Chapter XLVII: Section 19: , on the other hand, relates merely to now existing (1)

copyrights. It has the laudable purpose of extending the benefits
of the new law to authors of valuable literary and artistic works
copyrighted under the present law. The provisions at the end of
the section are designed to secure such new privileges to the
authors without interfering with the vested rights and investments
of their publishers. After such authors have enjoyed the full
forty-two years of monopoly granted them under existing law, they
may secure such additional term as is to be accorded to authors
under the new law; but if under the contracts which they have
already made they have conferred rights upon their publishers as
assignees or licensees, then they must have the publishers join
with them in their request for the extension.

It is questionable whether, in the absence of such provision, the
new privileges could be lawfully conferred upon authors who have
assigned their rights without impairment of existing contracts.
For example, when an author has sold his copyright altogether, the
publisher has combined with the literary property investment in
plates, stock, and good will, which should not be taken from him
at the expiration of the copyright term. In such cases, he could,
under the provisions of the present section, secure an extension
of exclusive rights only with the help of the author with proper
compensation, and the author could secure extension only by fair
consideration of the publisher's rights. If they fail to agree,
they are left just where they expected to be when they made their
contract under the terms of the present law.

As to the licensee for publication under royalty, I see no
objection to the addition of such a provision as was proposed by
Mr. Ogilvie, to protect the author against unfair treatment in
respect to future royalties.

WASHINGTON, D.C., _June 8, 1906_.

The CHAIRMAN OF THE JOINT COMMITTEE ON PATENTS OF THE SENATE AND
HOUSE OF REPRESENTATIVES.

SIR: At the meeting of the Joint committee held to-day, counsel
representing one of the talking machine companies made a statement
to the effect that Hon. Herbert Putnam, Librarian of Congress, in
the preparation of the copyright bill had called into conference
only such interests as he wanted, and with whom he was in league,
and intimated that the Librarian has acted in an unfair manner.

When recess was taken and the gentleman was leaving the building,
I called him aside and emphatically took exception to the remarks
referred to. As one attending but not participating in the last
two conferences held, I think it no more than fair and just and my
duty to express to the joint committee the fact that Mr. Putnam's
course throughout the conferences was fair, just, and equitable to
all interests represented, and that every interest concerned was
invited to present its views.

The interests were varied and frequently antagonistic, and Mr.
Putnam was decided in his expressions that every representative
should be heard to the fullest and freest extent, and that after
the wishes of those interested was ascertained he was confident an
equitable bill would be the outcome; that while it might not be
satisfactory in every respect to each, yet he felt positive that
with the assistance of the Department of Justice, the Treasury
Department, and the cooperation and counsel of the American Bar
Association, and the Bar Association of the City of New York, no
interest or line of industry, whether represented or not, would be
unjustly or unfairly treated. His attitude in all of the
conferences was in the highest degree dignified and impartial.

To my positive knowledge the trade journals, as well as the
newspapers, contained full information concerning the copyright
conferences and the proposed copyright bill as long ago as
February, 1906; yet the gentleman referred to claims that the
conferences were star chamber proceedings for the benefit of
selected private interests. No interested concern could have
failed to become acquainted with the fact that the conferences
were being held, and no one seeking admission was denied
opportunity to present his views.

This statement is made solely for the reason that the unjust,
unfair, and undeserved criticism of Mr. Putnam, known to me to be
absolutely true, has stirred my deepest indignation, and I present
this protest to the committee and ask that the reflections upon
Mr. Putnam be stricken from the record.

Sincerely, yours,

LEO FEIST.

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 features of trusts that one can conceive of.

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 (æolians) 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 Schleiffarth, 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
best-known 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 United States to-day, especially in the popular composition
line, it is stimulated by all self-playing 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?--A. 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 23-3/4 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, a
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
Æolian 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 had 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.

