Arguments before the Committee on Patents of the House of Representatives Part 7

I would suggest that you include in there, on line 14 of page 14, after the word "composition," the words "any talking-machine record;" so that there would be no room for doubt but what talking-machine records are intended to be included.

For this purpose I would also amend section 5 (p. 4, lines 2 and 3) by adding between lines 2 and 3, before the word "Phonographs," the following: "(j) Talking-machine records."

I want to say one more word in that regard: The talking-machine record is a new art. At the time that the former acts were pa.s.sed and the Revised Statutes it had not acquired the state of perfection in which it is to-day. The talking machine is a writing upon a record tablet--not to be read visually, but audibly to be read through the medium of a vibrating pencil engaging in the record groove. This reproduces the thing that is uttered, in the characteristic manner in which it is uttered, and therefore that particular thing ought to be the subject-matter of a property right.

For instance, we might say that a particular piece would be sung or played by some country bra.s.s band, such as Mr. Sousa alludes to. The instrumentation there of that particular piece as recorded would be as different from the instrumentation of the particular piece when played by Mr. Sousa himself, from the stage of one of the great opera houses, as could be imagined; and what should be protected there is the particular instrumentation as it is played by Mr. Sousa, as he has rendered it. The same thing applies to any orator, or any actor, or any recitationist. It is a picture of the voice, as perfectly as a photograph is the picture of a man, or of a thing; and all the personality and all the characteristics of speech of the man uttering it are there recorded.

Mr. BONYNGE. Do you mean that if that lecturer delivers the lecture to one of the talking machines that you should take a copyright upon that disk, or whatever it is, that record, I suppose is what you call it, so as to prevent him from giving another reproduction of the same lecture to another talking machine?

Mr. PETt.i.t. No, sir. That would be his right. His lecture is copyrightable. He has a perfect right to copyright that in the ordinary manner, and he has the further right, if he pleases, to have it copyrighted through the means of a talking-machine record, or, with his permission, we could do so. But wherever the thing is primarily copyrighted we could not use it in any sense without his permission.

Mr. BONYNGE. Yes; but after he has copyrighted it and you have got his permission to use it in your particular talking machine and have paid him whatever you may have agreed to pay him as compensation for the use of it, would you seek to prohibit him from giving that same lecture to another talking machine?

Mr. PETt.i.t. That would depend entirely on the terms of the contract; but that is not the idea at all. It is merely the means of recording a voice, the production of a particular man or band, or instrumentation, with all the characteristics of that particular voice or instrumentation, which we think should be subject to copyright.

Mr. CHANEY. Do you not think, then, if you want that sort of an amendment to section 18 that you should also amend section 4?

Mr. PETt.i.t. No, sir; I do not think that is necessary.

Mr. CHANEY. You think that includes it?

Mr. PETt.i.t. I think section 4 is broad enough to include it. You will understand that section 4 is understood to include a photograph. It is understood to include everything which is the subject-matter of copyright.

Mr. CHANEY. I was just about to ask this: Understanding that this talking machine is a new arrangement, and was invented later than the date of the original copyright law, by that very fact it might be necessary to mention it in section 4.

Mr. PETt.i.t. Well, I a.s.sumed that the word "author," as used by the Librarian of Congress in presenting the bill, was sufficiently broad to include anything which was originated of that character: and, as interpreted by the courts, for instance in the Sarony case (111 U. S.

Repts., 59), it has been decided that the word "writing" was broad enough to include a photograph, and that therefore it would not be necessary to amend section 4, provided section 18 had specifically in it the words "talking-machine record," showing that it was meant to be included. Of course I should not object to including it. I should not object at all to having section 4 amended for that purpose, but I doubt whether it would be necessary under the circ.u.mstances.

Mr. CHANEY. You would be satisfied without its amendment?

Mr. PETt.i.t. I think so, provided the talking-machine record was inserted in sections 5 and 18.

There should be no question but that the particular characteristic utterances of a singer, or recitationist, or of an actor, or of an orator, or the particular instrumentation of a pianist, or leader of an orchestra, etc., independent of the composition itself, whether it is copyrighted or not, should be equally ent.i.tled to protection, as a photograph or reproduction of a work of art.

The present-day thoughts and ideas may be recorded and reproduced through this new form of writing--that is, by recording the uttered sound upon a properly prepared surface in a sound groove, by which the varied undulations of the voice are formed in the groove by corresponding undulations, lateral or vertical. Here we have a true writing of the voice, recording uttered sound, recording not only words, thoughts, and ideas, but also recording the special particular expression and characteristic method of speech employed by the person uttering the sound. In other words, we have the exact voice, with all its individuality recorded, to be reproduced through the medium of the reproducing device employing a stylus operating in the groove.

Certainly a sound record is within the contemplation of the Const.i.tution and should be unquestionably included in this proposed new act relative to copyrights.

