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Debate in Congress, Washington D.C. (1896)

Source: Cummings Bill, H.R. 6835, 54th Cong, 2d sess., Congressional Record 29 (December 10, 1896).

Citation:
Debate in Congress, Washington D.C. (1896), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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Chapter 1 Page 1


CONGRESSIONAL RECORD:

CONTAINING

THE PROCEEDINGS AND DEBATES

OF THE

FIFTY-FOURTH CONGRESS, SECOND SESSION.

VOLUME XXIX,

WASHINGTON:

GOVERNMENT PRINTlNG OFFICE.

1897.


Chapter 1 Page 2


1896.                  CONGRESSIONAL RECORD—HOUSE.                  85

[...]

DRAMATIC AND MUSICAL COPYRIGHT.

      Mr. DRAPER (when the Committee on Patents was called). I
call up Senate bill No. 23.06,.to amend Title LX, chapter 3, of the
Revised Statutes, relating to copyrights.
      The bill was read, as follows:

      Be it enacted, etc., That section 4966 of the Revised Statutes be, and the
same is hereby, amended so as to read as follows:
      "Sec. 4966. Any person publicly performing or representing any dramatic
or musical composition for which a copyright has been obtained, without the
consent of the proprietor of said dramatic or musical composition, or his heirs
or assigns, shall be liable for damages therefor, such damages in all cases to
be assessed at such sum, not less than $100 for the first and $50 for every sub-
sequent performance, as to the court shall appear to be just. If the unlawful
performance and representation be willful and for profit, such person or per-
sons shall be guilty of a misdemeanor and upon conviction be imprisoned for
a period, not exceeding one year. Any injunction that may be granted by
any circuit court of the United States, or by a judge thereof, restraining and
enjoining the performance or representation of any such dramatic or musical
composition may be served on the parties against whom such injunction may
be granted anywhere in the United States, and shall be operative and may
be enforced by proceedings to punish for contempt or otherwise by any other
circuit court or judge in the United States; but the defendants in said action,
or any or either of them, may make a motion in any other circuit in which he
or they may bo engaged in performing or representing said dramatic or
musical composition to dissolve or set aside the said injunction upon such
reasonable notice to the plaintiff as the circuit court or the judge before whom
said motion shall be made shall deem proper; service of said motion to be
made on the plaintiff in person or on his attorneys in the action. The circuit
courts or judges thereof shall have jurisdiction to enforce said injunction
and to hear and determine a motion to dissolve the same, as herein provided,
as fully as if the action were pending or brought in the circuit in which said
motion is made.
      " The clerk of the court, or judge granting the injunction, shall, when
required so to do by the court hearing the application to dissolve or enforce
said injuction, transmit without delay to said court a certified copy of all
the papers on which the said injunction was granted that are on file in his
office."
      Mr. DRAPER. I call for the reading of the report.
The report (by Mr. Draper) was read, as follows:

      The Committee on Patents, to whom was referred the bill (S.2306) entitled
"An act to amend Title LX, chapter 3 of the Revised Statutes, relating to
copyrights," have had the same under consideration and report as follows:
      The purpose of the proposed measure is twofold: First, to secure to mu-
sical compositions the same measure of protection under the copyright law as
is now afforded to productions of a strictly dramatic character. There can
be no reason why the same protection should not be extended to one species
of literary property of this general character as to the other, and the omis-
sion to include protective provisions for musical compositions in the law
sought to be amended was doubtless the result of oversight. The committee
is of the opinion that the existing law should be so amended as to provide
adequate protction to this species of literary production.
      The bill provides, secondly, for added means for the protection of authors
of dramatic and operatic works,
      In recent years the business of producing and staging plays and operas by
American authors has largely increased, and in many instances has met with
the very highist measure of success. Many of the best stage productions of
modern times have been the work of American authors.
      These productions in many instances have been carefully and elaborately
placed upon the stage at very heavy expense to proprietors and managers,
and their representation has given employment in various ways to thousands
of people.

[2nd column:]

      The existing law relative to copyrights has been found to be inadequate to
properly protect authors and producers of American plays and operas in the
enjoyment of their rights of property in these duly copyrighted productions.
      Persons in various sections of the country have, without the shadow of
right or authority, pirated these works, and, confining their operations chiefly
to the smaller and more remote towns, have given representations of these
stolen productions for their own individual profit, and without making any
compensation whatever to authors or owners. Under existing conditions no
adequate remedy exists for this unlawful usurpation of property rights.
      The offenders are almost uniformly men without attachable means, and
defy all the ordinary processes by which they might be mulcted in damages
The representation of these pirated productions is generally given for a night
or two only at a given place, and the offenders flit from section to section and
from State to State ana bid defiance to the processes of the courts seeking to
restrain their unlawful acts.
      Serious embarrassments have arisen in the efforts to enforce these judicial
orders and to punish offenders for disobedience of them.
      While it is true that an injunction order issued by a court of competent
jurisdiction is operative upon the conscience of the party restrained every-
where in the United States, it appears that an attachment for contempt of
such order can not be executed except in the circuit of the court which issued
the original order, and this bill seeks to overcome this difficulty.
      The bill further provides that the piracy, i. e,, the unlawful production of
any duly copyrighted play or opera, if it be determined that such unlawful
representation was willful and for profit, shall be a misdemeanor, and shall
subject the offender, upon conviction, to the liability of imprisonment for a
period not exceeding one year.
      The reason for the enactment of this provision has already been outlined.
      The unauthorized publication of a copyrighted book may ordinarily be ade-
quately punished through civil proceedings and under the provisions of exist-
ing law. The offender in such case is a person of fixed domicile, and has a
press and the implements of his business, so that the ordinary processes of
the court may readily be served upon him, and ha may be compelled to
respond in damages for his wrongdoing.
      These conditions do not exist, as a rule, in the case of the professional play
pirate.
      It is difficult to serve him with injunction and court orders because of his
migratory habits, and as he is frequently without attachable means it is
impossible to satisfy a money judgment against him.
      Testimony has been adduced before the committee showing that the losses
accruing to authors and owners of copyrighted productions by these piracies
amount to large sums each year. So little protection is in fact afforded
under existing conditions that many prominent American dramatic authors
no longer go to the trouble and expense of taking oat copyrights for their
works.
      Conceding that for light causes nothing should be added to the jurisdiction
or powers of the Federal courts, it would seem that the circumstances in con-
nection with the wholesale piracy of these productions of native authors
demand that something more nearly akin to drastic measures should be
invoked to remedy the evil.
      Believing that productions of the character mentioned constitute property
in the fullest and best sense of the term, your committee sees no good rea-
son why this species of literary production should not be surrounded by the
same measure of protection as is accorded to other classes of property.
      Your committee therefore recommend that the bill do pass.