The following parallel ethical equities with the case of the
composer might well be considered by the committee:

The architect, the man of brains, who conceives a wonderful
conception of a piece of architecture or arrangement of a
building, how can he prevent anyone else from duplicating this
result or building it, which is the creation of his conception and
work? A man discovers a treatment for some disease; others use it
and apply it. A surgeon discovers a new form of operation; the
others use it. A business man, by dint of his brain, figures out a
great system for running his business, which makes it immensely
profitable; his fellow-beings adopt it and don't pay him a cent.
There are hundreds of parallel cases. Gentlemen, if it had not
been for this gigantic conspiracy you would not have heard of the
composer's woes.

This amendment has been fathered throughout by publishers,
associations, and rings. They have exploited the composers'
interests when they do not represent them, but, instead, their own
selfish interests, which have been safeguarded in advance by
contract.

Any legislation in favor of the oppressed composer should be so
worded and framed as to not place him any further under the power
of these combinations.

I shall be pleased, at any time, to prove to your honorable
committee any statements made in this brief.

F. W. HEDGELAND,

_Representing Inventors, Manufacturers, Composers, and the Public,
1535 West Monroe street, Chicago, Ill._

STATEMENT OF CHARLES S. BURTON, ESQ., OF CHICAGO, ILL.

The CHAIRMAN. Whom do you represent?

Mr. BURTON. I speak for the manufacturers of the perforated rolls and automatic instruments.

The CHAIRMAN. How much time do you wish?

Mr. BURTON. I do not know how much time the committee has at its disposal nor what has transpired. It may appear that some of the points on which I wish to speak have already been handled, and if I am informed of that as I touch them I will not take up further time with them. As I say, I speak for the manufacturers of perforated rolls and automatic instruments.

The CHAIRMAN. We have had several speakers on that subject.

Mr. BURTON. I understand that some points have been presented.

The CHAIRMAN. Perhaps it would answer your purpose to be permitted to see what they have said and supply in writing any additions you may desire to make.

Mr. BURTON. I should be very glad to do so. I have been obliged to come here on the shortest possible notice. I left my desk with my mail half opened and jumped for a train upon a telegraphic request to be here, and have only had that much time to determine just the form in which I would like to present what I have to say. But I could give you in ten minutes, probably, the results which, it seems to me, the bill should accomplish, and if I touch on points that have already been discussed it will not be necessary to speak further on them.

The CHAIRMAN. You may have ten minutes.

Mr. BURTON. But I would like to take advantage of the permission to file a full brief, giving my suggestions in detail as to the changes which, it seems to me, ought to be made in the bill.

Mr. CHANEY. Of course we want that, Mr. Burton. We think that will be more valuable to the committee than a speech.

Mr. BURTON. That is what I wanted to present, and if I had had time I should have been glad to have brought it in that form here.

I want to say first that it seems to me that while the bill follows the previous statutes in general in respect to copyrights, in the point I am going to speak of it ought to be amended. The practice in respect of patents is that the inventor shall verify his inventorship; he shall make oath that he believes himself to be the inventor, and any rights that pass to an assignee of the inventor must pass by an instrument which can be placed of record, signed by the inventor. But on the contrary, in the case of copyrights, in order to obtain a copyright the person claiming as the proprietor has merely to come in and make the claim as proprietor. He does not even have to verify that; and thereupon this bill expressly provides that he has a prima facie title to the copyright thus obtained.

It seems to me that that opens the door, as it always has--there is nothing new in this bill in that respect--to a large amount of fraud upon the author or whoever is the one in whom the right originates. I think, therefore, that when the bill is made up it should require the author to verify his authorship. The bill should provide that the application for registration should be accompanied by an affidavit of authorship, and if application is made on behalf of an assignee as proprietor there should be an instrument conveying the right from the person who originates it, namely, the author, accompanying the petition. It seems to me that no hardship can arise from requiring this of an author and the assignee of an author, as it is required of an inventor and the assignee of an inventor.

