Chapter XLIX: Section 4966: should be amended by making clear that it relates

only to dramatic performance, while it includes such performance
of compositions which are musical as well as dramatic. And all
provisions of the present bill exceeding such protection should be
limited.

_8. As to right of translation._--The present bill makes a radical
departure from the present statute in respect to the right of
translation of a copyrighted work into other languages. Under the
present statute, as above noted and presented in the brief cited,
the right of translation inheres in the author as author,
conditioned only upon copyright having been obtained of his
original work, but not conditioned upon that copyright remaining
in him. His assignment of the original copyright does not carry to
the purchaser, or divest from the author, the right of
translation. The translation, when made by the author, is his own
product. He may copyright it or not as he pleases; but the owner
of the original copyright has no right in the translation unless
expressly conveyed to him (which may be done, of course, by
express mention in the conveyance of the original copyright, or by
the transference of the manuscript of the original work before
copyright, putting the purchaser in the position fully of the
author as to all the rights arising out of authorship).

The present bill, however, makes the right of translation not
merely one which is conditioned upon the existence of copyright of
the original work, but an essential and integral part of that
copyright, so that it will pass with the assignment of the
copyright without special mention, and the proprietor of the
copyright, and not the author, would thereafter have the right of
translation. The author could not translate his own work without
infringing the copyright which he had sold to the proprietor. Any
translation, however maladroit or misleading, which the copyright
owner--publisher--might approve would pass under the author's name
as his work into the foreign language, and he would have no voice
to protest against the libel, no power to remedy the injury by
putting out a correct translation.

It can not be doubted that such considerations as these governed
in the enactment of the present statute in such form that the
right of translation inheres in the author and does not pass
without his express act, though the original copyright may have
been assigned. It is obvious that the author ought to have a right
in respect to translation which will not require express
reservation in order to remain his own when he sells his
copyright. It will be apparent that negotiations between an author
and publisher for the sale of his copyright will commonly proceed
in general terms, referring to the copyright by that term, and
that the author will commonly be considering only what may be
termed the original copyright in such negotiations, and that he
will in some instances convey the copyright with no thought of the
appurtenant rights involved in it, and will wake up only too late
to find that he has no control over translation, if the term
"copyright" carries the whole right, including that of
translation, as the present bill provides.

The statute is right as it stands and the bill should be amended
to conform to the present statute in this respect.

I have drafted amendments to the various sections and paragraphs
of the bill such as are necessary, in my judgment, to make it
conform with the requirements of equity to the different interests
affected, and with sound public policy, in the various respects
above pointed out and discussed, and would submit them herewith,
but find that they are so numerous and require insertions and
emendations at so many points in the bill that I believe the
purposes of the committee will be much better served by the
submission a little later of a full draft of a bill embodying the
various changes which I would suggest, so that the matter may be
considered in a form consistent throughout instead of in the
piecemeal form which would result from the many amendments which
would be required to put the present bill in desirable form.

Such completely framed bill I promise to submit to the committee
at an early day and in ample time for full consideration upon the
reassembling of the committee in the fall.

Thanking the committee for the opportunity which has been afforded
me for presenting my views in the interest of my client, I am,

Respectfully,

CHAS. S. BURTON,
_Representing Melville Clark Piano Company_.

STATEMENT OF NATHAN BURKAN, ESQ., OF NEW YORK CITY.

Mr. BURKAN. Gentlemen, there has been a great deal said here about this "monopoly," this great "music trust," that intends to----

Mr. CHANEY. You are a publisher, are you?

Mr. BURKAN. I represent the Music Publishers' Association. This combination between the Music Publishers' Association and the Æolian Company, the purpose of which is to destroy the independent manufacturers of perforated rolls, cylinders, and disks adapted to reproduce musical sounds.

I think we should at this time refer to the history of this alleged contract between Æolian Company and some of the publishers. A number of years ago an action was brought in the circuit court of Massachusetts to restrain the manufacture and sale of perforated rolls on the ground that such perforated rolls infringed the complainant's copyright on his musical composition. The case was argued before Judge Colt, and he decided that a perforated roll was not a copy of a sheet of music, and therefore not an infringement of the copyright. (Kennedy _v._ McTammany, 33 Fed. Rep., 584.) A number of years thereafter another action was begun in the District of Columbia, the case of Stern _v._ Rosey, to restrain the manufacture of cylinders and disks adapted to reproduce musical sounds--applying particularly to talking machines. That court decided against the publisher. Thereafter these companies grew up, one after another, and manufactured rolls, disks, and cylinders, and appropriated for use upon these devices the property of the composer, for which he did not receive a dollar.

The Æolian Company, the pioneer in this line of industry, became a very large concern, investing millions of dollars in the establishment of a plant and in the manufacture of these rolls. They knew, or were advised by counsel, that this question, whether a perforated roll adapted to reproduce a copyrighted musical composition was not a "copy" of the composition within the meaning of the copyright law, was uncertain; it had never been decided by any appellate court. And it was very essential for the welfare of the company, and for the protection of its interests, to ascertain whether in fact it was infringing upon a copyright every time it made or sold a roll.