It matters not whether the subject-matter of the record is otherwise copyrightable or not. If the piece played is copyrighted as a musical composition it can not be reproduced on a sound record, in accordance with the bill, without the permission of the composer. A Paderewski, however, may play the copyrighted selection, and a record of his rendition of it, with all his personality and individuality thrown into the piece, should be ent.i.tled to a copyright on a sound record for reproducing purposes.

This is true, also, of the voice of a Caruso or a Melba singing either a copyrighted or uncopyrighted piece. It is true, also, as a further ill.u.s.tration, of the recitation by Henry Irving of "Eugene Aram's Dream." What is here copyrighted in these records is the individuality and personality of the rendition by the performer. It is the picture of the voice or of the instrumentation as, for instance, a copyrighted photograph is a picture of a person or thing.

Should another performer play the same piece played by a Paderewski the personality of Paderewski would be absolutely wanting, and the same difference between the two performances of the same composition would be in the respective sound records as would exist at the actual performance of the respective pieces. The same differences between Caruso's rendition of a selection from Rigoletto and a concert-hall singer's rendition of the same would exist in the sound record and the reproduction therefrom as would exist in the actual singing of the selection. This is true regarding the personality of every voice and instrumentation recorded.

A large portion of the selections, musical and recitational, on talking-machine records are not copyrightable or copyrighted. These records, however, with all their originality, personality of the recitationist or singer, and peculiarity of arrangement, etc., should be copyrighted, and the private compet.i.tor prevented from purloining an artistic and characteristic production.

So-called talking-machine records in this respect differ quite materially from the mechanical organ and piano for the reason that a so-called talking-machine record is an exact record of all the modulations, and all the characteristic articulations of the voice, as well as of all the characteristics of an instrumentation. In other words, it is an exact picture of all the merits and demerits of the original, and the original is reproduced with an exactness, so that frequently, at a distance, in the present perfected state of the art, the reproduction may very well be mistaken for the original.

This record of the voice and instrumentation for sound reproducing is an art which was not commercially available or perfected when the earlier copyright laws were pa.s.sed, and therefore was not included.

The following were submitted by Mr. Pett.i.t at the meeting of June 8, 1906, embodying his proposed amendments to the bill:

JUNE 7, 1906.

_To the honorable Joint Committee of the Senate and House of Representatives._

GENTLEMEN: Referring to the proposed bill, "To amend and consolidate the acts respecting copyrights," now before the committee, I would propose the following amendments:

Amend section 3 (p. 3, line 8) by adding continuously at the end of said section the following:

"_And provided_, That no devices, contrivances, or appliances, or dies, or matrices for making the same, such as referred to in clause (_g_), section 1, made prior to the date this act shall go into effect, shall be subject to any subsisting copyright."

Amend section 5 (page 4, lines 2 to 3) by adding between lines 2 and 3, before the word "Photographs," the following: "(_j_) Talking-machine records."

Amend section 18, clause (_b_), (page 14, line 14) by adding between the word "composition" and the word "any" the words "any talking-machine record."

Amend section 23 by striking out from the clause marked "First"

(page 17, lines 18 to 20) the following: "or any device especially adapted to reproduce to the ear any copyrighted work."

Amend section 23 by inserting in the clause marked "Fourth" (page 18, line 4), between the words "of" and "all," the following: "any device, contrivance, or appliance mentioned in section 1, clause (_g_) and."

These amendments to section 23 are for the purpose of making the penalty relative to unlawful use of devices, etc., enumerated in section 1, Clause Z, one dollar instead of ten, which latter amount is excessive. It puts the device for reproducing sound on basis of books, etc., instead of in the cla.s.s of paintings, statuary, or sculpture.

A brief memorandum of argument will be submitted later.

Senator SMOOT. I would like to ask Mr. Sousa a question. I was very much interested in your statement, Mr. Sousa, pertaining to talking machines taking the place of the human voice, and I will ask you this question: If you were protected in your productions and received a royalty from the talking machines, would that lessen the use of the talking machines any and strengthen the use of the voice and the bra.s.s band and the home choir, and so on?

Mr. SOUSA. I do not think so, but I think it will reduce two wrongs to one.

Senator SMOOT. Then, it is simply a question of your receiving the royalty that you think you are ent.i.tled to?

Mr. SOUSA. Yes, sir.

Senator SMOOT. I think there are other causes besides the general use of the talking machine that account for the fact that there is less singing than there used to be. I think we do not live quite as close to nature as we used to, and that that is what used to make us sing.

Mr. SOUSA. That is very true. But the more leeway you give the talking machine the greater encroachments they will make. If they are made to pay a royalty on all compositions that they use, perhaps they will not have so many bad ones in their records. [Laughter.]

Senator SMOOT. That is what I intended to find out, as to whether it was simply a personal affair.

Mr. CAMPBELL. Is not the real reason that if it protects you and other composers, there is an incentive to you to compose?

Mr. SOUSA. Oh, yes; I can compose better if I get a thousand dollars than I can for six hundred. [Laughter.]

Mr. CAMPBELL. That is the real reason.

STATEMENT OF PAUL FULLER, ESQ., OF NEW YORK.