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That was the sentiment of the Senate committee as a whole, that patents should not be extended.
Representative LEAKE. That is the sentiment of the House committee also.
Representative CURRIER. Yes.
The CHAIRMAN. Senator Platt told me that his act in aiding the extension of one patent was one act of his Senatorial career that he wished could be undone.
Mr. Pound. Now, gentlemen, continuing the line of thought sug. gested by Representative Leake. Let me say that it is only the visible thing that is protected. Your wireless telegraphy—the intellectual idea-is nowhere followed up and protected. You might as well say that if a bass drum were a patentable article, a man would have to pay a royalty on it every time he beat the drum.
I will make reference now to the proceedings of June, 1906, page 112. I will say as to the contract mentioned there that nowhere is there any mention of such contracts as Mr. Burkan mentioned here. Also in the case of the proceedings of December, 1906, at page 301, there is still another contract which contains no such provision.
Now, gentlemen, it is always fair to inquire whether a person coming before you, or coming before any other legislative body, comes with clean hands, especially when he comes and charges other persons in the business community with being pirates and thieves--men who have built up great and useful industries—it is in order to inquire who these persons are who make these charges. The organization which these men have elected to present their literature here before Congress--the organization with which Mr. Herbert and Mr. Sousa are connected—insists that the “ imperial genius” (self so called) of Mr. Reginald De Koven shall be carefully respected. We were informed that some of his works were the great successes of the age. But the committee will remember that last year here the song “ Oh, Promise Me," of which we heard so much, went to the promised land, passed out into the purple twilight of the unknown dead, because it was established before you, without contradiction, that it had been copyrighted for thirty years, that thirty-one years previously it had been copyrighted by the same publisher under the title “ Forbidden Music.” Imperial genius!" "And this is the man who comes here to ask protection against “pirates."
I now read an article, the leading editorial, from the Washington Post of Sunday, October 30, 1892, entitled The Story of a Song:
In the first part of the third act of the Fencing Master, which has just closed a very successful engagement at Albaugh's Theater, there is a pretty, catchy song in typical Spanish rhythm and movement. It has attracted a great deal of attention everywhere. The delightful melody, the dash, the delicacy, and the swing of the measure combine to render it irresistibly attractive. It is always applauded to the echo, and the public seems never to have enough of it.
This song has a history. Several years ago a young officer of the United States Navy, attached to a vessel cruising in the Mediterranean, went ashore at some one of the romantic little sea port towns that dot the embowered shore of Spain. Dining in a garden restaurant that night he heard a mandolin orchestra playing and a sweet-voiced chorus singing what seemed to him the most captivating of all Spanislı songs. He listened to it with insatiable delight, and finally, as he spoke the language fairly well, secured from one of the musicians a rough transcript of the music. This he brought back home with him and gave to the Alibi (lub of this city. The music was duly arranged and supplemented with appropriate words, and became the club song of the Alibi Club. Winter after winter, at their regular Saturday night reunions, they have sung the song in chorus, to the uproarious applause of their guests, among whom at different times they have numbered nearly every distinguished actor, singer, and professional artist in the country. There has been but one verdict by discriminating audiences, and that is that the music is peerless of its kind.
Last season, while the famous “buffo" Barnabee was here with the Robin Hood Company, Mr. Reginald De Koven was asked to one of the Alibi (lub functions, and there heard the song. He heard it several times. Like everybody else, he was charmed with it, and he had it repeated over and over again. And now the Alibi Club men go to hear Mr. De Koren's new opera, the Fencing Master, and find their old club song figuring as one of its choicest morceaux. What they think of the proceeding they have explained to Mr. De Koven directly in a note, a copy of which follows:
THE ALIBI CLUB, No. 1806 I STREET,
Washington, October 27, 1892. REGINALD DE KOVEN, Esq.,
The Shoreham, Washington, D. C. SIR: I am directed by the Alibi Club to protest against the unauthorized use of our club song now being produced in your opera, The Fencing Master, as your own composition. The Alibi Club does not claim the right to criticise the acts of nonmembers or to dictate to their guests the proper use of hospitality. It claims the right, however, to resent the unwarranted liberty you have taken in producing the song. You heard the song while a guest of the club. You asked that it be repeated for your edification, which was done in perfect good faith, as you were the club's guest. Your afterwards wrote a member for the score, which was denied you, and yet, despite this fact, you have sought to reproduce the song from memory as " original ” with you. in recalling these facts to your mind the club desires to express its right to request the immediate withdrawal of the song in question from the score of your opera. Very respectfully, yours,
THE ALIBI CLUB.