      Mr. DRAPER. Mr. Speaker, the report which has just been
read fully explains the purpose of this bill. It was very fully
considered by the Committee on Patents of this House, and unani-
mously reported. It has also been considered by the same com-
mittee in the Senate, and has passed that body. I do not suppose
there will be need of discussing the measure at length, and I do
not care to do so unless it is necessary. I call for a vote.
      Mr. HOPKINS. One moment, Mr. Speaker. I do not desire
to antagonize the gentleman from Massachusetts [Mr. DRAPER] ;
but there are some features in this bill which I think the House
should understand before voting on the measure. If I under-
stood correctly the reading of the bill, it authorizes the filing of
a bill in the circuit court of the United States in the city of New
York, and under that proceeding that court would be permitted
to serve notice upon a company performing, say, in San Francisco,
and that company, 3,000 miles away, might have their rights de-
termined by a judge in New York City.
      There is another remarkable feature in this bill which I ob-
served by the reading. If I understand the measure—and the
gentleman from Massachusetts will correct me if I am wrong—it
provides that one part of the case may be tried in New York and
the other part in San Francisco, or anywhere else where there
may be a court of the United States; so that the same case may
be pending in several courts at the same time. That would be a
clear invasion of the principle that has heretofore prevailed in all
cases, in both the Federal and the State courts.
      There is another point in this bill which is a little remarkable.
It fixes the amount of penalty to be inflicted at not less than $100
in any case, regardless of the question whether the party has been
damaged to that extent or not.
      Mr. LACEY. That corresponds with the present law as to
dramatic performances—that is to say, the liquidated damages are
$50 and $100 under the present law as to dramatic performances.
      Mr. HOPKINS. If that is true, it does not apply to any other
species of property.
      Mr. LACEY. No.
      Mr. HOPKINS. The general principle, as every lawyer under-
stands, is that when a person claims damages for an infringement
of his property rights he must show in the court where his" case is
commenced the amount of damages that he has sustained. But
this bill provides that this sum shall be paid as damages regard-
less of the question whether the party has been injured to that
extent or not.
      As I have said, I do. not care to antagonize my friend from
Massachusetts, but I think the House should understand the char-
acter of this bill before voting upon it. It proposes in behalf of

Chapter 1 Page 3


86                  CONGRESSIONAL RECORD—HOUSE.                  December 10,

this particular class of persons a stretch of Federal authority
which is not sanctioned in reference to any other kind of property
in this country: and it seems to me it is a stretch of power that
it is dangerous to permit with respect even to the productions of
playwriters.
      Mr. DRAPER rose.
      Mr. LACEY. Will the gentleman from Massachusetts allow
me a question? I notice the bill provides that the willful giving
a dramatic or musical performance without authority shall be
a misdemeanor, and may be prosecuted criminally in the Federal
courts. I wish to ask my friend the chairman of the Committee
on Patents what is the necessity for this extreme measure? Has
not the present system of investigation and injunction by the
United States courts been found ample for the protection of rights
of this character so far as dramatic performances are concerned?
      Mr. DRAPER. It has not been found of any value at all.
      Mr. LACEY (continuing). If musical performances are put in
the same category as dramatic works, would it not?
      Mr. DRAPER. I can reply to only one gentleman at a time,
but taking up the last question, that proposed by the gentleman
from Iowa [Mr. Lacey] . the reason why the bill was introduced is
because the present legislation does not protect dramatic authors;
and many of our dramatic authors have ceased to copyright their
works because they are not sufficiently protected under the pres-
ent law.
      In reply to the gentleman from Illinois [Mr. Hopkins] , the
language he objects to on the first page of the bill, in regard to
the sum of damages, is already the law. It is a part of the pres
ent law and there is no new legislation about it.
      Further, I think my friend misunderstands the bill, at which
I am somewhat surprised, as I had the pleasure of submitting it
to him in advance of its presentation to the House. As I under-
stand it, it provides, in case an injunction is taken out against
a company illegally performing a play, for instance, in New York,
and the next night goes to Jersey City, that instead of it being
necessary to take out a new process through an injunction pro-
ceeding in Jersey City the injunction taken in New York will
hold against it, unless the company shows cause why it should
not hold. As the case stands now, the law is utterly inadequate
to protect against the production of plays in an unauthorized
manner for this reason by strolling companies.
      I would say that this legislation was asked for by substantially
the entire dramatic profession of the United States, and we have
had many and very interesting hearings upon the subject. I have
a list of the signatures here of some of those who have asked for the
legislation, and among the many dramatists who have asked for
it I find such names as Bronson Howard, David Belasco, Charles
Barnard, Henry G. Carleton, Reginald De Koven, James A. Herne.
Charles Hoyt, Joe Howard, jr., Bill Nye, John Philip Sousa, J.
Cheever Goodwin, John J. Braham, Arthur Wallack, Louis Harri-
son, and others. Among the actors we find such names as Helena
Modjeska, Marie Jansen, Stuart Robson, William H. Crane, Annie
Ward Tiffany, James B. Mackie, Kate Claxton, Thomas Q. Sea
brook, Louis Aldrich, Maida Craigen, Maude Banks, Marian Ma-
nola-Mason, Robert Hilliard,, Henry E. Dixey, A. M. Palmer, Daniel
Frohman, Charles Frohman, Henry E. Abbey, Wilson Barrett, John
Drew, Georgia Cayvan, James O'Neill, Frank Mayo, B. F. Keith,
Canary & Lederer, Charles Hoyt and Frank McKee, T. Henry
French, H. C. Miner, W. H. Thompson, William Faversham,
Ferdinand Gottschalk, Bessie Tyree, Mark Murphy, W. D. Jones,
and many others.
      The statement of all of them is that under the present law, that
pretends to give protection to copyrighted plays, no protection
can be offered for the reason already suggested, and no indemnifi-
cation can be obtained against any illegal performances in New
York or elsewhere, because if an injunction is taken out in New
York the players can go over to Jersey City and perform there
two or three days before an injunction can be gotten out, and then
be off to Philadelphia, will give as many performances there as
possible, and before an injunction can be taken out in that city
perhaps they will be off to Baltimore or somewhere else.
      Now, Mr. Speaker, what is intended by this legislation is that
the first injunction taken out shall serve in the other districts of
the United States unless cause is shown why it should not.
      Mr. CONNOLLY. I would like to ask the gentleman a ques-
tion. Does this bill require that the injunction shall be upon
hearings or upon mere application? Is it the intention of the law
that the injunction may issue without a hearing, and coverall the
territory of the United States?
      Mr. DRAPER. No; there must be a hearing first.
      Mr. HOPKINS. If the gentleman will permit me, he referred
to the fact of having submitted this bill to me. He does not wish,
I presume, to convey the impression to the House that I have
approved of the bill and recommend its provisions?
      Mr. DRAPER. I purposely did not say that. I said I submit-
ted it to the gentleman, and was surprised to see that he misap-
prehended the provisions. That was all. I did not mean to imply
anything further.