The bill provides that there shall be a very careful prima facie case made by affidavit as to the printing and preparation of the mechanical material for publication in order to come within the statute. All that must be verified, but the fundamental authorship requisite goes upon a mere assertion, without even the verification of an oath of the party claiming. A change should be made in that respect.

Then, furthermore, with regard to the right respecting perforated rolls, in respect of which I am speaking particularly, I think the right should be entirely distinct and separate from the fundamental copyright, the copyright of the "work," using the term that has been used; that the right to the perforated roll or whatever other form of mechanical reproduction is claimed should be based upon the filing of a copy of that perforated roll; that the filing of the copy of the original work should carry the copyright in the common sense of the word, but if the author desires to claim copyright in a perforated roll on his work, for that purpose, if you please to put it so, he should take it for that purpose, and make his claim of copyright upon that roll. If he wishes it in any other form of reproduction, such as the disk of the talking machine, he should file that; and I think that right should be entirely separate from the right which might pass by an assignment of the copyright. The publisher who may acquire the copyright on the work from the author should not, without express conveyance (although the same person might acquire both) acquire the right to control the perforated roll or the phonograph record or the talking-machine disk; they should be entirely separate.

The bill does provide that these shall be regarded as separate estates; but in view of the decisions in which a similar phrase is used, it is clear to me that that means that when the copyright has been obtained by the one proceeding provided for here, all these elements of it are separate estates which might be passed by separate assignments, but they would all be contained in the one copyright. I think that is wrong. I think that the right for the perforated roll should be acquired by filing a copy of that roll, in order that the public may know just exactly what is claimed, and whether it is claimed or not, and whether it is to be utilized.

Furthermore, I think that is a right that is naturally distinct from the other. It is a right that goes into manufacture instead of into publication. It is not to be done by the same people, naturally. The manufacturer, having a factory, makes the perforated roll. The publisher makes the books in an entirely different way. The two things are like different lines of trade. They are not naturally blended, either in use or sale. And therefore the composer or author, whichever it be, a work of words or of music, should be entitled to handle it entirely himself, apart from any right that he may have passed to the publisher by the transfer of his copyright.

I think I overheard as I came in a remark indicating that the next point I desire to press has already been suggested. In section 3 of the bill as I read it, as it stands now, there is a provision which would make it possible (and the committee will interrupt me if it has already been discussed, for in that event I should not wish to spend any time upon it) for the owners of copyrights of existing music to simply refile that music for copyright under this statute, and publish it with the mark that is required by this bill, and thereupon all that was contained in the previous copyright that is contained in that refiled and recopyrighted matter would come under this act, with all the privileges that this act gives over former copyright acts.

For example, this very matter of the right to mechanically reproduce would attach to a piece of music which had been previously copyrighted and of which a copy is now filed under this statute, and all the privileges of the bill except the longer term would attach to old copyrighted music which is simply refiled. So it would be possible to make the provisions of this act retroactive, so that the publishers, upon taking this proceeding, for 50 cents, with all their copyrighted music, would immediately cause the loss of the millions of dollars that have been invested in those rolls.

Mr. CURRIER. That has been discussed by several gentlemen, and objection taken to it--the same objection you are discussing now.

Mr. BURTON. Very well; I will not talk of that.

Mr. CHANEY. His point is that he would let the copyright go to each one of these interests, as I understand it.

Mr. CURRIER. That is on another point, however. He is speaking about section 3 now, in reference to subsisting copyrights.

Mr. BURTON. In section 3 there is a provision which ought to be changed to prevent the subsisting copyright from carrying over these provisions into the new----

Mr. CURRIER. That has been discussed by several gentlemen.

Mr. BURTON. Then if you are not going to make it retroactive--I judge the committee is clear upon that point--so as to bring under a copyright and make infringements all these outstanding millions of rolls, the question next should be, Should it be possible for the composer, by copyrighting now his perforated roll or taking any steps under this statute, to have the right from this time on to control the cutting of music which has heretofore been cut?

