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Lyon & Healy were not the western agents for the Æolian Company. I said that we were for Chicago, but I should have added that we are for Chicago and a limited territory tributary to Chicago agents for the Æolian Company.
Mr. Low. I should like to ask Mr. Bowers if his house owns the stock of the Æolian Company to a large proportion.
The CHAIRMAN. This is all in the time of Mr. Pound.
Mr. POUND. Well, it is a fact that they are heavy stockholders in the Æolian Company, is it not!
Mr. Bowers. The estate of Mr. Healy owns some stock, and also Mr. Gregory. They own small holdings. You said large holdings. It is quite a small portion that they own.
Mr. Pound. Mr. Bowers, in this White-Smith v. Apollo action the very exhibit which was the basis of that action in behalf of the Æolian Company was one of your contracts and bears your signature as a witness.
Mr. BowERS. Yes; I witnessed quite a number of them. • Mr. Pound. That is contained on page 520 of the record of that
Mr. WEBB. You had better give the stenographer something a little more definite, so that you may refer to that case.
Mr. Pound. I have here, the record in the court of appeals in the matter of White-Smith Music Publishing Company v. Apollo Company, an action in equity, and on page 520, one of the exhibits of the case, one of the contracts entered into by the Æolian Company with the Clayton F. Summy Company, of Chicago.
Mr. Low. That matter appears on pages 13 and 14 of the arguments last June.
Mr. WALKER. I would like to ask Mr. Bowers if he did not sign nearly all of these seventy or eighty contracts as a witness?
Mr. Bowers. I think not, sir; 1 signed quite a number, but not all.
Mr. WALKER. How did it happen that you represented all of the numerous publishing companies instead of representing the Æolian Company.?
Mr. BOWERS. I was accredited from the Music Publishers’ Association.
STATEMENT OF MR. GEORGE W. POUND-Continued.
Mr. Pound. Mr. Chairman and gentlemen of the committee: The statement made by Mr. Bowers just now in your presence that he is the avowed agent of the Æolian Company, he having charge for his firm of one entire department of their business, that firm being the agent of the Æolian Company and that firm having stock in the Æolian Company, he then adding to that statement that he solicited these contracts in behalf of the music publishers, seems to me to add very materially to my statement and to the importance which it gathers here, and back of it all, as I said before, is not the composers; it is the Æolian Company and this association of music publishers, who are here seeking this monopoly. Now, under the decisions of the law of the land as it stood, as it has stood, and as it stands to-day, and will stand for all time unless the Supreme Court overturns this decision-going way back to
the McTamany case, twenty years ago, and coming down through all the stages of all the litigation we have had on that subject—1 say, the light of all that jurisprudence, we were told by the Government of the United States that we had a right to engage in this business. We employed large capital, we built factories, and we put all our eggs in this basket. You have no comprehension, I firmly believe, of the magnitude of this business. As a simple illustration of it, I would say that just one of my client's purchases of talking machines and talkingmachine records for the month of October last was over $55,000 for the one month, and those go out, not to the homes of the rich of this country, but to the homes of the workingmen.
The workingman is the man who buys the talking machine. It brings home to him that which he can not get. It gives him the best operas, the best music, it gives him his evening's entertainment, and it is the home of the poor man which is primarily of necessity affected here, and when we have a contract confronting us, like paragraph 5 of this contract that I offered in evidence this afternoon, giving the Æolian Company not only a monopoly in this business, not only the monopoly in the sale of perforated paper rolls, but also saying to these dealers that they can not and dare not use any other perforated paper rolls, and not only that, not stopping there, but that they must not use any other machine than the Æolian machine--and then right along in that same paragraph giving to them the right to raise the price as they see fit, as they deem necessary, and binding that other man, that manufacturer, that publisher, not only by the contract itself, but by the written guaranty attached to the end of it, that he will live in accord with it—I say when you do that you hand over to these men here, opposed to us, an absolute unqualified monopoly such as does not exist to-day.
The CHAIRMAN. I would like to interrupt you for a moment to ask a question upon the point of the money invested in your business. Suppose composition should cease, what would happen to your business?
Mr. Pound. The composition of music?
