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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.
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.
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.
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.