 19853, also bristles in many sections with conditions that might easily be construed as applying to mechanical industry, and calls for careful analytical legal investigation.

The interests of equity involved are: The inventor; the composer; the manufacturer of automatic instruments and their controllers; the public. I shall take up the equities in the order named.

The inventor.-Being an inventor, and the majority of my inventions being on automatic musical instruments and devices for making the controllers (which patents largely outnumber any contributed by any other individual to this art), I am well fitted to state the part these devices have taken in the advancement of music. Automatic musical instruments date back six decades or over. The barrel organ, with its cylinder and pins, was used to accompany divine worship in English

churches before pianos adorned the homes of the congregation, and they have been constantly manufactured up to the present time, and are known now as orchestrions. Twenty-three years ago, at the inventions exhibition held in London, England, automatic reed organs (aolians) were exhibited by the Mechanical Organette Company, of New York, and, mechanically, I had charge of the instruments on exhibition. There were also exhibited piano players of French and German manufacture and the Miranda pianista, an English pneumatic player. Both æolians and piano players have constantly been manufactured up to the present time, inventive genius constantly laboring for perfection in operation, ease of operation, and reduction of cost to place them in reach of the masses. It is a fact beyond dispute that barrel organs are as old as or older than pianos or reed organs.

I have labored twenty-three years in this industry and contributed between thirty and forty patents to the automatic-instrument industry, and have invented and patented machines that would record on controllers for automatic musical instruments the conceptions of pianists and authors, when played on an instrument by them, and I have yet to acquire a competency for my labors. The inventor's labors are always discounted by the following conditions:

First. Capital and machinery to market and manufacture the invention. Second. State of the prior art as brought out in the Patent Office search. Third. The liability of infringement and the slow and tedious and expensive process of stopping it, taking testimony from Maine to California, etc. I have a case of flagrant infringement which was prosecuted four years ago and has not yet been adjudged by the circuit court-as is usual in such cases, temporary injunction being denied, which the composer or author could and does readily obtain.

The composer.-The composer or author of musical compositions rarely, if ever, follows composing or copyrighting alone as the means of making a livelihood. In all my experience I can not recall a single instance where this has been the case. With practically no exceptions, the composers of musical compositions are engaged in various other walks of life, and this line of work is more or less incidental to the occupations they follow. As an illustration I will name a few of them: Band masters, professional pianists, organists, choir leaders, teachers of music, piano salesmen, music salesmen, and many other callings. The amount of time or application spent in framing musical compositions is oftentimes but a few hours and in the majority of cases in otherwise idle hours. For instance, the testimony of George Schleiffarth, given under oath, which appears later in this brief. He states: "I have composed 1,500 pieces in thirty-seven years and have netted only $5,000 for these thirty-odd years. This is an average earning of $3.33 for each piece he copyrighted, or a yearly income during these thirty-seven years of $135 per year from his copyrights. It is patent to anyone that he did not procure his livelihood by this means. This is not an exceptional case, but rather a fair average of them.

I do not believe a single case can be produced where a musical composer has earned a livelihood by his compositions alone. This is a very different case with the author of a book with whom the composer shares like privileges under the copyright act. In the majority of cases the author follows writing as his only means of livelihood. This class of work occupies a great deal of time, expense, travel, and study of the subjects forming the foundation of his work. The composers rarely treat their compositions as a serious business proposition, but rather as a side issue of net gain on what they realize from them. The publishers of the country are banded and organized together for mutual protection and enrichment to profit by this condition at the expense of the composer, the policy to fight royalties in favor of outright purchases for nominal amounts being general.

The manufacturer of automatic musical instruments and their controllers.-The equitable interest of the automatic instrument manufacturer consists really of two classes, namely, their rights as legitimate manufacturers to a self-made industry; and the part they have taken in the musical education of mankind, and the right they have to continue uninterrupted in an industry and art in which they have been so potent a factor, without molestation.

First. All manufacturers of automatic musical instruments or their controllers have vast interests involved. Capital and time have been heavily spent in creating an honest, legitimate and, beyond question, legal business. They have acquired patent rights, built at large expense special machinery to make a more perfect and less costly product. In short, have exercised and exhibited the same ambition and enterprise that is put into any business where price and merit is the determining factor of success.

Second. The manufacturer of self-playing instruments has done much to extend and create cultivated musical taste in the community.

This has at no time been at the expense of the composer, but, to the contrary,

has increased not only the sale of sheet music but has not diminished the study of music, as the following witnesses testified under oath in the recent copyright case: White Smith Music Publishing Company v. Apollo Company, which testimony was never rebutted or disputed as to fact.

Mr. George Schleifarth, witness called on behalf of defendant, being duly sworn, testified as follows:

"I have been writing music for thirty-seven years. I have written about fifteen hundred copyrighted compositions, several comic operas, and innumerable musical sketches of all sorts. I have also published some music personally and have now compositions with nearly all the leading publishers in the United States. My bestknown compositions are 'Doris,' 'Ambolena Snow,' 'Douglas Club Two-step,' 'Who Will Buy My Roses Red?' and the comic opera 'Rosita,' which has been playing for about twelve years, * * * and as the composer is anxious to be known, I have often asked my publishers to allow the reproduction of my compositions on graphophones and self-playing devices.

