The Moving picture world (May 1922)

384 MOVING PICTURE WORLD May 27, 1922 The Other Side of the Music Tax A Discussion of the Composer's Position in the Collection of Fees for the Use 1AM the chairman of the executive board of the Music PubHshers' Protective Association. In that capacity I come, from time to time, in contact with the problems confronting the American Society of Composers, Authors and Publishers. The two organizations are distinct and separate, having nothing in common except that some of the publishers that belong to the M. P. P. A. are also members of the A. S. C. A. & P. In the past it has been the custom of the publishers, from time to time, to discuss with me the experiences of the A. S. C. A. & P. in the matter of collecting from exhibitors license fees for the right to publicly perform, for proUt, musical compositons of which they were copyright proprietors. The first of these discussions occurred shortly prior to November, 1920. I looked into the situation at that time, at the solicitation of various publishers, and found it to be substantially as follows : Seven years before, the American Society of Composers, Authors and Publishers had been founded by an earnest group of the men who are writing "hit" tunes of this country. Amongst its objects was the one of protecting the rights of its members as to the public performance, for profit, of their compositions. At the time of its organization, the publishers had been invited to become members, as they were the business representatives of the authors and composers, and it seemed proper that their counsel and association should be invited in carrying out the purposes of the organization, which were various, and not confined to the protection of performing rights only. Several of the publishers became members, and the society proceeded to the objectives of its organization. We are concerned in this article only with that part of its purposes which relates to the collection of license fees for the public performance, for profit, of the compositions of its members. It is in order, at this point, to make clear the principles and foundation upon iwtiich the right to the collection of such fees is based. When the Constitution of the United States was written, there was included in it a provision that for the encouragement of the arts and sciences Congress should have power to enact copyright and patent laws, securing to authors and inventors an absolute monopoly in the exclusive ownership and control of their works. Pursuant to this Constitutional authority Congress has from time to time enacted such legislation, and included in the rights granted to authors and composers are those of printing and vending copies of their works : licensing the mechanical reproduction thereof, and controlling or licensing the public performance, for profit, of their copyrighted compositions. From 1856 to 1897 the right to control public performance included only literary or dramatic works, but in 1897 the scope of the law was widened to include musical works. This inclusion of music was a voluntary act of Congress — neither inspired nor besought by authors and composers, of which there were but few in this country at that time in the field of so-called "popular" music. In all of the civilized countries of the world, the principle of the dominion of an author and composer over tjie creation of his mind had been recognized for many years, and the so-called "performing rights" had been paid for in such countries, by those who publicly performed for profit copyrighted compositions. of Their Creations By E. C. MILLS Years ago I was closely associated with the exhibitors of the southwest — had been somewhat of a factor in their organizations, had fought censorship, Sunday-closing and other "blue laws" with them, and I felt that if the exhibitors were given a chance to become familiar with the proposition they would not hesitate to meet the situation honorably and justly. It was pointed out to me that for seven years the society had been telling them all about the proposition, that literally thousands of letters had been sent them, and that every motion picture theatre in the United States had had ample opportunity to inform itself upon the subject. I was told that the resistance to payment of the fees had been so determined that it was necessary to ' engage attorneys in various sections of the country, and file suits in the Federal Courts against infringing exhibitors, in order to compel their compliance with the law. I nevertheless urged patience, and another sincere try at showing the exhibitor what it was all about. The society yielded to my recommendations and made an appropriation for the insertion of five full page advertisements in the three leading motion picture periodicals. I prepared the copy for these articles, and tried to tell the exhibitors the plain facts, in plain language. The effort was an utter failure, and did not result, as I had hoped it would, in an abandonment of the use of aforneys' services, for the exhibitors met this effort with defiance of the law, contumely and epithet. Pursuant to my recommendation however, for a full year the society exercised patience, and it then became clear that the exhibitor was not