Mr. POUND. Of course, should future composition cease, which can not happen
The CHAIRMAN. I understand that, but suppose it should?
Mr. POUND. If this bill passed, we even more would be at the mercy of the Æolian Company. The Æolian Company in their last catalogue, if memory serves me correctly, had a list of 9,000 perforated paper rolls. They have had copyrighted in this office about 1,000 of those rolls. It would be but a very brief day or two before all the rest of them would be copyrighted so that we would be absolutely debarred from all the old masters; we would be barred from all music in the past, and then by this contract they seek to bar us in the future.
The CHAIRMAN. Suppose this bill does not pass, and suppose that compositions should cease, in what respect would your business be affected?
Mr. POUND. It would certainly be seriously affected.
The CHAIRMAN. Now, then, this bill, as I understand, is not expected to be retroactive!
Mr. Pound. It undoubtedly is, however.
Mr. POUND. I will point that out to you, if I may. You take, for instance, in the case of these 1,000 rolls, so to speak, already copyrighted by the Æolian Company
Mr. CƯRRIER. Do you suppose that the copyright they have taken gives them any right?
Mr. Pound. If this law should pass, I think so. I do not think now, at the present time, their copyright is worth anything. Frankly, no, I do not think it is worth the paper it is written on. Of course the fact that they believe that is shown by the fact that they are not endeavoring to enforce those copyrights as against us. you pass this bill, what becomes of us then on that music they have copyrighted? Certainly those copyrights would become good then.
Mr. CURRIER. Under what paragraph of this bill?
Mr. CURRIER. Does not paragraph (g) particularly provide that this shall be a reproduction of music copyrighted after this act shall have gone into effect?
Mr. Pound. They have the records right here.
Mr. CURRIER. Would not this make it apply solely to new music copyrighted after the passage of this act?
Mr. POUND. Yes; that section taken alone so implies, but we could not come and cut these same holes.
Mr. CURRIER. Why not? Mr. TINDALE. Will you allow me to say that these numerous rolls which the Æolian Company have copyrighted, or any other which involves the works of the old masters-nobody can do that. All in the world that the Æolian Company has copyrighted has been their own particular arrangements. Anyone, John Smith or anyone else, can make his own arrangement of any of the works of the old masters.
Mr. Pound. Then why do they copyright?
Mr. O'CONNELL. Mr. Chairman, I think section 6, taken in conjunction with subdivision b in section 18 would cover the question.
Mr. CURRIER. Yes. Section 6 provides that additions to copyrighted works, and alterations, revisions, abridgments, dramatizations, translations, compilations, arrangements, or other versions of works, whether copyrighted or in the public domain, shall be regarded as new works subject to copyright under the provisions of this act.
Mr. CURRIER. I was asking only for information.
Mr. O'CONNELL. If you take subdivision b of section 18 you will find that gives copyright for fifty years after “any arrangement or reproduction in some new form of a musical composition.” Now, where this filing of these 994 records with the Librarian of Congress would come in would be this, that it would establish, beyond peradventure, these people were the first cutters and the first to make the new arrangement.
Mr. POUND. Now, I have here one of our perforated rolls. This roll which I exhibit to you has practically ten perforations to the inch.
The CHAIRMAN. Where do you secure the music?
Mr. Pound. Oh, from all sources. I will come to that in a moment. I am going to discuss that. You will observe that this perforation, this cutting, is different from what you have seen on other rolls to-day. We do not cut our paper, as the Æolin Company cuts theirs. There are many different ways of cutting that.
Mr. CHANEY. Could you not copyright your peculiar way of doing that, notwithstanding they copyright theirs ?
Mr. Pound. That, I take it, would be a question. We want that privilege.
Mr. CHANEY. If this bill passes, would you conclude that you could not?
Mr. Pound. I would conclude that we are absolutely barred by this bill.
Mr. FURNISS. No, sir; you have a perfect right to make any arrangements of standard music.
Mr. Pound. I do not think so, with all due deference to Mr. Furniss. Here is one that has a hundred notes and here is one that has only forty-one notes.
The CHAIRMAN. Under what provision do you claim you are barred from copyrighting that roll and the Æolian Company is permitted to copyright its roll?