The ACTING CHAIRMAN. Do you represent the Æolian Company?

Mr. BURKAN. No, sir; I do not. I have no interest in the Æolian Company. I never appeared in any action for it, am not appearing for it now, and do not expect and will not receive or accept any compensation for my services here. I represent the music publishers, and I am a friend of Mr. Victor Herbert.

I desire to reiterate that the Æolian Company was advised by able counsel that there was some doubt about this proposition. The Æolian Company, to protect its property, and in order to settle this question once for all, sent its agents to several publishers who stated to them: "Gentlemen, we have sought legal counsel--the ablest that we could find in the city of New York--who advise us that there is grave doubt as to whether the manufacture by us of these perforated sheets do not infringe your copyrights, and that question ought to be determined by the highest court or the land."

No single publisher, gentlemen, had sufficient funds to carry on such an expensive litigation, because these music publishers are not the millionaires that our friends on the other side have attempted to point out and show. Most of them are poor men. No single composer would be able to supply the funds to carry on such a litigation. There was a great deal involved; and when this company came and said: "Gentlemen, we will take up this litigation; we will try to establish your rights; but for our trouble, if we do establish your rights, if we can get the highest court in the land to decide that the present copyright laws are applicable to these perforated sheets, then we want the exclusive rights to manufacture perforated rolls adapted to reproduce your music upon specified royalties for a number of years."

Was there anything inherently wrong in that? A number of publishers naturally jumped at that offer. It would mean to a large publisher thousands of dollars if the courts decided in his favor. At the time when this offer was made, the perforated roll companies were appropriating his copyrighted music for which he received not a single penny. And the contract that was entered into between the Æolian Company and some of the publishers, a copy of which was offered in evidence here, provides that the consideration for this agreement was this litigation. Nothing was concealed; everything in connection with this contract was done in the open, and the consideration for the contract is expressed in the contract as follows:

And for and in consideration of the premises the Æolian Company
hereby covenants and agrees to pay all proper expenses of
conducting such suit for the purpose of testing the applicability
of the United States copyright laws to perforated music sheets of
kinds aforesaid, and that if the court of last resort shall in such
suit decide that the United States copyright laws are applicable to
such perforated music sheets, then and in such, case and from that
time forward the Æolian Company will keep the books of account and
pay the royalties.

These gentlemen, the publishers who made this contract, did not have in mind the creation of a monopoly. Each publisher, naturally, as any other business man, wanted to get something for his property, and it was very advantageous to the publisher to get the highest court to decide in his favor, without paying the enormous expense of such a litigation. Mr. Davis, the inventor of these perforated rolls, properly said--he said it truthfully and honestly--"My invention depends upon Mr. Sousa and Mr. Herbert and their compositions." The music of these gentlemen is a component part of my invention.

The ACTING CHAIRMAN. The Æolian Company, as the law stood, did not have to pay to musical publishers a cent?

Mr. BURKAN. Not a cent.

The ACTING CHAIRMAN. What was their object in getting a decision of the court which would force them to pay large sums to the musical publishers?

Mr. BURKAN. They are the largest manufacturers of these rolls in the world. They have manufactured thousands and thousands of these rolls representing the best copyrighted compositions. Suppose a large number of publishers or a number of public-spirited men had gotten together a fund, and suppose a case to test the applicability of the present copyright laws to perforated rolls had been carried to the highest court and won--then the Æolian Company would have been obliged to account for all its profits on these perforated rolls to the publisher, and would have been obliged to pay Mr. Herbert, Mr. Sousa, Mr. Chadwick, Mr. Damrosch, and other composers thousands of dollars in back royalties; whereas under this agreement the Æolian Company protected itself, because the publisher who signed it consented to the use of his composition for the perforated rolls, and he would have been estopped under such agreement from suing for an accounting of profits.

The ACTING CHAIRMAN. Yes; but the Æolian Company originated this litigation.

Mr. BURKAN. Yes--very true, sir; very true. The Æolian Company (and I do not appear in this matter as its champion at all) had spent thousands of dollars to improve and protect its patents to these perforated rolls. It employs the most skillful and talented arrangers to arrange and edit these compositions embodied in the roll, so that when you purchase an Æolian record or roll and pay your $2.50, or whatever the price may be, you get a roll when used in connection with the playing instrument which gives an exact reproduction of the music as written by the composer, say, by Mr. Nevins, Mr. Chadwick, or Mr. Foote. There were a small number of companies that also sold perforated rolls, but instead of the rolls producing exact reproductions of the music they gave distorted and feeble imitations or versions of that music. They did not give to the public what the public was bargaining for, and instead of creating a taste and demand for this form of reproduction of music, the tendency was to destroy the taste and lessen the demand; and the result was not only to destroy this great industry, of which the Æolian Company was the pioneer and in which it was vitally interested, but also to injure the composer whose work was thus reproduced.