in good faith questioning the legality of our position, nor the justice of the society's contentions, but was, under the leadership and advice of his trade organization simply determined to "beat" the proposition if he could. So then the society started going into court with him again, and the result has been the same in case after case. When the exhibitor receives his summons to come to court, he consults his lawyer, and it does not take his lawyer long to tell him to pay, and pay quick. When his lawyer doesn't tell him that, it just costs the exhibitor a minimum of $250.00, plus his attorney's fees. And, that is what it will continue to cost him, as often as he is taken into court, for the society does not invoke the law until it has absolute, unquestionable pfoof of a violation of law by the exhibitor. It seems pertinent to comment here upon the attitude of the national exhibitors' organizations which have from time to time taken this matter up. A few years ago their national organization made a proposal to act as the society's agent in the collection of these fees, the consideration to be that it was to receive SO per cent, of the amount collected, and the negotiations went so far as to have the contracts drawn. Then the license fees were all right, if the organization could just profit by them. However, that deal fell through, and since the leaders of the organizations in existence have consistently advised the membership to oppose the payment of these fees, I question the good faith of the advice : for instance it is of record that Sidney Cohen's checks, in payment of the fees for his theatres, are among the ones most promptly received by the society. So also as to most of the other leaders whom the exhibitors' organization has from time to time had. The so-called "music tax" has been made an issue at convention after convention ; all sorts of suggestions to combat it have been made, and so far as I know, not a single one to meet the issue upon its merits. At the behest, and pursuant to the recommendations of the organizations, exhibitors have time after time gone into the courts, only there to find that the author and composer had his rights, and that the courts would sustain them — and the sustaining has been at a very considerable expense to the exhibitors who tried it out in this fashion. Every possible defense "that could be imagined by clever attorneys has been raised in these infringement cases, and every one of them has been wrecked on the solid rock of justice and right. The exhibitors' organization, instead of frankly recognizing the justice and right of the authors' and composers' position in this matter, and coming frankly to their organization to meet the issue in a sane and businesslike way, has used the intricacies of argument and legal debate wherewith to cloud the issue and continue it from year to year as a safe "red flag" that could be waved in the exhibitor's face and arouse him to the payment of dues, and the further support of the organization which constantly promises to relieve him, by some means or other, of the necessity of paying fees for the public performance, for profit, of copyrighted music. What have these promises amounted to? Actually nothing at all. I remember a convention or so back it was proclaimed that there had been a bill introduced in the Legislature of Illinois making it a misdemeanor for a copyright proprietor to collect such fees. The authors and composers paid absolutely no attention to the bill, and it died in the Illinois lawmaking body. Why? The Lieutjenant Governor of the state owned a motion picture theatre ; the exhibitors had convinced many of the politicians that they should, for political reasons, vote for the measure ; but when they were faced with the alternative of passing an openly unconstitutional act, or defeating it, they defeated it. Attorney Hopkins, Attorney General of Kansas, representing as counsel the exhibitors' organization of that State, is reputed to have stated that he would secure the introduction and passage of a similar law in the Kansas Legislature. The authors and composers wrote the Kansas exhibitors and invited them to go through with the proposition. In the courts, from one end of the country to the other, every possible argument and defense has been introduced — with but one result, victory for the authors and composers. One case involving these rights was carried to the Supreme Court of the United States; and there the author and composer was unanimously sustained. In June, 1921, Hon. Florian Lampert, chairman of the Patents Committee and representative from Wisconsin, by request of the exhibitors, introduced a bill to amend the Copyright Act so as to relieve the exhibitors from the payment of fees for license to publicly perform, for profit, copyrighted music. Eleven months passed and no action was taken on the bill. It was set for a hearing on May 5th, it was not heard. It was again set for a hearing on May 15th. Again, it was not heard. Frankly, it is doubtful if it ever will he heard — for the simple reason that it is a purely private bill, in which there is no public interest, seeking to serve purely selfish ends, and against the public policy as in effect for {Continued on page 385)