That strikes one at once with a little semblance of justice; but the injustice of that proposition consists in this: That for every piece of music which has been cut by a manufacturer, that has been lawfully cut under the present decisions, where he has a perfect right to do it, he has been obliged to expend from $10 to $25. He has that much investment lying under this music that is out in the market. Now, if it is not reasonable that all this outstanding music, lawfully made and lawfully sold, should become outlawed by a new act, is it reasonable that all this provision for making that investment, which amounts to millions of dollars, in the preparation for cutting this music, should become outlawed immediately, so that no more compensation can come to this manufacturer who has this $25 or this $10 invested in each piece, and say to him: "You can not use that music; you can not cut any more of that music?" Is it reasonable that that investment should be killed--that that investment, lawfully made, in a lawful product, should become immediately unlawful and waste paper?

Mr. WEBB. What section has that effect?

Mr. BURTON. I do not say the bill would certainly have that effect. It is entirely uncertain, but it seems to me the bill would have the effect, as I read it, of permitting the composer to claim the rights except as to outstanding music--that is, the right from this time on to cut it. The bill should be clear. I have had only a very short time to examine it, and a provision may possibly lurk somewhere under which the continued production of perforated rolls now being produced would be permitted, but I think not. I think it is possible, or might be held possible, under the bill for the composer to claim the rights from this time on to cut the music.

Mr. CURRIER. Oh, very clearly so; he can sell that right.

Mr. BURTON. If that is the case, it seems to me unjust.

Mr. CAMPBELL. Where the copyright has run out?

Mr. CURRIER. No; for copyrights taken out after the passage of this bill.

Mr. BURTON. I am talking about the music that is now on the market, not the rolls, but the means of cutting them--whether the composer can, under this bill, acquire the right to stop the cutting from now on of that music.

Mr. CURRIER. I do not think you need to take any time with that proposition.

Mr. BURTON. If that is clear, I will pass it. It seems to me the bill gives it; but if you make it entirely clear that it does not----

Mr. CURRIER. It is not the purpose of the committee, I judge, to allow that. Your time has expired.

Mr. BURTON. Then I will ask leave to file a complete brief suggesting changes.

Mr. CURRIER. And I might say to you what has been said to others here--that neither the Senate nor the House committee will take any action on this bill at this session. It will go over until next winter, and at any time before action is taken you can file any further brief or any further suggestions with the committee.

Mr. BURTON. I thank the committee on behalf of the interests I represent.

_To the Senate and House Committees on Patents_:

Pursuant to the permission granted me at the conclusion of the few
minutes' oral hearing with which I was favored before the joint
meeting of your committees, I beg to submit herewith a brief and
suggestions with respect to the amendments to Senate bill 6330 and
House bill 19853, deemed proper and necessary in order to make the
act contained in said bills properly protective of the rights and
conservative of the interests arising out of and connected with the
industries of automatic musical instruments and controlling
devices--perforated rolls, talking-machine disks, and phonograph
cylinders--for the same.

All of which is respectfully submitted.

The following facts should be taken into consideration in making
any amendment to the copyright law affecting automatic reproducing
devices as well as perforated rolls for reproducing music,
talking-machine disks, and phonograph cylinders for their
respective purposes.

1. To the modern arts relating to automatic music-playing devices
and automatic means for reproducing sound, such as talking machines
and graphophones, authors and music composers have contributed not
a single iota.

These arts have been the result of the combined efforts of
thousands of scientific, industrious, and artistic inventors. These
inventors and the manufacturers cooperating with them by their
capital and business skill and enterprise have created these entire
arts and to them is due the entire benefit which the public has
derived and is deriving from these arts.

2. Musical composers and song writers, notwithstanding their entire
lack of participation in the creation and development of these
arts, have derived already and are still deriving large pecuniary
benefit from them.

