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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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No Translation available.
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.
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
Back | Record | Images | No Commentaries
Translation only | Transcription only | Show all | Bundled images as pdf
No Translation available.
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.