"Q. 5. Is it your actual observation that the demand for the sheet music is created and stimulated so that the sale thereof is increased by having the musical compositions played by the piano players and other self-playing instruments, and that the cutting of the perforated rolls for a given musical composition and the selling of such rolls with and for the piano players does increase the demand for the sheet music?A. As I am not in the sheet business on such a scale that I could judge to what extent it has increased, I still claim, from knowing the amount of music sold in the Untied States to-day, especially in the popular composition line, it is stimulated by all selfplaying devices. For example, I would sit at a piano player and play a catchy melody; six or eight people standing around me will immediately ask-or some of them will-What is this tune you are playing?' and I know from personal knowledge that many copies, especially of my own compositions, which are cut for self-players, have been bought in sheet-music form on account of my playing them on the machine. "Redirect:

"Q. 22. I inferred from your statements in that regard that you received usually what you regard as very small compensation or price for a great many of your compositions thus sold. Will you give some instances of this sort, illustrating the disparity between the price you received and the popularity, in sales, of the pieces respectively?-A. My first great success, Careless Elegance,' which I published on royalty twenty-eight years ago, and which is still selling to-day, netted me $11. My great song, 'Who Will Buy My Roses Red?' which sold 100,000 copies, netted me $83. My great composition, The World's Exposition March,' $5. The Cadet Two-step' (50,000 copies sold), $4. And so I may go on ad infinitum. Out of 1,500 compositions I have probably earned $5,000."

“PETER C. LUTKIN, witness called on behalf of the defendant, being duly sworn, testified as follows:

"Q. 4. Have you in mind the rate of growth in respect to pupils in attendance in the school of music for which you are dean, for five or six years back; and if so, will you kindly give us the facts in general?-A. I have the statistics for the past five years. The attendance in the school of music for the year 1898-99 was 248; for the next year, 297; the next, 348; for the next, 366; for the present year, 460. The figures for the present year are an underestimate rather than an overestimate, as the year is not yet closed; actual number is 453 to date, but will probably run to 475. "No cross examination."

“JULIUS W. PETERS, a witness called on behalf of the defendant company, being sworn, deposes and testifies as follows:

"Direct examination by Mr. BURTON:

"Q.1. Please state your name, age, residence, and occupation.-A. Julius W. Peters; age, 45; residence, 4465 Oakenwald avenue, Chicago, Ill.; bookkeeper for Chicago Musical College.

"Q. 2. In your capacity of such bookkeeper, have you been intrusted with the keeping of the attendance of that institution?. I have.

"Q. 3. Will you please state what those records show as to the rate of growth of the attendance of pupils at that institution during recent years, giving, if you can do so, the rate from year to year, down to the current year?-A. I have taken this report from the year 1896-97, and our years run from September to September. The increase from 1896-97 to 1897-98 over the preceding year was 9.6 per cent, in the following year 10 per cent, in the next year 10 per cent, in the next 23 per cent, and in the next year 12.9 per cent.

"Q. 4. Can you give, from the indications so far in this year, the approximate rate of increase?—A. I should say it would be at least as much as last year, which was approximately 13 per cent.

"Q. 5. What is the total increase in attendance from the first year of which you have stated the figures, to the present time?-A. 75.3 per cent; that is, up to September, 1902.

"No cross-examination."

"Mr. WILLIAM MCKINLEY, a witness called on behalf of defendant, being duly sworn, deposes and testifies as follows:

"Direct examination by Mr. BURTON:

"Q. 1. Please state your name, age, residence, and occupation.-A. William McKinley; 41; 3306 Indiana avenue, Chicago, Ill.; music publisher.

"Q. 6. During the period, say, for the past three years, during which the manufacture and sale of these automatic players has been most rapidly increasing, what has been the fact with regard to the sales of sheet music, as to growth or diminution?-A. My business has greatly increased.

"Q. 7. If you have made any examination with regard to the compositions which have been cut in perforated rolls and used in automatic players by the different companies making such players, as to the sales which have been made of these pieces in sheet-music form during the period, say of the last three or four years, or since the time when they were cut in perforated rolls, will you state how the sales of such pieces have run? Have they increased or decreased during those years?-A. My business has very greatly increased in certain pieces that I know are issued in the form of a perforated roll.

"Q. 8. Have you in mind-if so, you may state as near as you recall-the rate of increase of any number of those which you have looked up and remember, giving their titles, if you recall them; and, if not, in general?-A. The sales of some of the pieces have doubled within the last two years-double what they were for the four years previous. I have traced up about 20 pieces of that sort to get these figures from which I stated the comparison above. I know when I desire to get new music for my family I call on the operator or performer of some of the stores that handle the music rolls. They often give me a list of the pieces. I usually purchase that. I have a list in my pocket of perhaps at least 20 pieces that I have been recommended to purchase. They have been recommended to me by one of the young men who has charge of that department-music rolls-in one of the stores; pieces I had never heard before.