[2nd column:]

      Mr. HULICK. Will the gentleman allow me to ask him a
question?
      Mr. DRAPER. Certainly.
      Mr. HULICK. In this bill, in line 14, I find these words:
      If the unlawful performance and representation be willful and for profit.
      I would like to ask the gentleman if this provision of the bill
will affect charitable organizations or amateur associations in
performing or representing any dramatic or musical composition
for a charitable purpose, in order to obtain money for any benevo-
lent institution or otherwise?
      Mr. DRAPER. Not as I understand it. The matter was dis-
cussed in both committees.
      Mr. HULICK. But this provides that any person, without any
exception whatever, guilty of this offense shall, upon conviction,
be imprisoned for a period of not exceeding one year, and so on.
It provides that it shall be unlawful for any person publicly to :
perform any dramatic or musical composition for which a copy-
right has been granted under the penalties that I have suggested.
Now, if a person should inadvertently, without understanding or
examining the statute, engage in such a performance he would be
held guilty of violating the act and be subject to the punishment
fixed by the statute. There seems to be no exception in the bill as
you have drawn it.
      Mr. DRAPER. I think there will be no practical danger in that.
      Mr. HULICK. Is there any exception of that class of perform-
ances anywhere in the statute? There certainly is not in this bill.
      Mr. DRAPER. Unless there is something more to be said, I ask
for a vote.
      Mr. CONNOLLY. Let me ask the gentleman my question
again.
      Mr. DRAPER. I will yield for another question.
      Mr. CONNOLLY. I asked whether or not the injunction that
you provide for or specify here is to be an injunction granted
upon hearing. I find on referring to the bill that a mere tem-

porary injunction may be sufficient, without a hearing.
      Mr. HOOKER. It provides that a motion may be made to set
it aside.
      Mr. CONNOLLY. I see the bill provides that any injunction
that may be granted by any circuit court of the United States,
or by a judge thereof, restraining, etc., may be served on the parties
against whom it is granted anywhere in the United States. Now,
that may be a temporary injunction, granted without hearing,
upon merely filing a bill setting out the facts claimed, and asking
for a preliminary injunction. That may be done without hear-
ing, and that injunction then, without any evidence ever having
been heard in support of it, will be enforced everywhere in the
United States to stop the performance.
      Mr. HOOKER. The injunction would not be made permanent
until after a hearing was had.
      Mr. CONNOLLY. It becomes permanent everywhere in the
United States under the language of this bill, upon merely asking
for an injunction, and having it issued. It becomes permanent
then until the other party comes into court and seeks to have it
set aside.
      Mr. DRAPER. Which he has a right to do.
      Mr. CONNOLLY. Of course he has a right to do it, but in the
meantime it will be enforced everywhere in the United States.
      Mr. DRAPER. It is provided in the bill that he may come in
and seek to have it set aside.
      Mr. CONNOLLY. In the meantime it restrains him every-
where, and the practical effect of it is to give a permanent injunc-
tion without any evidence to show that the facts set out in the
bill are true. Anyone can go into court, make a charge, and get
an injunction that is enforced everywhere.
      Mr. SULLOWAY. Why should it not restrain him every-
where?
      Mr. CONNOLLY. Because the fact has not been established.
      Mr. SULLOWAY. If it is to be enforced anywhere, why not
let it be enforced everywhere within the jurisdiction of the United
States?
      Mr. CONNOLLY. Of course, if you make it an injunction
granted on a hearing, that is a different thing, but this is an in
junction granted upon a mere ex parte showing.
      Mr. SULLOWAY. But the court would take care to order an
immediate hearing.
      Mr. CONNOLLY. The court could not order an immediate
hearing.
      Mr. SULLOWAY. And a bond would be required, if there
was danger of damage.
      Mr. CONNOLLY. The court might require a bond and it
might not.
      Mr. SULLOWAY. That is assuming that the court would not
do the right thing.
      Mr. CONNOLLY. We ought to require the court to do the
right thing to protect the parties.
      Mr. HOOKER. The court will do that.
      Mr. SULLOWAY. I think the courts may be relied upon to
protect everybody.

Chapter 1 Page 4


1896.                  CONGRESSIONAL RECORD—HOUSE.                  87

      Mr. STEWART of New Jersey. Does not this preclude any
person from singing a topical ballad if it is copyrighted? Would
not that be included in the terms "musical composition," in line 12?
      Mr. DRAPER. If it is copyrighted, of course.
      Mr. STEWART of New Jersey. Then it would include a copy-
righted ballad.
      Mr. DRAPER. It would include the performance of anything
that was the property of another, without authority. As this mat-
ter has awakened more discussion than I expected, I will yield ten
minutes to the gentleman who introduced the bill, Mr. CUMMINGS
of New York.
      Mr. HULICK. Will the gentleman allow me just a moment, to
offer an amendment? And then the gentleman can proceed.
      Mr. CUMMINGS. I will.
      Mr HULICK. Mr. Speaker. I offer the following amendment.
Strikeout all after the word " just," in line 14, and before the word
"only," in the seventeenth line; and also strike out in line 20 the
      The SPEAKER pro tempore (Mr. Dalzell). The gentleman
from Ohio offers an amendment, which the Clerk will report.
The Clerk read as follows:

Strike out all after the word "just," in the fourteenth line, and to the word.
"only" in the seventeenth line thereof; and in line 20 strike out the word
"such;" so as to read, "representation of any dramatic or musical compo-
sition."

      Mr. CUMMINGS. Mr. Speaker, the amendment offered by the
gentleman would entirely emasculate the bill and leave the law
practically where it is to-day—worthless. There are 5,000 theaters
and opera houses in the United States. They cost from $10,000 to
$800,000 each. These theaters employ 50,000 persons outside of
actors and actresses. There are upward of 400 manuscript plays,
written or owned by citizens of the United States, played nightly
in our cities. They give employment to from 5,000 to 6,000 actors
and actresses. The total of plays involved is over 1,500. The
cost of producing these plays ranges from $2,000 to $25,000 each.
This enormous aggregate invested is entirely dependent upon the
right to perform. these plays.
      The laws of the United States recognize the right to perform a
play as the exclusive property of the author or owner of the play.
The copyright law imposes severe fines for the punishment of all
persons who perform a play without the consent of the owner.
The Federal courts provide facilities for preventing, by injunc-
tion the unauthorized performance of plays. It would, there-
fore, seem that the right to perform a play was thus perfectly
protected.
      But the law does not protect this class of property. There is
under the copyright law no real protection against the unlawful
performance of a play. An injunction obtained against the"
unwarranted performance of a play is of comparatively limited
value. A man who steals a valuable play can sell a copy for a
few dollars, or perform it every night for months in practical
immunity from arrest, fine, or imprisonment. There are innu-
merable companies in all parts of the country engaged at all times
in the unlawful performance of plays to which they have no legal
or moral right. The theft of successful new plays and the sale of
stolen copies of the manuscripts have become a regularly organized
business. There is one firm in Chicago alone that advertises the
manuscripts of hundreds of plays to mot one of which it has anv
right whatever.
      These stolen plays are performed by irresponsible parties with-
out means, local habitation, or reputation. An injunction obtained
in one Federal district is inoperative in any other, and by crossing
an imaginary line the person conducting the unlawful perform-
ance may defy the United States law and continue to perform the
play until its commercial value is completely destroyed. Entire
sections of the country, East, West. North, and South, are now so
overrun with these unlawful producers of plays that reputable
companies are completely debarred from entering them. The local
managers and owners of theaters are nowhere in sympathy with
these unlawful producers of plays, but it has now become almost
impossible for them to detect a fraudulent production when con-
tracting for performances in their houses.
      No man can defend this great wrong. Look at it more closely.
The man who is robbed of the work of his intellect is told to go to
the courts. He goes to the circuit court in the district where the
play is being produced and gets an injunction. The pirate skips
into another circuit and displays his stolen goods. If followed
with a second injunction he goes into a third circuit, and the
chase continues. The owner of the copyright might spend all his
profits if he has any, and if not might spend his entire fortune,
before he could secure a conviction of the thief.
      I know of one case myself. One of McKee Rankin's plays was
being pirated in Denver. It was being performed in the opera
house there. I say "performed"—I should say "butchered."
The owner went before the judge. He secured an injunction
against the performance, and the man who was running the show
promptly turned the company over to another pirate, and that
gentleman produced the play in that very opera house in that

