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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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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

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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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