This is most clearly provable in respect to musical compositions.
For any musical composition which has been largely reproduced by
automatic players employing perforated roll controllers a largely
increased demand immediately arises. The sale of the ordinary staff
notation of any such composition experiences a notable stimulus
immediately upon the production and sale of the perforated rolls
for producing the composition automatically upon musical
instruments.

This fact is conclusively established by the record in the suit
of Apollo _v._ White-Smith Music Publishing Company, lately
determined in the United States circuit court of appeals in the
eastern division of the southern district of New York. We are
filing herewith a copy of the printed record of the defendant in
that suit, having marked the pages[1] containing the testimony
upon this point, and also a copy of the brief on behalf of the
defendant citing[2] the facts as established by the record upon
both sides to the effect that in the face of the testimony by
wholesale and retail dealers in sheet music, that the sale of
perforated rolls for such music largely and promptly increased
the demand for the sheet music, there was offered not one word
of testimony to the contrary, although in the control of the
complainants and available as witnesses in their behalf--practically
as cocomplainants or cobeneficiaries with them in the suit--were
included nearly all the large publishers of and dealers in sheet
music, whose records of sales would have established the facts one
way or the other overwhelmingly, so that the absence of testimony
from these sources must be taken as an admission of the fact as
testified to by the few publishers who were accessible to the
defendants.

[1] Schleiffarth, pp. 48-51; McKinley, pp. 97-100; Lutz, pp.
100-101; Jansen, pp. 131-133.

[2] Pp. 29-34.

We assert, and challenge contradiction, that the experience and
observation of the music trade during the past ten years, during
which this art has grown from infancy to its present proportions,
establishes the proposition, viz, that the sale of perforated rolls
and other means for automatically reproducing musical compositions
to the ear tends largely to increase the demand for the ordinary
staff notation or other published form of the particular
compositions which are thus reproduced.

3. The making of a perforated roll or equivalent device or
appliance for reproducing to the ear a musical composition is not a
mere mechanical process nor one involving mere mechanical skill. It
is, on the contrary, an artistic process requiring musical taste
and ability and affording opportunity for the exercise of the very
highest musical taste and ability, conjoined with the most exact
and delicate understanding of the mechanical principles and
features of the mechanism with which the controller device--perforated
roll or the like--is designed to cooperate for reproducing the
music to the ear. The art of the "arranger," as he is termed, of a
perforated roll brings into exercise an artistic sense and skill
of as high a rank as that of the musical composer and requires, in
addition thereto, an ability to understand accurately and minutely
the intricate mechanism to which the device produced must
correspond and with which it must cooperate.

In the case of the talking-machine disk and phonograph cylinder,
the contribution of the singer and player is even more obvious, as
the essential and controlling element in the value of the devices
which result and which are the distinct product of the art of the
singer and player is a thing apart from the art of the composer.

The producer of a perforated roll or of a talking machine disk or
phonograph cylinder, therefore, is as much entitled to be
considered an "author" in virtue of the production of such roll,
disk, or cylinder, entirely apart from and subsequent to the
composition of the music as is the painter by virtue of his
sensitive appreciation of beauties of form and color in nature and
his skill in reproducing them upon the canvas. The landscape
painter does not create the nature scene, but he is not the less
an artist because he depicts it only, instead of creating it from
his imagination. Nor is he less entitled to a copyright upon his
painting, because it is a more or less perfect reproduction to the
eye of that which existed for the eye before he reproduced it,
than if he had evolved the scene from his imagination and then
depicted it to the eye by the same skill.

The photographer who merely posed his subject is entitled to a
copyright upon his photograph. He did not cast the features, nor
shape the form, nor arrange the hair, nor devise the costume. He
merely posed them all, and chose the position with respect to
light and shadow, and adjusted the contrivances for affecting
both. This was his art, and the photograph is the result; and it
is his photograph for purposes of copyright.

The "arranger" of the perforated roll is an artist of as high
merit as the photographer, and in some respects of as high merit
as the landscape painter.

