Part 54 (2/2)

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 ill.u.s.tration 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 cla.s.s 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 cla.s.ses, 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 Publis.h.i.+ng Company _v._ Apollo Company, which testimony was never reb.u.t.ted 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, ill.u.s.trating 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 inst.i.tution?--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 inst.i.tution 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.

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