Mr. POUND. Because I take it that the Æolian Company would say to us that our roll--if their argument here is good for anything at all along this line-then it would follow that they would say to us that our cutting was simply a mechanical difference, that it was "a material part” of their work. That it produces the same melody, we will say, substantially the same, and that our difference was simply a mechanical
, difference and as such' would not entitle us to a separate copyright.
Mr. CHANEY. Well, you know that it is the arrangement of words in a book and not the ideas that are copyrighted.
Mr. POUND. Yes.
Mr. CHANEY. Why? What provision of the bill here do you think would prevent it? We are trying to get at the fact, of course.
Mr. WALKER. Mr. Pound, may I interrupt there? I have my eye on the provision at this moment. It is in subsection (b) of section 18, page 14. That is the section alluded to a moment ago, in full. Now, let me eliminate the verbiage and read as follows: "Any arrangement or reproduction in some new form of a musical composition.” The Æolian argument would be this: That, having taken one of the compositions of, say, Beethoven, and being the first to reproduce that in any form of reproduction, they hold a copyright for fifty years on all sheets to do that, because they were the first to do that. That will be their argument; so that, according to the theory of this bill, as I understand it--that because they would be the first to take a classical piece of music and perforate a sheet of paper to perform that music--they would have a permanent.copyright, which would cover all perforated sheets of paper capable of rendering that music.
The CHAIRMAN. Can you not modify that, so as to take that chance out?
Mr. CHANEY. What is the trouble with eliminating that?
Mr. POUND. Wait a moment. I object to Mr. Furniss interrupting. I can not be interrupted at all times.
The CHAIRMAN. Mr. Pound has the right to use his own time if he
Mr. Pound. Mr. Chairman, in answer to the question as to whence comes our music, a large proportion of it comes from the composers and from the publishing houses themselves. I will read to you a letter bearing date April 7, 1906. It bears the letter head of Harry Tilzer, music publisher, New York, Chicago, San Francisco, and London, and is as follows:
DEAR SIR: Am glad you received “Amity song” 0. K., and I assure you I will more than appreciate all you do toward boosting my stuff along. Am inclosing you herewith “Moving day," which I wish you would also use, and I assure you I will more than appreciate the same. Wishing you all kinds of success, and hoping to hear from you in the near future, I beg to remain, yours, very truly,
HARRY VON TILZER. The CHAIRMAN. Is this gentleman a composer?
Mr. Pound. Yes; and a publisher. Here is a similar communication, bearing date April 25, 1906, bearing the letter head of Arthur H. Miller Music Publishing House, 509 Broadway, Baltimore. He says that he is sending us “What are you going to do when your clothes wear out,” to be placed on music rolls. "Thanking you very much in advance for any favor you may show us in this matter, etc.
The CHAIRMAN. Do you pay that class of composers any compensation?
Mr. Pound. No, sir; they do not ask compensation. They ask for the advertisement coming from their music being put out on these mechanical reproductions.
The CHAIRMAN. Suppose they should desire compensation?
The CHAIRMAN. Gentlemen have appeared here who complain of the use of their compositions in these musical devices without their consent, without paying them a compensation.
Mr. Pound. We contend, sir, that that position is not well taken, that as a matter of fact every composer in the land and every musicpublishing house in the land is glad to get the advertisement following from the mechanical reproduction of their music. It is regarded in the trade as the best assistant to the sales of their music of any form of advertising. Mr. Brooks, of the Chicago Marine Band, is another gentleman who very frequently sends his compositions to our company and requests them to be put on the rolls so as to give them publicity. Lots of these people pay singers in the music halls to sing their songs, and they pay bands and furnish them with their music.
The CHAIRMAN. That class of people would not object to the provision in the proposed law?
Mr. Pound. I don't know whether they would or not. I believe they would prefer to have it as it is now.
The CHAIRMAN. They would not object?
The CHAIRMAN. They would not object, because it does not interfere with their composition.
Mr. Pound. I think the form which their objection would take would be that if this bill created or tended to create any narrowing down of the output of music into a monopoly that it would force them to deal with one house and only one house. I think they would much prefer that their music should be cast broadcast.
Mr. WALKER. Would you let me make a suggestion there?