[2nd column:]

very city on the next day. If he had been followed up he would
have turned the company over to a third pirate, and the perform-
ance would have been continued indefinitely.
      Mr. Speaker, this is not the first time this bill has been before
the House of Representatives. It was here in the last Congress.
As a remedy it was proposed to give any Federal court jurisdic-
tion over the entire country. I am not a lawyer and I shall not
attempt to use legal phraseology. I shall try to make it so plain
that even a common bootblack can understand it, [Laughter.]
Say an author has copyrighted a play and sold it. Twenty-five
thousand dollars has been spent in the city of New York to pro-
duce it. Somebody out in Chicago, or New Orleans, or San Fran-
cisco mangles it and sends out piratical troupes to perform that
mangled play without authority from the author. The author or
purchaser can go to a Federal judge—say the circuit judge of the
New York district—and get an injunction which would hold in
every circuit in the United States. Such was the bill proposed in
the last Congress. The House voted it down, because they did
not think it proper to give a Federal judge in New York complete
jurisdiction over a matter in Texas, I do not say that the House
was not right, although I must say that if the force bill had be-
come a law it would have given the Federal courts far more juris-
diction than that proposed in the last Congress.
      Now, Mr. Speaker, this bill attempts to correct what the House
thought was wrong in the bill then. As I understand it now, it
gives a Federal judge in New York the power to issue a manda-
mus or an injunction or power to punish for contempt, and that
power can be exercised in any other judicial district in the United
States if it is indorsed by the judge ruling in that district. If
he refuses his assent, that ends the whole matter, and the man
who owns the copyright remains unprotected. But if the judge
believes that the pirate was at work in his district, by a simple
indorsement he could pen the pirate and stop the robbery.
      Now, Mr. Speaker—
      Mr. KAY. Do I understand the gentleman to be now stating
what the law is, or what this bill proposes?
      Mr. CUMMINGS. What this bill proposes.
      Mr. RAY. I do not think there is any such provision in the bill
as the gentleman suggests. The way I read it it provides that an
injunction may issue by a judge, say in the circuit court of the
State of New York, and that that injunction may be served any-
where in the United States, that it shall be operative wherever
served, and upon that person wherever he may go, and that the
court or the judge in any circuit anywhere in the United States
may enforce it. The bill does not require any indorsement by the
judge.
      Mr. CUMMINGS. Well, that is practically the same thing—
probably a little better.
      Mr. RAY. But it does not require any indorsement.
      Mr. CUMMINGS. But it leaves it in the power of the judge to
enforce the injuction or not to enforce it, and that is the point I
am getting at. Here, for instance, is a man who spends $10,000
for a play, which is produced in the city of New York. It is a
failure. He loses his $10,000. He picks his flint and tries again.
He spends $15,000 more for a second play, and that also proves a
failure, and his money vanishes. Finally, after repeated efforts,
he procures a play that is a great success. It is bringing in money
enough to more than repay him for all the losses he has incurred.
Now, the moment that play is successful, ten or a dozen or per-
haps twenty pirates seize it. They send their stenographers into
the theater to copy the words. They can buy them, if they wish,
from a company organized in Chicago, which sends its stenogra-
phers and its musicians to steal words or music. Next, these ten
or twenty piratical companies spread themselves all over the
Union. They do not give the play as it was written by the author.
It may require thirty or forty performers to present it properly;
but they mangle and mutilate it so that it can be performed by
half a dozen people. They damage irretrievably the property
owned by the author, or by the man who put up the money to pro-
duce it originally. The author received his copyright from the
United States, and the theft of his play is a robbery of his brains.
Yet he remains unprotected. The Government virtually receives
his money under false pretenses. If the thief was at the South
and stole a hog, he would probably be shot or hanged, but he can
steal the product of another man's brain and be virtually pro-
tected by defective laws.
      Mr. STEWART of New Jersey. The penalties of the bill apply
to musical compositions publicly played or performed, either with
or without hire. Take a musical ballad, for instance, that is sung
upon the street by boys and girls, or played upon an organ with-
out compensation, the provisions of this bill would apply to that,
would they not; and if so, ought there not to be an amendment to
except such cases?
      Mr. CUMMINGS. I will say to my friend that the author of a
popular ballad is always too glad to have it sung upon the streets
or played by a hurdy-gurdy, because that brings" it into public
notice.
      Mr. STEWART of New Jersey. That is true as a matter of

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88                  CONGRESSIONAL RECORDS-HOUSE;                  December 10,

sentiment, but does not this bill apply to cases where ballads are
sung publicly in that way?
      Mr. CUMMINGS. I think not. I have not examined it care-
fully. It is not the bill that I introduced. It is the one that the
Senate has passed. There may be a slight difference.
      Mr. STEWART of New Jersey. With the gentleman's permis-
sion, I will offer an amendment to meet that case.
      Mr. CUMMINGS. I have no objection to an amendment for
the specific purpose the gentleman suggests. Does he mean where
these ballads are sung on the street, or where they are sung in a
theater or an opera house, but not for hire?
      Mr. STEWART of New Jersey. Under this bill boys and girls
singing popular ballads on the street would be liable to the pen-
alties provided in the bill.
      Mr. CONNOLLY. In the eighth line the bill provides that the
penalty shall apply only where the composition is produced with-
out the consent of the proprietor. Now, if these compositions are
offered for sale, the consent of the proprietor is implied.
      Mr. CUMMINGS. I have no objection to an amendment such
as the gentleman from New Jersey suggests, although I think it
entirely unnecessary.
      Mr. STEWART of New Jersey. Then I will offer it.
      The SPEAKER pro tempore. The Chair would say to the gen-
tleman from New Jersey that there is one amendment already
pending.
      Mr. STEWART of New Jersey. Then I will withhold mine
until that one is disposed of.
      Mr. CUMMINGS. I will say, Mr. Speaker, that I do not think
such an amendment is necessary, because I do not think any
trouble will ever arise in the case3 the gentleman from New Jersey
mentions. I know that when it is desired to perform " The Bank-
er's Daughter," or any other play at a church festival, the per-
mission of the author is always given; in fact, the author is glad
to give such permission, because it makes his composition more
popular, and thereby enhances its value. Finally, Mr. Speaker, I
say that it is a disgrace to the Congress of the United States to
have the dramatic authors and the musical composers of this
country coming here year after year praying for relief and asking
simple justice for the protection of their property—such protection
as you give to cabinetmakers, machinists, and breeders of razor-
backed hogs. [Applause.]
      [Here the hammer fell.]
      Mr. HULICK. Mr. Speaker, in offering the amendment which
has been submitted to the House, I think that in the bill as it
now stands the penalties are entirely too severe. The bill makes
no exceptions in favor of any persons or any company that may
present any copyrighted musical or dramatic composition. Upon
further consideration, however, and with the consent of the chair-
man of the committee, I will withdraw the amendment I have
offered and offer instead that which I send to the desk.
      The Clerk read as follows:

