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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. 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
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.
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