"Q. 9. I understand you mean by your last statement that the pieces that you are recommended to purchase are so recommended by persons who have opportunity to hear them played by means of the perforated rolls?--A. Yes, sir.

"No cross-examination."

"WALTER LUTZ, witness, called on behalf of defendant, being duly sworn, deposes and testifies as follows:

"Direct examination by Mr. BURTON:

"Q. 1. Please state your name, age, residence, and occupation.-A. Walter Lutz; 29 years; 902 North Halstead street, Chicago, Ill.; salesman with H. B. McCoy in the music business, Chicago.

"Q. 2. How long have you been employed as music salesman?-A. Sixteen years. "Q. 3. From your experience as a salesman of sheet music, have you had any opportunity or occasion to judge what effect, if any, the introduction and increasing use of the piano players and other automatic instruments of this class has upon the demand for and sale of the sheet music of the same compositions? A. Yes; I have had people come in the store and ask for music which they had heard from the various players.

"No cross-examination."

I wish to call the committee's attention to the fact that the above testimony was taken to prove the opinions expressed by two witnesses for the plaintiffs were in error when they stated as their opinion that the mechanical player was detrimental to the sale of sheet music. Note the lawyers for the White Smith Music Publishing Company did not dispute the facts by not cross-examining these witnesses. The plaintiff is a big music publishing house and influential members of the Music Publishers' Association, with all the evidence and aid their association could lend, could not and did not attack these undisputable facts. It is a coincident worthy of your close attention that W. M. Bacon, à partner in the plaintiff's firm in this case and

also of the copyright committee of the Music Publishers' Association, who was leader of the prosecuting forces and signally failed to prove that this industry did other than to improve the sale of music, now comes to your committee with a copyright measure framed by his associate on the copyright committee of his association. Mr. G. W. Furniss, who is chairman, presented it and had it drafted in at the first conference, at which they both were present, and they were at every other conference to guard their conspiracy; conspiracy I say, because Mr. Bacon's firm has a contract (and his lawyers had to so stipulate), identical to the contract filed with your committee, between a publisher and the Aeolian Company. Read the contract; they have conspired against the composer and against the public for an undue personal gain, grafted what they wanted in their copyright measure, and now come to you gentlemen with it under the guise that the composer is being robbed of his dues by automatic devices. I submit it is a prima facie case of the principals to this contract not only planning to sweat the composer, but to hold up the public. It is a conspiracy in which the copyright office has aided them, possibly innocently, and they have asked your assistance, the public funds paying the expenses, the same public they want to get under their grasp. I can prove every word of this at any time. Is it not time Uncle Sam should arouse?

The public. The public side of this question is an important one. They have purchased in good faith instruments and self-playing devices and invested their money on the reasonable assurance of being able to continue undisturbed in these rights, and, by their patronage, have helped develop one of the foremost industries of this country and must be permitted to continue to buy controllers from the different manufacturers of their instruments. The public's spending power in this industry, being the foundation of this great and prosperous industry and the foundation on which compensation is now sought by copyright legislation for the composer, it is obvious that it must not be impaired at this late date by any measure calculated to give either the composer or his publishers legislation that will place either of them in a position to dominate this extensive industry and interests, and the public.

PERTINENT POINTS OF FACT.

This bill, H. R. 19853, as presented, is an iniquitous measure, framed not by the "poor composer" nor by the public interested, but by banded, bonded interests, which have conspired together for special privileges and greed and have had the audacity to submit it to Congress for its seal of approval. There is no secret now about this. The Librarian's records show, as also his admissions, that the interests I have enumerated in this brief were never notified of intended proceedings and never invited, although these uninvited interests are the very ones bartered in in the bill. The conferees at the conference consisted of the Book Publishers' Association, the Music Publishers' Association, etc. The two mentioned could hardly represent the authors and composers. Have they any credentials to this effect? The facts are, they represent copyrights they own and for which they seek further favorable concessions, out of which the exploited beneficiaries, the composers, would get nothing.

It has been maintained that mechanical players tend to discourage learning and reduce the sale of copyright music, but all the evidence taken on this subject proves the contrary is the case, and it was never questioned, even by counsel representing the publishers, who now seek special privileges. The publishers can not prove that they have paid an average of 1 per cent on copyright music they have published, nor the composers that they have earned an average of 1 per cent on their copyrights, in an industrial field of their own, yet they ask legislation giving them a dominating interest in an industry that other brains and money have created. Any amendment to this measure placing all interests on an equitable footing will be fought by its advocates, showing their corrupt intentions. This industry has been hampered for past years by threats of the mentioned combinations, and Congress in any new bill should clearly define whether this mechanical matter is or is not included in the amendment. To end this matter once and for all, I am in favor of giving the composers (not the proprietor or owner of a copyright) the specific right to copyright his composition as applied to mechanical reproductions, and to collect reasonable royalties from manufacturers who may wish to use it, leaving it to a court of equity to determine what a reasonable equity would be, if such a measure is considered advisable. I should urge that, as this provision will apply solely to mechanical reproductions and receive its benefits therefrom, the term of this copyright should, in all equity, take the life of a patent with which it associates.