            Insert after the word " year," in line 17, the following:

            "Provided, That if said performance and representation shall "be for char-
      itable or benevolent purposes, it shall be a good defense to any prosecution
      under this act.11

      Mr. HULICK. Only a word in support of this amendment. I
had the honor to be a member of the Committee on Patents in
the Fifty-third Congress when a bill of this character in regard to
dramatic performances was considered by that committee. I
sympathize with the friends of this measure in the efforts they
are making to protect the dramatic copyrights, and I think the
law should operate very severely upon persons who may willfully
infringe upon such rights.
      Mr. CUMMINGS. Will the gentleman allow me one question?
      Mr. HULICK. Certainly.
      Mr. CUMMINGS. If it is wrong to rob a man at all, is it not
wrong to rob him through the operations of a church? For that
is adding hypocrisy to theft. [Laughter.]
      Mr. HULICK. I can not agree with my friend at all in his con-
clusion. I think that the authors of these dramatic compositions—
the parties who have an interest in these representations and who
would undoubtedly be greatly benefited—should do for the church
as much at least as my amendment contemplates, and the parties
presenting the play or musical concerts should not be subject to
fine and imprisonment.
      Mr. CUMMINGS. They have never refused it, my friend.
      Mr. HULICK. Very well; then it should not be assumed that
they will in any case withhold their consent to this amendment.
      Mr. CUMMINGS. All that need be done by any church or
charitable organization desiring to perform a copyrighted piece
is to ask permission of its author; such permission is always gladly
granted. I defy the gentleman to show one case where it has ever
been refused.
      Mr. HULICK. I have no doubt that the authors of composi-
tions of this class are as generous as my friend from New York
claims that they are; and I have no doubt they would cheerfully
assent to this amendment, so that where any of these productions

[2nd column:]

are presented for benevolent or charitable purposes no penalty
shall attach.
      Mr. RAY. If we are to recognize the fact that these copy-
rights belong to the authors of the compositions, then, having
recognized this species of property, should it be any defense for
any person who may steal such property to say that he stole it for
charitable purposes?
      Mr. HULICK. Not at all.
      Mr. RAY. If I steal your potatoes, should it be any defense
that I stole them to give them to the poor, and did give them to
the poor, or gave them to a church fair or to some other charitable
object?
      Mr. HULICK. Certainly not. But if a church or a charitable
institution should produce a musical representation protected by
copyright, it should be a defense, if they are indicted or prose-
cuted for a violation of the law, that the act was not done for per-
sonal gain, but for a charitable purpose.
      Mr. RAY. There would not be any profit to me if I stole your
potatoes and gave them to the poor.
      Mr. HULICK. Very true.
      Mr. RAY. I would not do it for profit.
      Mr. HULICK. I think the gentleman does not comprehend the
force of this amendment. It does not propose to authorize any
charitable or religious organization to infringe upon any legal
right, but it provides—
      Mr. RAY. It simply proposes to recognize in this bill the prin-
ciple that, if any church or charitable organization, for the pur-
poses of pleasure or entertainment, should find it convenient to
steal the property of a dramatic or musical author, they may do
so at will, and the act shall not be regarded as unlawful.
      Mr. HULICK. I only gave way for the gentleman to ask a
question.
      Mr. STEWART of New Jersey.. I wish to call the attention of
the gentleman from Ohio [Mr. Hulick] to a point which may ob-
viate some of this discussion. At line 14 of this bill I find the
words "if the unlawful performance and representation be will-
ful and for profit." Now, if church organizations did not do the
thing for profit, their defense would be complete under the bill as
it stands.
      Mr. HULICK. If they gave a performance for profit, of course
the act would be willful. But the performance might not be for
profit. My amendment does not propose to license religious or
charitable organizations to make these representations, but it sim-
ply contemplates that if there should be an attempt to prosecute
them they may exempt themselves from punishment by making
the defense that the performance was for a charitable or benevo-
lent purpose. But this provision would not interfere with the
power of the courts to enjoin any such association from making
a musical or other representation. The bill fully provides against
infringements of copyrights by injunctions and power to punish
as for contempt for disregarding the orders of the court.
      Mr. QUIGG. Will the gentleman allow me a moment? There
are a number of dramatic companies organized, as the gentleman
is doubtless aware, for the purpose of cooperating with churches
and charitable institutions, and which go to church and charita-
ble organizations offering to give a performance for a division of
the profits. Now—
      Mr. HULICK. That would not be a good defense. It would .
be in that case a performance for profit, and would be subject to
the penalties provided in the act.
      Mr. QUIGG.. But if you put in that amendment, would it not
allow this proceeding?
      Mr. HULICK. No; I think not. I do not intend it in that way.
I think the amendment is clearly not susceptible of that construc-
tion.
      I sympathize with the purposes of the bill, and agree that these
parties ought to be protected. But at the same time I think it
would be a great hardship if the strict letter of this law were ap-
plied in many cases which would readily present themselves to any
gentleman who gives it a moment's thought. Many of these per-
formances, as gentlemen are aware, in remote country districts
are gotten up on the spur of the moment by people who do not
understand these rights, who have not examined the statutes in
reference to the matter; and these musical and dramatic perform-
ances are inaugurated perhaps for a charitable purpose and for char-
ity alone. Now, in such cases, if these persons so engaging in such
performances shall be arrested for a violation of the law, the
amendment provides that it will be a proper defense to say that it
was not the intention to violate the statute or to rob anybody of
his right, using the language of my friend from New York [Mr.
CUMMINGS] , but merely a defense against prosecution under the
bill because it was not a performance undertaken for profit. But
it would not be a defense against the injunction of the court or
against the party undertaking to give such performance if the
amendment is adopted. I do not understand that would be its
effect. I simply want to protect, in such cases, entirely innocent
people engaged for a charitable purpose, or perhaps members of a

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1896.                  CONGRESSIONAL RECORD—HOUSE.                  89

benevolent organization, if by chance they should present a play
or musical programme of a character which would come within the
provisions of this bill, so that the defense might be set up in a
criminal prosecution that it was not intended for profit to them-
selves individually, but only for benevolent or charitable objects.
      The gentleman from New York [Mr. Quigg] tells us that the
bill does not contemplate prosecutions in cases contemplated by
this amendment, I can not agree with him. There is no excep-
tion in the bill. He says no prosecutions would ever be made
under the bill as it is. That may be true; nevertheless I think we
should not make it possible for such prosecutions to be had, and
I therefore offered this amendment.
      Mr DRAPER. Mr. Speaker, it seems to me that the amend-
ment is unnecessary, and I hope it will not be adopted. I ask a
vote.
      The question was taken on the amendment of Mr. HULICK, and
it was rejected.
      Mr. STEWART of New Jersey. I withdraw my offer of an
amendment.
      Mr. LACEY. I offer the amendment I send to the desk.
      The Clerk read as follows:

      Strike out all after the word "just," in line 14, on page 1 of the bill, down
to the word "any," in line 17 of the bill, and insert:
      " The printing, publication, and sale of such dramatic or musical composi-
tion by the proprietor thereof shall be deemed a sufficient consent to the
public performance or representation thereof."

