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RATE SCHEDULE

This rate schedule applies to Bars, Grills Taverns, Restaurants, Lounges, Supper Clubs, Night Clubs, Piano Bars, Cabarets, Roadhouses and similar establishments where

(a) The highest price (when musical entertainment is provided) of a nationally advertised brand of bourbon, rye or scotch is less than 85¢ a drink, or

(b) If the establishment does not sell liquor, but sells beer, or if liquor or beer are not sold but the establishment sells set-ups. the highest price (when musical entertainment is provided) of a bottle, can, draught. or other serving of a nationally advertised domestic beer, or an individual set-up where beer is not sold. is less than 50g

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-Admission, minimum, cover, entertainment or similar charge.

-- Alternate or relief music (live) by an instrumentalist except in those cases where the alternate music is provided solely at the time of a show or act(s).

**VARIABLES (Applicable to two or more instrumentalists):

- Show or act(s).

-Admission, minimum, cover, entertainment or similar charge

--Alternate or relief music (live) by a band or an instrumentalist except in those cases where the alternate music is provided solely at the time of a show or act(s).

10-12 74 ©

RATE SCHEDULE

This rate schedule applies to Bars, Grills, Taverns, Restaurants, Lounges, Supper Clubs, Night Clubs, Piano Bars, Cabarets, Roadhouses and similar establishments where.

(a) The highest price (when musical entertainment is provided) of a nationally advertised brand of bourbon, rye or scotch is 85¢ or more a drink; or

(b) If the establishment does not sell liquor but sells beer, or if liquor or beer are not sold but the establish ment sells set-ups, the highest price (when musical entertainment is provided) of a bottle, can, draught, or other serving of a nationally advertised domestic beer, or an individual set-up where beer is not sold. is 50g or more.

A rate schedule applicable to establishments charging less than the amounts set forth above will be furnished to such establishments.

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*VARIABLES (Applicable to single instrumentalist):

--Show or act(s) or vocalist (s).

-Admission, minimum, cover, entertainment or similar charge.

-Alternate or relief music (live) by an instrumentalist except in those cases where the alternate music is provided solely at the time of a show or act(s).

**VARIABLES (Applicable to two or more instrumentalists):

-Show or act(s).

-Admission, minimum, cover, entertainment or similar charge.

-Alternate or relief music (live) by a band or an instrumentalist except in those cases where the alternate music is provided solely at the time of a show or act(s).

SEASONAL RATES

For seasonal licensees, the rates for periods up to four months of operation are 1/2 the annual rate; for each additional month the rate is 1/12 the annual rate. The seasonal rate will in no case be more than the annual rate.

COMPUTATION OF RATE FOR MIXED POLICIES

1. Compute rate for the higher policy for the number of nights that the higher policy is in effect. The "higher policy" is the policy which generates the highest rate for any one day.

2. Note total number of nights entertainment is provided.

3. Compute rate for the lower policy using the total number of nights entertainment is provided under both the higher and lower policies.

4. Compute rate for the lower policy using the number of nights the higher policy is in effect.

5. Subtract rate computed in step 4 from rate computed in step 3.

6. Add rate computed in step 1 to rate computed in step 5 for total rate.

150M-12/74 (C)

Mr. KASTEN MEIER. Mr. Chapin, will Mr. Oliver be your next witness?

Mr. CHAPIN. Yes. If it is permissible to you, I would like to use BMI's time first with Mr. Oliver's statement, and then I think that Mr. Frank Peewee King is probably not going to be here in time. I would like to just read a small portion of his statement. And finally, with your permission, we had filed a supplemental statement that I just want to submit for the record, if that is acceptable.

Mr. KASTEN MEIER. Without objection, statements by individual members of the panel on behalf of your organization will be accepted

for the record.

[The prepared statement of Broadcast Music, Inc. follows:]

STATEMENT OF BROADCAST MUSIC, INC.

BMI (Broadcast Music, Inc.) is the largest of the U.S. performing rights licensing organizations, representing over 40,000 writers and publishers located in every state. Most of the copyrighted music heard in America today is licensed by BMI.

