The talking machine world (Jan-Dec 1908)

THi: TALKING MACHINE WORLD. 21 eration of the questiou, it must be admitted that the decisions so far as brought to our attention in the full discussion Iiad at the bar and upon briefs have been uniformly to 'the effect that these perforated rolls operated in connection with mechanical devices for the production of music are not within the copyright act. It was held so in Kennedy against ilcTammany, 33 Fed. 584. The decision was written by .Tudge Colt in the first circuit; the case was subsequently brought to this court, where it was dismissed for failure to print the record. In that case the learned judge said ; "I cannot convince myself that these perforated sheets of paper are copies of sheet music within the unaniug of the copyright law. They aie not made to be addressed to the eye as sheet music, but they form a part of the machine. They are not designed to be used for such purposes as sheet music, nor do they in any sense occupy the same Held as sheet music. They are mechanical invention made for the sole purpose of performing tunes mechanically upon a musical instrument."' STERN AGAINST KOSBT CASE CITED. Again the matter was given careful co-nsideration in the Court of Appeals of the District of Columbia in an opinion by Justice Shepard (Stern against Rosey, 17 App. D. C. 562), in which that learned justice, speaking for the court, said : "We cannot regard the reproduction, through the agency of a phonograph, of the sounds of musical instruments playing the music composed and published by the complainants, as the copy or publication of the same within the meaning of the act. The ordinary signification of the words 'copying,' 'publishing,' etc., cannot be stretched to include it. It is not pretended that the marking upon waxen cylinders can be made by the eye or that they can be utilized in any other way than as parts of the mechanism of the phonograph. "Conveying no meaning then, to the eye of even an expert musician and wholly incapable of use save in and as a pai't of a machine specially adapted to make them give up the records which they contain, these prepared wax cylinders can neither substitute the copyright sheets of music nor serve any purpose which is within their scope. In these respects there would seem to be no substantial difference between them and the metal cylinder of the old and familiar music box. and this, though in use at and before the passage of the copyright act. has not been regarded as infringing upon the copyrights of autliors and publishers." QUESTION BEPOIiE ENGLISH COURTS. The question came before the English courts in Bfiosey against Wright (1899 1 Ch. 836; 80 L. T. R. 561), and it was there held that these perforated rolls did not infringe the English copyright act protecting sheets of music. Upon appeal, Lindley, Master of the Rolls, used this pertinent language (1900, 1 Ch. 122 ; SI L. T. R. 265) : "The plaintiffs are entitled to copyright in three sheets of music. What does this mean'/ It means that they have the exclusive right of printing or otherwise multiplying copies of those sheets of music, i. e., of the bars, notes, and other printed words and signs on these sheets. But the plaintiffs have no exclusive right to the production of the sounds indicated by or on those sheets of music ; nor the performance in private of the music indicated by such sheets ; nor to any mechanism for the production of such sounds or music. The plaintiff's rights are not infringed except by an un-. authorized copy of their sheets of music. We need not trouble ourselves about authority ; no question turning on the meaning of that expression has to be considered in this case. The only question we have to consider is whether the defendants have copied the plaintiff's sheets of music. "The defendants have taken those sheets of music and have prepared from them sheets of paper with perforations in them, and these perforated sheets, when put into and used with properly constructed instruments or machines, v^ill produce or enable the machines to produce the music indicated on the plaintiff's sheets. In this sense the defendant's peif orated rolls have been copies from the plaintiff's sheets. "But is this the kind of copyright which is prohibited by the copyright act : or, rather, is the perforated sheet niade as above mentioned a copy of the sheet of music from which it is made'.' Is it a copy at all? Is it a copy within the meaning of the copyright act? A sheet of music is treated in the copyright act as if it were a book or sheet of letter press. Any mode of copying such a thing, whether by printing, writing, photography or by some other method not yet invented, would no doubt be copying. So, pernaps, might a perforated sheet of paper to be sung or piayed from in the same way as sheets of music are sung or played from. But to play an instrument from a sheet of music which appears to the eye i^ one thing ; to play an instrument with a perforated sheet which itself forms part of the mechanism which produces the music is quite another thing." PREVIOUS ACTION OF CONGRESS APPROVED. Since these cases were decided Congress has repeatedly had occasion to amend the copyright law. The English cases, the decision of the District Court erf Appeals, and Judge Colt's decision must have been well known to the meuibers of Congress ; and although the manufacture of mechanical musical instruments had not grown to the proportions which they have since attained they were well known, and the omission of Congress to specifically legislate concerning them might well be taken to be an acquiescence in the judicial construction given to the copyright laws. This country was not a party to the Berne convention of 1886, concerning international copyright. After the Berne convention the act of March 3, 1891, was passed. Section 13 of that act provides : "That this act shall apply only to a citizen or subject of a foreign state or nation when such foreign state or nation permits to citizens of the United States of America the benefits of copyright on substantially the same basis as to its own citizens : and when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terras of which agreement the United States of America, may. at its pleasure, become a party to such agreement. 