      Mr. LACEY. Now, Mr. Speaker, a brief explanation of the
amendment.
      I think this bill has been drawn in a much more drastic man
ner than the House really understands it. Take one of our ordi-
nary popular songs; it is copyrighted and sold; it may under this
bill be sung in the private parlor, or perhaps sung on the streets,
but if any troupe of performers should wish to introduce the song
on the stage in connection with its performance and publicly ren-
der such composition, such troupe becomes at once subject to the
penalties of this statute. It seems to me that the act should not
Be drawn in that severe form.
      There is no reason, as far as I am able to understand, why a per
son who writes a popular song, sets it to music, prints and copy-
rights it, and publicly sells that music and song should still retain
the right to say where it shall be used, and have the privilege of
punishing anybody for using it in public without his consent. For
that reason I think the modification I have offered should be incor
porated in the bill.
      Mr. QUIGG. If the gentleman will allow me, is it not a part
of his property? Suppose I am the author of a song, and make so
much money, on a percentage basis, on each copy of the song sold,
is not the song my property for still another profitable purpose?
Suppose, for instance, that I should sell to my colleague from New
York [Mr. CUMMINGS]—who for the purpose of this illustration may
be described as a popular concert-hall singer—the exclusive right
to sing that song publicly and for profit. Now, if anybody else,
another clever performer, comes along and duplicates the per-
formance which his genius has created, am I not robbed and is he
not robbed? Does not your amendment take from us an obvious
property right?
      Mr. LACEY. In other words, it is as if a man who patents and
sells a sewing machine should ask us to make it a penitentiary
offense for the young woman, the sewing girl, to use the machine.
      Mr. QUIGG. Oh, no; that is not at all a parallel case.
      Mr. LACEY. The point I make is that when the song or dra
matic performance has been once copyrighted, published, and
sold it becomes a public article just as much as any other article
that is sold. The right passes from the originator to the purchaser
of the article, and when a man purchases such an article he should
have the right to use it in public or in private as he pleases. In
other words, a man should not be permitted to sell his property
and keep it at the same time.
      Mr. QUIGG. I am afraid my friend from Iowa [Mr. LACEY]
does not understand how these songs are used.
      Mr. LACEY. I think I understand. The songs are used in
various ways. A song may be incorporated into a varietv show
and become one of the Principal parts of the show.
      Mr. QUIGG. Precisely.
      Mr. LACEY. And by so doing they will copyright the entire
performance, and thus prevent the use of it after selling it to the
public.
      Mr. QUIGG. Oh, no; you can not do that.
      Mr. LACEY. Again, too much stress is put upon the brains of
these inventions. Nine-tenths of all these copyrighted plays are
pirated in the first place. That is, the first pirate is the man who
copyrights the play. He gathers his material from a thousand
older sources. He makes it original simply by incorporating it
into a play, and he can copyright it without any proof of orig-
inality. He does not have to go into the Patent Office and prove
originality, as a man does who wishes to procure a patent upon a
piece of machinery, but a copyright is granted as a matter of

[2nd column:]

right to begin with, on paying the necessary fee and filing the
title-page.
      Mr. CUMMINGS. Then you mean to tell me that our Lord
and Saviour Jesus Christ pirated the Golden Rule because some
Brahmin promulgated it hundreds of years before He did?
      Mr. LACEY. Not at all. He took out no patent upon it. Be-
side that, if He had taken out a patent on the Golden Rule, under
this law it would have done Him no good.
      Mr. CONNOLLY. No one uses it anyway. [Laughter.]
      Mr. LACEY. My friend now proposes that if the Golden Rule
should be incorporated into a play by McKee Rankin it would be
a copyrighted article, and that that particular combination of
words, with the Golden Rule inserted in a particular connection,
if copyrighted, could not be afterwards used in that particular
form. It seems to me the vice of this bill is that it makes an of-
fense, for which a man may be sentenced to jail for a year, simply
for performing in public a thing which may have already been
practically pirated by the copyrighting party himself. It is an
extreme law, a law that is unnecessary. I grant you, Mr. Speaker,
that there is good reason for enlarging the law so as to take in
musical compositions. I concede that it would be well to enlarge
the law as to the practice, so that the injunctions which are
granted in the city of New York may be enforced through appro-
priate channels in Denver and in other places; but to make a crime
out of the violation of a copyright is an extreme application of the
law which it seems to me is utterly unjustifiable and unnecessary.
We do not authorize it in the infringement of patents.
      Mr. QUIGG. Would it not be the effect of your amendment
that if I wrote a song and copyrighted and published it—
      Mr. LACEY. And sold it.
      Mr. QUIGG. And sold it, that anybody could publicly perform
it for profit?
      Mr. LACEY. Certainly. If you do not want to make it public
in that way, you must not sell it. When you once sell it, the
right to use it passes with the sale, just the same as with any
other patented article, and it should go with the sale.
      Mr. QUIGG. The right to use it to the extent of .making money
out of it?
      Mr. LACEY. The right to use it to any extent whatever; that
when it is copyrighted, and you pay an additional price for the
copyrighted article, the right to use it should go with it.
      Mr. COX. Will the gentleman yield to me, so I can get some
information about this matter?
      Mr. LACEY. I yield to the gentleman from Tennessee.
      Mr. COX. What kind of power do you invoke for the enforce-
ment of this law when it is violated?
      Mr. LACEY. The present law requires that the party holding
the copyright shall protect himself in his civil rights by a civil
proceeding in the courts, just the same as if he had a patented
article. This bill proposes to go further. It proposes that you
may go into the courts and file informations or obtain indictments
and punish as a crime the use of a copyrighted article. It is a
very extreme measure, it seems to me; one which has evidently
been drawn up by some lawyer, specially employed by parties
holding such copyrights, in an endeavor to make it so strong that
the whole power of the Federal Government in its criminal capac-
ity can be invoked and the cost of disputes of this character sad-
dled upon the Government by making a new statutory crime.
      Mr. STEWART of New Jersey. Does not the putting of these
ballads on sale for profit work a dedication or abandonment to the
public as a matter of law?
      Mr. LACEY. It will if my amendment is adopted.
      Mr. STEWART of New Jersey. Even without the amendment,
would it not be an abandonment of the property as a pure ques-
tion of law?
      Mr. LACEY. Unquestionably; and yet the law is drawn in
such a way as that it would probably have no effect.
      Mr. COX. He wants to sell it more than once.
      Mr. QUIGG. Mr. Speaker, the gentleman from Iowa in offer-
ing his amendment says that this bill is drawn up in a severe form.
That unquestionably is true. But he should consider that the
sort of property which we are seeking to protect in this bill is very
easily stolen, and that laws which avail, to render other forms of
property safe from spoliation are of no service with this kind: and
so the law, if it is going to accomplish anything, must be severer
than one which applies in the case of an ordinary piece of property
that has to be physically picked up and carried off and appropriated
in some easily observed way in order to constitute a theft. This
is literary property, and we are seeking in this bill to protect the
author of it in all the rights that ought to accrue to him on
account of his production.
      Now, one of these rights the gentleman from Iowa seeks to de-
stroy by this amendment, and that is the right to control any
production of it, any use of it, out of which the user proposes to
make money. When I copyright a song, if it is meritorious, the
first and most profitable use to which I can put it is to hand it
over to a clever actor and singer, so that he can act it and sing it

