Part 32 (1/2)

Mr. DAVIS. Proceeding further, Mr. Olin said he was not interested in the introduction of any clause restricting the mechanical reproduction of music; that he was satisfied to leave that to the courts, and let the courts give the construction of that word ”writing” in the Const.i.tution. They have been at work at it for many years, with the result that a machine remains a machine and not a ”writing.”

Mr. WEBB. Mr. Davis, your idea is that if the composer or publisher copyrights a piece of music and sells it and in the sale gets whatever price his copyright or royalty gives him, and you buy it, or anybody else buys it, that that purchaser has a right to play it or sing it in public or private, or anywhere else he pleases?

Mr. DAVIS. No, sir; I do not say that, exactly, sir----

Mr. WEBB. What is your position, then, if that is not your position?

Mr. DAVIS. Your proposition brings up the question of public performance. I say that the composer's rights are limited under existing laws to all benefits which he may receive from his visible, readable ”writings” expressing his original musical conceptions, and that he can make copies of it in any manner he sees fit; but he has not the right to usurp the rights of an inventor to reproduce that music through self-acting mechanical means in public or private. The inventor has a peculiar field here. The Const.i.tution, as I would translate it, in layman's language, says: ”Now, Mr. Inventor, if you can come in and invent a machine in which the melodies that would otherwise be lost can be forever preserved and reproduced to the public for the public benefit, you shall be protected.” This includes public performances. We do this in a way that does not decrease Mr.

Sousa's income, but increases it, as I have explained.

Mr. WEBB. If a man goes to a store and buys a piece of copyrighted music he expects to have the right to sing it and play it anywhere he pleases; otherwise, what does he want to buy it for?

Mr. DAVIS. That is the human agency. Mr. Sousa's compensation may or may not cover all human agencies for reproducing that music, including public performances, and concerning which the inventor is not specially interested. The inventor should have the right to all mechanical agencies, where the human agency does not enter into it in any way whatever, including public performance.

Mr. WEBB. Well, they say you can use your mechanical devices wherever you please, just so you do not use their music.

Mr. DAVIS. Well, Mr. Sousa is not construing the laws. I am telling you my idea of the laws, as I understood them when I entered into this art ten years ago, and as the courts have sustained them right up to a few days ago.

Senator SMOOT. Mr. Davis, as I understand you, you would not object at all to paying a royalty for any music that you may use upon any instrument that you may have invented or produced, providing that that same royalty is paid by all other concerns or individuals, and that all other concerns and individuals may have the same right to use it as any particular one that the producer of the music may even try to designate himself?

Mr. DAVIS. Individually--and I believe I represent the cla.s.s of inventors affected by the proposed act--and without retreating from the stand I have taken regarding our present rights, I would not object, because I recognize that remote ethical right which you are casting about to secure and deliver over to the composer together with the many other new gifts in the bill. If you can protect it in some such way as will meet my many objections, we inventors will be satisfied, but I am constrained to say that I think your efforts will be futile.

The CHAIRMAN. I think that is all, Mr. Davis. You can submit in writing any further statement that you desire to make.

Mr. DAVIS. Thank you; and may I submit later the evidences and proofs to which I have referred?

The CHAIRMAN. You may do that.

Mr. DAVIS. Senators and Representatives in joint committee a.s.sembled, I thank you for the close attention which you have given to my remarks and for the liberal extension of time within which to make them; and on behalf of the inventors of this country I a.s.sure you of our full confidence and belief that you will finally modify the proposed act in a way that will protect our properties and persons against the monopolistic giants who do now or may hereafter seek to destroy us.

Mr. SOUSA. Mr. Chairman, the gentleman referred to ”visible music.”

Now, as I think you can see, that [referring to sheet music] is music, one notation. This [indicating perforated roll] is a perforated roll.

That is visible; that is music in another notation. That is what they are taking [indicating perforated roll]; that [indicating sheet music]

is what we are paid for.

Mr. HERBERT. Mr. Chairman, one word. Mr. Davis has made a statement which is absolutely untrue. He said, speaking about the aeolian Company and this contract which they have signed, or made the publishers sign with them, that ”They control the publishers and the publishers control the composers.” That is absolutely untrue in my case. n.o.body controls my works, the works that I am going to write. I am going to bring out a work in September, of which I have only written a few notes so far. I do not even know what I am going to write, and n.o.body has a contract with me to-day. I want to state most emphatically that I have not even been approached by any firm for the future.

Mr. CURRIER. Who is your publisher?

Mr. HERBERT. Mr. Whitmark, of New York.

Mr. CURRIER. Has anybody else published any of your music?

Mr. HERBERT. Yes; Schubert & Co., Schirmer & Co., and so on.

Mr. CURRIER. Do you mean lately?

Mr. HERBERT. That was before I went with Whitmark.