'The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation made from time to time as the purposes of this act may require." STANDING OF FOREIGN AND AMERICAN COMPOSERS. By proclamation of the President, July 1, 1891, the benefit of the act was given to the citizens of Belgium, France, British possessions and Sweden, which counti'ies permitted the citizens of the United States to have the benefit of copyright on the same basis as the citizens of those countries. On April 30, 1892, the German •Empire was included. On Oct. 31, 1892, a sirtiilar proclamation was made as to Italy. These countries were all parties to the Berne convention. It could not have been the intention of Congress to give to foreign citizens and composers advantages in our country which, according to that convention, were to be denied to our citizens abroad. In the last analysis this case turns upon the construction of a statute, for it is perfectly well settled that the protection given to copyrights in this country is wholly statutory. CONGRESS DEALT WITH A TANGIBLE THING. Musical compositions have been the subject of copyright protection since the statute of Feb. 3, 1831, and laws have been passed including them since that time. When -\ve turn to the consideration of the act it seems evident that Congress has dealt with a tangible thing, a copy of which is required to be filed with the Librarian of Congress, and wherever the words are used (copy or copies) they seem to refer to th? term in its ordinary sense of indicating reproduction or duplication of the original. Section 4956 pro-vides that two copies of a book, map, chart or musical composition, etc., shall be delivered at the office of the Librarian of Congress. Notice of copyright must be inserted in the several copies of every edition published, if a book, or if a musical composition, upon some visible portion thereof. Section 4905 provides in part that the infringer "shall forfeit every sheet thereof, and one dol. lar for every sheet of the same found in his posses ATTENTION! Jobbers Save Money by buying Talking Machine Repair Parts from us, and save 100 per cent. We do not manufacture unsatisfactory goods, and do not claim that we sell parts cheaper than any other supply house. BUT WE DO CLAIM that our parts are of the very BEST, and GUARANTEED by us. Send us a trial order and judge for yourself. Catalogue of over 300 parts mailed free upon request. THE TALKING MACHINE SUPPLY CO. 400 FIFTH AVENUE, NEW YORK sion," etc., evidently referring to musical compositions in sheets. Throughout the act it is apparent that Congress has dealt with the concrete and not with an abstract right of property in ideas or mental conceptions. STATUS OP PERFORATED JIUSIC ROLLS. We cannot perceive that the amendment of section 4966 by the act of .Jan. 6. 1897, providing a penalty for any person publicly performing or representing any dramatic or musical composition for which a copyright has been obtained, can have the effect of enlarging the meaning of the previous sections of the act, which were not changed by the amendment. The purpose of the amendment evidently was to put musical compositions on the footing of dramatic compositions so as to prohibit their public performance: There is no complaint in this case of the public performance of copyrighted music ; nor is the question involved whether the manufacturers of such perforated music rolls when sold for use in public performance might be held as contributing infringers. This amendment was evidently passed for the specific purpose referred to, and is entitled to little consideration in construing the meaning of the terms of the act theretofore in force. MEANING OF A COPY. What is meant by a copy? We have already referred . to the common understanding of it as a reproduction or duplication of a thing. A definition was given by Bailey, J., in West against Francis, 5 B. & A., 743, quoted with approval in Boosey against Wright. He said : "A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original." Various definitions have been given by the experts called in the case. The one which most commends itself to our judgment is perhaps as clear as can be made, and defines a copy of a musical composition to be a "written or printed record of it in intelligible notation." It may be true that in a broad sense a mechanical instrument which reproduces a tune copies it; but this is a strained and artificial meaning. When the combination of musical sounds is reproduced tO' the ear it is the original tune as conceived by the author which is heard. These musical tones are not a copy which appeals to the eye. In no sense can musical sounds which reach us through the sense of hearing he said to be copies as that term is generally understood, and as we believe it was intended to be understood in the statutes under consideration. MUSICAL COMPOSITION AN INTELLECTUAL CRE.ITION. A musical composition is an intellectual creation which first exists in the mind of the composer ; he may play it for the first time upon an instrument. It is not susceptible of being copied until it has been put in a form which others can see and read. The statute has not provided for the protection of the intellectual conception apart from the thing produced, however meritorious such co-nception may be, -but has provided for the making and filing of a tangible thing, against the publication and duplication of which it is the purpose of the statute tc^ protect the composer. Also it may be noted in this connection that if the broad construction of publishing and copying contended for by the appellants is to be given to this statute it would seem equally applicable to the cylinder of a music box, with its mechanical arrangement for the reproduction of melodious sounds, or the record of a graphophone, or to the pipe organ operated by devices similar to those in use in the pianola. All these • instruments were well known when these various copyright acts were passed. Can it be that it was the intention of Congress to permit them to be held as infringements and suppressed by injunctions? PERFORATED ROLLS NOT READABLE AT SIGHT. After all, what is the perforated roll? The fact is clearly established in the testimony in this case that even those skilled in the making of these rolls are unable to read them as musical compositio-ns, as those in staff notation are read by the performer. It is true that there is some testimony to the effect that great skill and patience might enable the operator to read this record as he could a piece of music written in staff notation. But the weight of the testimony is emphatically the other way, and they are not intended to be read as an ordinary piece of sheet music, which to those skilled in the art conveys, by reading, in playing or singing, definite impressions of the melody. These perforated rolls are parts of a machine which, when duly applied and properly operated in connection with the mechanism to which they are adapted, produce musical tones in harmonious combination. But we cannot think that they are copies within the meaning of the copyright act. RELIEF IX CONGRESS ONLY. It may be true that the use of these perforated rolls, in the absence of statutory protectio'n, enables the manufacturers thereof to enjoy the use of musical compositions for which they pay no value. But such considerations properly address themselves to the legislative and not to the judicial branch of the government. As the act of Congress now stands we believe it does not include these records as copies or publications of the copyrighted music involved in these cases. The decrees of the Circuit Court of Appeals are affirmed. The opinion of Mr. Justice Holmes, "concurring specially," is as follows: Justice Holmes' Opinion. In view of the facts and opinions in this country and abroad to which my brother Day has called attention. I do not feel justified in dissenting from the judgment of the court, but the result is to give copyright less scope than its rational significance and the ground on which