Chapter 1 Page 7


90                  CONGRESSIONAL RECORD—HOUSE.                  December 10,

into popularity. I would not make a dollar on the publication of
what might be a very clever song unless it was cleverly introduced
on the stage by somebody who knew how to fasten public atten-
tion upon it. Does the gentleman from Iowa mean to say that I
shall not have that right, or that I shall not be protected in that
right? His amendment destroys that right absolutely, and yet he
must see that there would be no profit to any publisher of any
song in the sale of it unless first he could demonstrate to the pub-
lic that it was a clever thing. The people would not know of its
existence otherwise. Every one of the songs for which there has
been a popular sale has been introduced to the public by some
clever performer, who has taught to the public the fact of its at-
tractive tune or amusing words, and then everybody wants it.
You destroy his most profitable right in his production. More-
over, when you come straight to the rights of the thing, is it not
a very necessary right that the author of literary or musical com-
position should enjoy a part of every profit which anybody ob-
tains from the use of his brains? This bill does not forbid the
singing of his song or the speaking of his piece for amusement,
but only that when sung or spoken for profit he shall have some
of the profit. It seems that that is a fair, necessary, and equitable
thing, if we are going to make an effectual copyright, and other-
wise it is impossible that an author can ever make anything out
of his work.
      Mr. RAY. Will the gentleman allow me to ask him a question
before taking; his seat?
      Mr. QUIGG. Certainly.
      Mr. RAY. Do you think this would be a violation of the law:
Suppose his song was copyrighted and the owner of it should put
that song in all the bookstores in the city of New York or of the
United States for public sale, and it should go on sale in that way,
and some company, in connection with a church, perhaps, or a
county fair, or some other institution, should get up an entertain-
ment and have that song sung in or as a part of that enter-
tainment, would that, in your judgment, be a violation of this
law? Is this bill intended to stop a thing of that kind?
      Mr. QUIGG. I do not suppose the bill is intended to stop a
thing of that kind, but I think it will operate to do so.
      Mr. RAY. If that would make such a use of the song an of-
fense, it is too drastic after it has been put generally upon the
market.
      Mr. COOPER of Wisconsin. Will the gentleman allow me to
answer that question?
      Mr. QUIGG. Yes.
      Mr. COOPER of Wisconsin. Permit me to say that it seems to
me that in line 8 of the bill we have a complete answer to the
question of the gentleman from New York and the very matter
which seems to have troubled the gentleman from Iowa [Mr.
LACEY]. When a man offers a product of his for public sale he
gives then his consent that it may be reproduced by anybody.
      Mr. QUIGG. Perhaps that is so, but I rather think not.
      Mr. COOPER of Wisconsin. And without the consent proba-
bly, then, it becomes an offense; but when he offers it for notorious
public sale he means that they shall pay for the use of it provided
they do it. I think the point taken by the gentleman from New
York is this, but if a man does not offer it in the book stores or
the music stores in the manner suggested by the gentleman from
New York [Mr. RAY] , then he does not offer it for promiscuous
interpretation, but can copyright it and yet sell it to a single singer
to be sung. He does not give the right to everybody to use it.
      Mr. QUIGG. My friend's answer is not mine. I should say
that this bill forbade the reproduction for profit of that song by
anybody anywhere and under any circumstances without the own-
er's consent. That is what the law ought to do. When it is sug-
gested that this is too drastic, I say no, and that there is no profit
in the song unless it has the benefit of such a law. So far as its
reproduction by a Sunday school at a charitable entertainment is
concerned, gentlemen are raising a question that they know the
owner of the song will never raise, but in order to protect him
everywhere he must have a law under which he can raise that
question if he likes.
      Mr. LACEY. But the law would be enforced by the grand jury
or by the district attorney. The composer or author would have
nothing to do with it. You are invoking here the criminal stat-
utes of the United States and they can be brought to bear by any-
body.
      Mr. QUIGG. True; but there is always a complaining witness,
without whom the law rarely acts. Nobody wants to proceed
against Sunday schools, and there is no danger of any such situa-
tion arising.
      Mr. HULICK. The gentleman says that in his opinion nobody
would prosecute a Sunday school, but does the bill permit any-
body to do that?
      Mr. QUIGG. I hope that the bill permits it. My friend from
Wisconsin [Mr. COOPER] says it does not, and perhaps he is right,
but I think the law ought to avail to protect the owner at all
points. I say that unless you draw the law so strictly that you

[2nd column:]