(By its Secretary). The only comment at all suitable to this episode would hardly pass muster in the columus of a high-class Sunday journal intended for the education and entertainment of the family circle. We refrain, therefore. But the story is amusing of itself, and it is here given without prejudice, purely in the interest of history.
I will now read an editorial from the Washington Post of November 7, 1892, headed “ That De Koven piracy.”
The editorial article in the Post of Sunday, the 31st ultimo, referring to Mr. Reginald De Koven and a certain song in his alleged opera The Fencing Master has been more widely copied than any of recent production. From New York to San Francisco and from Boston to New Orleans nearly every newspaper of any prominence has reproduced with appropriate comments the Post's exposure of the burglary.
We have so far seen but one attempt to palliate Mr. De Koven's offense. Here and there expressions of incredulity have occurred, but nowhere, except in the single instance to which we have alluded, has there been a deliberate endeavor to present an explanation creditable to Mr. De Koven. One comes to us from Chicago, however, and it is of so remarkable a character that it deserves the widest circulation. It takes the form of a press report and reads as follows:
" CHICAGO, Norember 5.—There is some excitement in musical circles over the charge made by the Alibi Club of Washington that Reginald De Koven had stolen from them a song. In an interview a friend of Mr. De Koven makes the following explanation :
“The song which the Alibi Club accuses Reginald De Koven of having appropriated from them is not the property of the club. It has long been used by the Hasty Pudding Club of Boston, and was originally a Spanish folk song of unknown authorship. It was interpolated into the score of The Fencing Master, which is Italiau in subject, to be sung by a Spanish character as a folk song, and was not claimed by Mr. De Koven to be original. Mr. De Koven openly spoke of using the song to members of the Alibi Club, and the accusation made by the club is misleading and unjust.'"
As for the right of property, it seems to us that the question is not involved, at least in a legal sense. Mr. De Koven was invited to a gentleman's club, cordially received, and hospitably entertained. While there in his capacity as a guest he heard the members sing their club song. They had obtained it in Europe-obtained it honorably and with the consent of those who then had possession of it. Nobody in this country had it, or had heard it except at the Alibi Club and in the same way that Mr. De Koven did. The statement that a Boston club also had the song is emphatically denied by members of the Alibi Club who are also members of the Hasty Pudding, and who should, therefore, be competent witnesses. Mr. De Koven got the song from the Alibi Club, as stated in the Post. He asked the members to sing it over and over a gain, and in proof of our assertion that he filched it from them it is of record that he afterwards wrote to one of the members importuning him for the score. Furthermore, if anything else be needed to show that he reproduced the music from memory and in contempt of the protest of the club members, it can be demonstrated that the imitation is inaccurate in several important respects, and must, therefore, have been perpetrated by one who had no access to the original.
Mr. De Koven's “friend" asserts that the song has not been claimed by the composer to be his original work. We should like, howerer, to see one single intimation on any playbill issued before the date of the Post's expesure to the
effect that Mr. De Koven acknowledges his indebtedness to any other source . other than his own inspiration. The opera is put before the public as Mr.
De Koven's and, in the absence of any explicit exception as to any special number, it is fair to assume that the alleged author claims everything." And we may add, in conclusion, that no question has at any time been raised as to the property in fee simple. The question is one of a guest's obligations to his entertainers, and of the propriety of his taking and parading as his own something which he discovered for the first time in their possession.
It is, in fact, a question of morals rather than of law, and we doubt not that the Alibi Club men are quite willing to relinquish to Mr. De Koven whatever commercial profit he may have derived from the transaction.
The editor of the Post at the time these editorials were written was or had been the president of the Alibi Club, and you will observe that he states that “the only comment suitable to the episode would hardly pass muster in the columns of a high-class Sunday journal intended for the edification and entertainment of the family circle.”
Mr. O'CONNELL. Did Mr. De Koven copyright it?
Mr. POUND. I understand so. That same Mr. Reginald De Koven is at the back of the organization here that charges us with being “pirates " and asks you to come to its aid to prevent somebody from making use of their intellectual conceptions.
Whence comes our music? The figures that I have been able to gather—and I have spent some time on the subject_show that on the perforated paper rolls and phonographic disks a trifle more than 30 per cent of the so-called popular music is by American authors or composers.
The CHAIRMAN. You do not mean that all authors should be punished because Mr. De Koven may have pirated a certain song?
Mr. Pound. Not a bit of it, sir. I agree with the position of Mr. Harry Williams, of New York, president of the Words and Music Club, who is here and who recognizes the justice of a universal royalty.