There is an artistic side to this question, sir. If you made a speech in Congress, Mr. Chairman, and I should get someone else to repeat your speech into a machine, and your speech lasted fifteen minutes, but in order to crowd it into a cylinder that is adapted to reproduce a speech of two minutes' duration, I should cut, distort, and disfigure it, and then it was reproduced to the public all over the land and sold as Mr. Currier's speech, you naturally would be offended. That is the artistic side of this case.

Mr. WEBB. You would have no right to represent it as his voice, his work.

Mr. BURKAN. That is what they are doing--representing it as his, the composer's work, and Mr. Herbert's work is judged by the reproduction of it by these mechanical devices. The public says, "That is Victor Herbert's composition," or "That is Mr. Chadwick's composition." And I want to say to the gentlemen here that this proposed law does not only cover music, but it covers poems, speeches, and stories.

Now, then, some of these men made this contract. This contract is solely dependent upon the decision of the Supreme Court. It is not dependent upon any legislation at all, and the Æolian Company took absolutely no part in this legislation. The Music Publishers' Association received an invitation from Mr. Putnam to appear at the conferences, and we appeared, and we naturally were interested in getting this legislation. But I say this----

Mr. CROMELIN. Mr. Chairman, may I interrupt one moment?

Mr. CROMELIN. May I deny that?

The ACTING CHAIRMAN. You will suspend.

Mr. BURKAN. The Æolian Company took absolutely no part, had nothing whatever to do with this legislation at all. And I say to you, sir, that if the purpose of these contracts is to stifle competition and to control the industry of making perforated rolls and talking-machine cylinders, then the Sherman Act covers contracts of this kind. I say to you that the Donnelly Act or antitrust law in our State (New York) is very stringent; if it should appear to Mr. Jerome or to the attorney-general of New York, in which State the Æolian Company has its principal place of business, that these contracts tend to stifle trade, or were entered into to destroy competition, each one of these conspirators could be sent to jail, and could be restrained by injunction from enforcing the contracts. We have antitrust laws, sir; and under those laws each of these men could be restrained by injunction from enforcing the contract and criminally punished for entering into it.

The ACTING CHAIRMAN. Your time has expired. Mr. Cromelin, you may have one minute to contradict any statement he has made.

Mr. CROMELIN. Mr. Chairman, just one minute. Just before leaving New York Saturday I spoke with the manager of the Æolian Company, and I wish this to go on record--that he told me that they did not want to oppose this legislation; that they had contracts; and when people have contracts of this kind they do not go to the house tops and proclaim the fact. The only reason you know of this contract, sir, is because it is a matter of record in the case of the Apollo Company in the second circuit of New York.

Mr. CHANEY. Do you mean to say that this contract is an improper one to make?

Mr. CROMELIN. Not at all; I did not say that, sir.

Mr. CHANEY. Then what concern is it to us, who are engaged in framing this bill, about that contract?

Mr. CROMELIN. The chairman asked the gentleman whether the Æolian Company was interested in this----

Mr. BURKAN. Absolutely not.

Mr. CROMELIN. And the manager of the company told me that they were.

The ACTING CHAIRMAN. It might occur to some members of this committee that if one concern was to get an absolute monopoly of making perforated rolls or musical disks, it did concern this committee.

Mr. BURKAN. Can I say a word, sir, on that point? There are hundreds of publishers, sir--hundreds of publishers who are under no contract with the Æolian Company; there are hundreds of composers who are under no contract with this company. You are legislating for the future, and it seems unfair that hundreds of publishers and composers, not parties to this agreement, should be punished because a number of publishers, 10 or 20, have made an unlawful agreement. That is the question that you must consider in connection with this "monopoly" charge.

Mr. WEBB. Now, you are a lawyer?

Mr. BURKAN. Yes, sir.

Mr. WEBB. May I ask you your opinion as to whether or not the word "writings," referred to in article 8 of the Constitution covers these rolls?

Mr. BURKAN. Yes, sir; yes, sir. If you will just allow me three minutes----

The ACTING CHAIRMAN. No; answer the question. I can not allow you three minutes, because we shall have to go over to the House. The hearings will be closed right here, as soon as you answer that question.

Mr. BURKAN. In the circuit court of appeals, White-Smith Company _v._ Apollo Company case, the court said in a decision involving the question as to whether a perforated roll is an infringement of the copyrighted work which it is adapted to reproduce, and it is important in connection with the claim that Congress has no power to enact this legislation----

The questions raised in these cases are of vast importance and
involve far-reaching results. They have been exhaustively discussed
in the clear and forcible briefs and arguments of counsel. We are
of the opinion that the rights sought to be protected by these
suits belong to the same class as those covered by the specific
provisions of the copyright statutes, and that the reasons which
led to the passage of said statutes apply with great force to the
protection of rights of copyright against such an appropriation of
the fruits of an author's conception as results from the acts of
defendant.

This language of the court is in itself, without further argument on the definition of the word "writings," sufficient warrant and authority for the Congress to enact this legislation.

(The hearings were thereupon announced closed.)