Arguments before the Committee on Patents of the House of Representatives Part 56

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 authors.h.i.+p requisite goes upon a mere a.s.sertion, 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 pa.s.s by an a.s.signment 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 pa.s.sed by separate a.s.signments, 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 ent.i.tled to handle it entirely himself, apart from any right that he may have pa.s.sed 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 pa.s.sage 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 pa.s.s 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 partic.i.p.ation 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 Publis.h.i.+ng 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 a.s.sert, 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 ent.i.tled 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 ent.i.tled 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 ent.i.tled 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 authors.h.i.+p, 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 t.i.tle 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 t.i.tle and name may reasonably be allowed to the composer.

But the composer should not be recognized as having any right ent.i.tling 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 t.i.tle of his music, and all makers of vocalizing disks or cylinders should likewise pay the same royalty for a given composition.