But we have a right to ask who these people are who come here and tell you that we must close up our 625 factories and throw out of employment 35,220 men. We have men whom we have trained for years in this work, and I say we have a right to direct your attention to the attitude of the parties who come here seeking legislation after crushing defeat in the courts, and to ask you to see whether they are themselves consistent.
“Art in health, my brother?" I assert that the Æolian Company which has spent $75,000 to get an exclusive monopoly, which they would get under the Kittredge bill, should be inquired about, and when they attempt to foreclose and to shut out the other 624 manufacturers of the United States from all the masters as well as the popular music—taking, by the way, the music of their own associates here—it is time for us to insist that the committee should understand the situation.
Representative BARCHFELD. You do not come before this committee with the statement that if we pass this bill there are 624 or 625 companies whose establishments are to be closed by the action of this committee? . Mr. Pound. Yes, sir. Representative BARCHFELD. You do not mean that? Mr. Pound. I do, most decidedly. Your bill would.
Representative BARCHFELD. Then you are imposing, sir, upon our intelligence.
Mr. Pound. Not at all, sir. Intelligence, however, is a relative term, and it does not always exist.
Representative CURRIER. It may be as well to state that there are others who are not "imposed " upon. Mr. Pound is right.
Mr. Pound. Here are people who last year stood before the committee and admitted that they had “ a bushel of these contracts and had every man in the United States but one, and possibly two, in the business tied up in those contracts and that they would have us all crawling on our bellies.
Now, if they have all those contracts for thirty-five years and seventy-seven years and a hundred and two years, what are we going to do? We can not sell our instruments without the music. How are we going to get the music when the Æolian Company control it all ?
Representative LEAKE. Are not new musical men coming in all the time?
Mr. Pound. But they tell you and I here to-day that it takes a dozen years usually to produce a success. Are we to close up our factories meanwhile?
Representative LEAKE. Could you not go into the open market like others and buy your music!
Mr. Pound. We do so lots of times, but these men will not deal with us, they are tied up, and then anyway you must deal through the regular channels of trade in any business.
Speaking of Mr. Victor Herbert, now, I would say on behalf of companies that are responsible in every way, that if Mr. Herbert will play for us—if he will take his own compositions and his orchestra, and play for us, and give us the music in spite of the music publishers, we are willing to pay him for it. But he is not after this royalty feature here in itself. These men are most of them advocating the Eolian and publishers' interest rather than the composers'.
The CHAIRMAN. This is the way I look at this matter: There is no question but what if this monopoly was created these people would
have to go out of business. It is asked, Would not other composers equally great arise! Well, judging from the history of America in the past, we know that they do not arise every year nor every five years, nor do they come in bunches. And suppose that by the time every establishment is closed up, and this great monopoly has fastened its grip on the business of the mechanical reproduction of music in the United States, suppose that then another Victor Herbert arises, to whom is the poor fellow to go with his music-to the Folian Company, this monopoly made possible by our act?
There is nobody else in this country to whom he can take his music, for all others would be crushed out. And, mind you, if there was one manufacturer so bold as to dream of success and start a new business, bearing in mind the millions of dollars that this company controls, I think you will agree with me that the newcomer would stand no chance on earth against the gigantic monopoly. [Applause in the ha!1.1
Mr. Pound. It is a serious question. All the eggs in our basket are here. Everything that, we have is in this proposition. I stood before this committee last year, as you will recall, in the December hearirgs, at page 319, and I offered an amendment to provide a royalty. They did not want it. I said, " What will you accept?” They said, “ We want the Kittredge bill and nothing else." These men will not stand up here now in front of this committee and accept this proposition. They want an absolute monopoly.
Mr. Harris. I am one who will accept it.
Representative CURRIER. Did you not say in New York after this compromise proposition was suggested, that it was unconstitutional?
Representative LEGARE. Is that your picture [indicating]? It looks like you.
Mr. HARRIS. Yes, sir.
Representative LEGARE. Did you say, in an interview, “ These fellows make me tired?” (referring to Members of Congress).
Mr. Harris. I did not, sir.
(Mr. Legare read from newspaper clipping what purported to be an interview with Mr. Harris, in which it was stated that the proposition referred to was unconstitutional and that he intended to see some personal friend of his in the office of the New York Sun who knew something of copyright matters, and that his views would be there presented. That Members of Congress were “punk.")
Representative LEGARE. Did you ever deny that interview?
Mr. Harris. Yes. I can not help the mistakes made in a newspa per.
I never saw that paper. Representative CURRIER. 'I never received a letter from you about it. Mr. IL ARRIS. Just a minute.