can stop this piracy by everybody everywhere you have not
drawn it strictly enough to protect anybody anywhere.
      Mr. HULICK. Is not the remedy by injunction sufficient to
stop all piracy of such productions?
      Mr. QUIGG.. Of course not. What good has it ever done?
      Mr. HULICK. There is the power of the court to enjoin, and
to enforce its orders, by fine and imprisonment, against any per-
son who violates the law or is guilty of contempt of court.
      Mr. QUIGG. Precisely; but the gentleman knows that the
piracy never is stopped in that way.
      Mr. COOPER of Wisconsin. Mr. Speaker, I desire to say a
word or two in reply to the gentleman from Iowa [Mr. Lacey] ,
and also in reply to the gentleman from Ohio [Mr. Hulick] who
has just taken his seat. With all due respect to them, it seems
to me that they misunderstand the scope, intent, and purpose of
this bill. There could be no possible offense under it, were it
enacted into law, unless the rendition of the copyrighted song or
dramatic composition were without the consent of the person
owning the copyright. His consent or nonconsent goes to the
very gist of the offense. The man who owns a copyrighted song
or dramatic composition has the right, if he chooses, to allow any
person to use it with or without compensation to him. The
offense consists in using it without his consent.
      If the owner of the copyright sells to proprietors of bookstores
or of music stores throughout the State of New York or else-
where his copyrighted work, whether a musical or a dramatic
composition, for the purposes of general sale by them from their
shelves, then, of course, everybody who buys such a composition
from those dealers buys with it the consent of the owner of the
copyright that they may sing or perform the thing they buy. The
sale is made with his consent that the song shall be sung or the
composition performed.
      Mr. STEWART of New Jersey. But is not that only one use of
the property, and is not. the public singing of the song for profit
another use?
      Mr. COOPER of Wisconsin. Not at all; I will show where the
mistake arises. If the author or owner of the copyright offers
his production for sale everywhere in bookstores and music stores,
and they sell it with his consent, then any person who buys it from
them of course buys with it his consent to perform it, and there is
no offense. But now go to line 14, and you find that if the unlaw-
ful performance or representation be for profit, then it will be a
misdemeanor. To make it a misdemeanor there must be an unlaw-
ful performance. But the performance is not unlawful when the
performer buys from a music dealer or from the proprietor of a
bookstore something which the proprietor of the store has himself
bought from the owner of the copyright. It is not unlawful for
me to reproduce publicly a thing that I have bought in that
way, because it is then my own property and I have bought the
right to produce it in any place or manner that I please.
      Mr. LACEY. Some gentlemen contend that the bill will have
an effect directly opposite to that suggested by the gentleman
from Wisconsin, and as the amendment which I propose would
make the law as the gentleman now claims it is, what objection
can there be to inserting the amendment?
      Mr. COOPER of Wisconsin. A very great objection. It was
pointed out by the gentleman from New York [Mr. Quigg].
Under this bill if the owner of a copyright does not sell to dealers
the right to sell the work generally, but himself retains the
copyright and sells only to an individual singer or to the pro-
prietor of a particular theater the right to sing the song or to
use the dramatic composition, then nobody has any right to make
a public representation or rendition of it except the individual so
licensed.
      Mr. LACEY. But the amendment covers that.
      Mr. COOPER of Wisconsin. But there is no necessity for it,
because the bill as it stands is absolutely correct on that point.
There can be no unlawful performance unless it be without the
consent of the owner, and if I copyright a song and sell it to deal-
ers to be sold by them over the counter, anybody who purchases
it from them buys with it my consent that he use it in any way
he may choose, and for profit or otherwise, in his discretion. It
is the property of the music dealer, and not my property, as soon
as I have sold it to him to put on his shelves. The distinction
made by the gentleman from New York is absolutely good; it is
as plain as the distinction between daylight and darkness.
      A man may own a copyright and not sell it for the use of the
world at large, just as the owner of a patented invention may
allow only one person or only four or five people in the whole
United States to use it. He may retain his right to the patent
and simply sell the patented articles. He is not obliged to allow
the right to be used by everyone. But if he places the articles
with storekeepers generally to be sold by them absolutely and
without condition, then the people who buy do so with his consent
that they use the article for profit if they desire. The particular
property sold in such cases becomes that of the man who buys;
it ceases to be that of the owner of the patent or copyright.

Chapter 1 Page 8


1896.                  CONGRESSIONAL RECORD—HOUSE.                  91

      The gentleman from New York made another valuable sugges-
tion—that the owner of a copyright might not want to part with
his rights in such a way as to allow the promiscuous production of
his work: he might be unwilling to allow the rendition or the in-
terpretation of his composition by every bungler who might hap.
pen to get hold of it. Take the case of the owner of a song—for
instance, the song "Lorena," published some years ago. the com-
position of a poor man who at that time lived in my district—a
genius, if ever there was one. He wrote the song, and a great many
thousands of dollars were made out of it. But he ought to have
had the right, after obtaining his copyright, to withhold that
song from public sale, and to give to an artist in the city of Chi-
cago, for instance, the right to sing it on the stage there. Nobody
else would have the right to sing a word of that song in public, so
long as the exclusive right had been given by the author to that
singer.
      Mr. CUMMINGS. Will the gentleman allow me a remark
right there? The song, '' Mamie, come kiss your honey boy," sung
by May Irwin, has brought to its author, as I read in the news-
papers, $50,000 in the form of royalties.
      Mr. COOPER, of Wisconsin. Exactly. In that way a song may
be sung into reputation and popularity all over the United States.
But if the owner of the copyright of a song wishes to sell it to the
music dealers in Chicago, in California, North and South Dakota,
North Carolina, and all the other States, then anyone who buys
the song from any one of those dealers buys it with the consent of
the owner of the copyright to the public or private performance
of the composition for profit or without profit. The distinction
which has been made seems to me to be perfectly good. And there
is no necessity whatever for the amendment of the gentleman from
Iowa.
      Mr. DRAPER. Mr. Speaker, it seems to me that this matter is
fully understood. I hope the amendment will not prevail. I ask
for a vote.
      Mr. LACEY. I ask for a division of the question upon my
amendment. The amendment embraces two propositions—first,
to strike out that part of the bill which proposes to make the
unlawful performance or representation of any dramatic or mu-
sical composition a misdemeanor punishable by imprisonment.
The amendment further proposes to insert new language in place
of that which I move to strike out. I ask a division of the ques-
tion, so that members may have an opportunity to vote as an inde-
pendent proposition on the motion to strike out.
      The SPEAKER pro tempore. The first part of the amendment
will be read.
      The Clerk read as follows:

      Strike out all after the word "just," in line 14, down to and including the
word " year," in line 17, the part proposed to be struck out being as follows:
      "If the unlawful performance and representation be willful and for profit,
such person or persons shall be guilty of a misdemeanor, and, upon convic-
tion, be imprisoned for a period not exceeding one year."

      The question being taken, the motion was rejected; there being—
ayes 9, noes 52.
      The SPEAKER pro tempore. The question is now on the
second branch of the amendment of the gentleman from Iowa,
which the Clerk will read.
      The Clerk read as follows:

      Insert after the word "just," in line 14, the following:
      The printing, publication, and sale of such dramatic or musical composi-
tion by the proprietor thereof shall be deemed sufficient consent to the public
performance or representation thereof."

      The question being taken, the amendment was rejected; there
being—ayes 10, noes 52.
      Mr. CONNOLLY rose.
      The SPEAKER. Has the gentleman from Massachusetts de-
manded the previous question?
      Mr. DRAPER. I have not. The gentleman from Illinois [Mr.
CONNOLLY] has an amendment to which the committee will agree.
      The SPEAKER. The amendment which the gentleman from
Illinois has sent up to the desk will be read.
      The Clerk read as follows:

      Amend by inserting after the word "granted," in line 17, the words " upon
hearing, after notice to the defendant."

      The question being taken.
      The SPEAKER. The noes seem to have it.
      Mr. CONNOLLY. I ask for a division. The chairman of the
committee is content with this amendment, I understand.
      The question being again taken, there were—ayes 43. noes 22.
      So the admendment was agreed to.
      Mr DRAPER. I now move the previous question.
The previous question was ordered; and under the operation
therefore the bill was ordered to a third reading, read the third
time, and passed.
      On motion of Mr. DRAPER, a motion to reconsider the last
vote was laid on the table.
MESSAGE FROM THE SENATE.


[...]


Transcription by: Megan Wren

    

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