If there is to be secured or conferred upon anyone an exclusive
right to the perforated roll, or to the talking-machine disk, or
to the phonograph cylinder, for producing to the ear a particular
composition, that right, in virtue of authorship, belongs to the
arranger of the perforated roll and to the singer or player who
produces the talking-machine disk or the phonograph cylinder.

That copyright may reasonably be granted to the producers of these
devices for the devices themselves seems too obvious for argument,
and that it should not be in the power of any composer whose
composition is published and on the market to discriminate between
different arrangers of perforated rolls or different singers or
players, in respect to the right of making such records,
respectively, and of selling or renting the same, seems also
obvious justice.

It would be no injustice, in view of the observed facts above
stated--that the composer derives benefit only and never injury
from the sale of these automatic devices--that he should have no
rights in respect to them, except to be credited with the
compositions by having them marked with the title which he has
given them for market and with his name as composer. But in view
of the possibility that there may be reciprocal advantage--that
the name and repute of the music and of its author may contribute
to the sale of the reproducing devices--a royalty for the use of
the title and name may reasonably be allowed to the composer.

But the composer should not be recognized as having any right
entitling him to prohibit anyone who desires to do so from making
such automatic reproducing devices by employing either the art of
the arranger of the perforated roll, or the voice of the singer,
or the skill of the player on musical instruments.

And the royalty should be uniform for all makers of each sort of
device; that is, all makers of perforated rolls for a given
composition should pay the same royalty to the composer for the
use of his name and the title of his music, and all makers of
vocalizing disks or cylinders should likewise pay the same royalty
for a given composition.

This right to royalty should be allowed, not in virtue of any
domination or supposed domination of the original copyright over
the act of reproduction, but solely in virtue of the natural right
of the composer to have his name and the title which he has given
to his music associated therewith, howsoever it is produced, and
of the fact that presumably a commercial value attaches to such
name and title, which will benefit the seller of the automatic
reproducing device.

This right of royalty should therefore not run to the proprietor
of the original copyright as such, but to the composer as such. If
the composer has sold his copyright the purchaser should not, by
virtue of that purchase, acquire any interest in the royalty of
the composer for the use of his name and the title of his music.
Of course the composer could sell this royalty right, and if he
chose to sell it with the copyright and to the same person he
could do so, but it should not pass without express mention. It
should not pass as incident or appertaining to the copyright.

Such a provision would be precisely like the provision in the
present statute with respect to translations. In the statute it is
now provided, not that the copyright includes the right of
translation, but that the author whose work has been copyrighted
has the exclusive right of translation. He may sell his copyright,
but such sale does not divest him of the monopoly of the
translation nor vest such monopoly of translation in the assignee
of his copyright.

NOTE.--This point is somewhat fully developed in brief of the
defendants in White-Smith Music Publishing Company _v._ Apollo,
copy of which brief is herewith furnished. (See p. 46 to 50,
inclusive.) The position above stated and presented in brief, as
above noted, was not controverted and was apparently fully
conceded as a legal proposition, by counsel for the complainants
in that suit. The ultimate propositions supported by the above
contention in that suit were contested upon other grounds. Copy of
complainants' brief upon this point will be furnished the
committee later, with citation to the particular paragraphs
sustaining the above statement.

Outside of and as an exception to the general class of musical
compositions to which the foregoing considerations are pertinent,
there is a class more closely related to automatic reproducing
devices and in respect to which the composer has a more vital
interest, viz:

Musical compositions not reproducible to the ear by a single human
performer upon any instrument, but which can be produced by means
of perforated rolls on an automatic instrument.

The staff notations of such compositions have practically no
market value, except in case they are arranged in the forms of
orchestral scores, so as to be produced by a plurality of
instruments simultaneously played by different performers. The
number of copies of such orchestral scores which will be required
is necessarily very limited, and the sale of such staff notations
offers a very limited field from which the composer may derive a
just compensation for his work. The only source of revenue to the
composer of such works is in the sale of the only means of playing
these, viz, the perforated rolls.