The so-called jukebox exemption from payment of performance royalties was enacted in 1909. It was unjustified at that time, and certainly is today. No one seriously questions its inherent unfairness in 1975. Royalties are paid for all other performances for profit. The jukebox industry should not be singled out for a "free ride."

The anomaly of this situation is pointed up by the fact that in foreign countries royalties are paid for performances on jukeboxes. It is strange that the composer of Tennessee Waltz will be paid for a jukebox performance in Paris but not in Nashville.

The real question then is not if the jukebox industry should pay but how much they should pay.

Our position on the question of what the jukebox royalty rate should be is simply that there should not be a fixed statutory rate. The fixing of such a rate should be left to the usual processes of orderly negotiation between the interested parties, i.e., the performing rights associations on one hand and the representatives of the jukebox industry on the other hand. In this way, a true market place value can be placed on the rights given to the jukebox opreators. This is the way that rates are set for television, radio and most other users of music, and for BMI this method has worked efficiently and in the best interest of all concerned, the user, the creator and the public. There is no valid reason why the jukebox industry should continue to be treated differently from others in the music field.

If Congress were to set a fixed royalty rate, such rate would necessarily become outmoded as economic factors changed. Nor is a cost of living escalation provision the answer because other market factors both in the jukebox industry and the music licensing field are constantly changing. Congress should stay away from the rate making business. We should point out that Congress has traditionally not taken it upon itself to legislate fixed rates. Generally, if rates are fixed at all, it is the administrative agencies, and not Congress, which make any rate determinations. As stated above, however, we do not favor even an administrative agency being charged with this task. Such a Government agency would inevitably mean increased administrative expense and therefore decreased revenues to the beneficiaries of the amounts administered.

If Congress does adopt the above approach, in considering alternatives we would urge that the Copyright Royalty Tribunal periodically review that rate in a manner which can take into account all appropriate factors. As we stated above, there is no valid reason why the jukebox industry should be treated differently from other users of music.

If the Congress does not adopt a "free market place" approach or the Copyright Royalty Tribunal approach, we submit that the $8 rate provided for in HR. 2223 is not a fair value in today's market place. It must be remembered that such rate was contained in the 1967 House of Representatives Copyright Revision Bill. In eight years inflationary trends have certainly made any rates set in 1967 outmoded. Not to mention the ever increasing amounts the jukeboxes charge. Even in 1958 the Senate Committee on the Judiciary determined that a yearly per box payment of $19.70 would be reasonable.

Furthermore, it is important to recognize how the $8 rate was arrived at in 1967. It was the result of a compromise worked out by the Copyright Office with the understanding that this would remove one of the last barriers to immediate copyright revision. Thus, the consideration was that the jukebox owners would begin paying in 1968 at the rate of $8 a box. Obviously, that consideration is no longer valid because there has been no copyright revision bill, and, more important, the jukebox owners have not paid anything during the past 8 years.

The above is in summary form and we would be pleased to submit, in writing or at a hearing, any additional comments or information which you, or your subcommittee, may desire. We, of course, would like to reserve our right to comment further as the legislative process on copyright matters unfolds in the 94th Congress.

Mr. KASTENMEIER. The Chair should observe that 10 years ago here Mr. Herman Finkelstein, Mr. Korman's predecessor, represented ASCAP, and was it not Sydney Kaye who represented BMI for so many years, both very distinguished people, but apparently they have both retired in terms of actively representing the organizations.

Mr. KORMAN. Perhaps, Mr. Chairman, they just got discouraged. I notice that the same spokesmen are continuing to appear for the jukebox industry.

Mr. KASTEN MEIER. Well, I should hope not.
Mr. Oliver, we will call on you.

TESTIMONY OF SY OLIVER, COMPOSER, ACCOMPANIED BY EDWARD CHAPIN, GENERAL COUNSEL, BROADCAST MUSIC, INC.

Mr. OLIVER. Mr. Chairman and gentlemen, my name is Sy Oliver. I am an arranger/composer and orchestra leader. I wish to speak to the removal of the jukebox exemption from payment for use of copyrighted music.

May I interject here, I am not speaking to the fiscal details involved. I am a writer. I do not have those facts at hand, and I am sure that that will be taken care of. But I would just like to speak my own position as a writer.

Gentlemen, this exemption was established by a law written in the year 1909. One year before I was born and many years before the music industry, as it exists today, came into being. And yet this law, written in good faith but for another time and totally different circumstances, still pertains.

I have been a professional musician since 1928. I was a member of the Jimmie Lunceford Orchestra when it achieved international attention in the thirties, ranking in popularity with the great Duke Ellington. Many of my compositions, as recorded by that orchestra, were outstanding hits and are currently popular both in sales and radio plays as well as jukebox plays. I am paid writers royalties from record sales, performance royalties from radio plays but nothing from 40 years of jukebox plays.

During the years 1939 through 1943 I composed and arranged for the Tommy Dorsey Orchestra. Again many of my compositions such as "Opus One" and "Yes Indeed" became famous record hits. The latter two, according to BMI performance records, each enjoyed more than a million radio performances by the midfifties. Again I was paid for record sales, radio performance. Nothing for jukebox plays which exceeded radio plays many times.

After my Army service I became musical director for Decca Records. Currently, I am leading my own orchestra for an extended en

gagement at the Rainbow Room in Rockefeller Center, New York City.

The foregoing is to establish that I am indeed involved in the problem at hand.

As a member of the Jimmie Lunceford Orchestra, I began recording for the Decca Record Co. in 1934. It was about this time that the situation with which we are faced today was born-the time when the writers and publishers made a major sacrifice for the then infant jukebox industry. More of this later.

It should be noted that at the time the law exempting jukeboxes from payment for use of copyrighted music was written, there was no jukebox industry as we know it. Machines for playing records were to be found in cafes and saloons along with roll-playing pianos but they were the exclusive property of the proprietors-solely for the entertainment of his customers. It is unlikely that the proprietor ever realized the cost of the machine from its revenue, certainly not a profit. Hence the exemption. Gentlemen, the exemption was decreed because no profit was being derived from the use of copyrighted music. That is not the case today. Nor could the legislators of 1909 be expected to anticipate the conditions existent in 1975.

So it was with the writers and publishers I mentioned earlier on. Never dreaming in 1934 that the jukebox industry would become the giant it is today, they agreed to reduce their royalty rate by 50 percent which it remains today. to permit the sale of a 35-cent record as opposed to the standard 75-cent price. This 35-cent record was for the benefit of the jukebox sales. Admittedly a shortsighted policy in hindsight. But, rightly or wrongly, the end result was, the tail is finally wagging the dog. For today, I firmly believe that more profit is made from the jukebox play of copyrighted music than any other single source. For this the jukebox industry pays nothing, making the copyright law as it exists meaningless. I do not believe the legislators of 1909 intended this.

It should be noted that all other creative work produced by Americans is protected by our copyrighted code.

For instance, books published for public sale but private use cannot be used in whole or even in part for purposes of profit such as movies, TV, or stage plays without the permission of, and compensation to, the owner of copyright or his agent.

Conversely, musical recordings employing copyrighted music and similarly published for public sale but private use are being used for purposes of profit by the coin machine operators with no return to the owners of copyright. Much as though MGM had made "Gone With the Wind" without compensation to the owner of copyright.

So, on behalf of all writers and publishers, I ask for the removal of the jukebox industry's exemption from payment for the use of copyrighted music for purposes of profit-a contingency not anticipated by the writers of the code of 1909 and still in effect.

Thank you.

[The prepared statement of Sy Oliver follows:]

STATEMENT OF SY OLIVER, REPRESENTING BROADCAST MUSIC, INO.

My name is Sy Oliver. I am an arranger/composer and orchestra leader. I wish to speak to the removal of the jukebox exemption from payment for use of copyrighted music.

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