By the time of this country's independence the importance of copyright laws was so obvious that between 1783 and 1786 twelve of the thirteen states enacted statutes protecting intellectual creations. The Preamble of the Massachusetts Statute typified the purpose of these laws.

"Whereas the improvement of knowledge, the progress of civilization, the public weal of the community, and the advancement of human happiness greatly depend on the efforts of learned and ingenious persons in the various arts and sciences: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves; and as such security is one of the natural rights of all men, there being no property more peculiarly a man's own than that which is produced by the labour of his mind." "

These statutes, however, were varied in coverage and limited in operation to the territorial jurisdiction of a particular state. The resulting confusion produced an atmosphere at the Constitutional Convention receptive to the creation of authority enabling the establishment of a federal copyright law. The keystone of our present copyright law was thus made a federal matter by the inclusion in the U.S. Constitution of the provision that "The Congress shall have Power.. To promote the Progress of Science and useful Arts, by securing, for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries."

The first federal copyright law was enacted in 1790, but it was not until 1831 that musical compositions were added to the list of protected subjects. The Act of 1856 was the first to grant protection to public performances of any kind and was limited to dramatic compositions. The Act of 1897 further extended the protection of public performance to musical compositions, but probably due to the infancy of the phonograph industry, the last general revision of the Copyright Law in 1909 did not include any protection for sound recordings.

In 1925 the first bill specifically including sound recordings as copyrightable works was introduced by Representative Randolph Perkins of New Jersey, and included "phonographic records, perforated rolls, and other contrivances by means of which sounds may be mechanically reproduced." Hearings on the Perkins Bill was held, but no action was taken. Between 1926 and 1931, Representative Albert Vestal of Indiana, introduced general revision bills which also would have extended copyright protection to phonograph records and the first time would have prohibited the unauthorized broadcasting and public performance of records. Later versions of this bill excluded any rights to control public performance of recordings. In 1936 another attempt was made to enact a general revision to the copyright law and to that end, bills were introduced by Representatives John Daly of Pennsylvania and William Sirovich of New York which again would have extended protection to phonograph records and which would have protected the right to be compensated for the public performance of those recordings."

Record performers for the first time organized for the purpose of securing a right which even then they felt had long been denied. An organization known as the National Association for the Performing Arts was founded which included among its members Fred Waring, Paul Whiteman, Guy Lombardo, Eddie Duchin, Andre Kostelanetz, Fred Astaire, Bing Crosby, Jeanette MacDonald, Eddie Cantor, Helen Hayes, Sophie Tucker, Alexander Walcott and Leopold Stokowski. The complaint of the performers, then, was the same as it is today; that their recordings were being used in direct competition with their live performances and that others were reaping profits through the use of the performer's talent without the performer receiving any compensation."

The arguments of the opponents of performance rights, too, were the same as they are today. They attacked the idea of copyright in sound recordings as "rather fantastic," as "unconstitutional," as "dangerous," and as "serously prejudicial to their legitimate interest." They urged the danger of new "power trusts and of new licensing societies which could cut off the people's supply of

Act of March 17, 1783, Ch. 26, Found in, Copyright Enactments, Copyright Off. Bull. No. 3, at 4 (1963).

a Art. I, Sec. 8. cl. 8.

H.R. 11258, 68th Cong., 2d Sess.

H.R. 10632, H.R. 11420, 74th Cong., 2d Sess. (1963).

Hearings Before the House Committee on Patents on Revision of Copyright Laws, 74th Cong., 2d Sess. 655-693 (1936).

79-397 0-67-pt. 4- -14

music." The author-publisher groups argued that the creation of new rights in recordings would represent an unwarranted abridgement of their rights.' Neither the Sirovich nor the Daly Bill was reported.

A number of other bills were introduced between 1936 and 1947 to grant copyright protection to sound recordings. Among them were bills introduced by Senator (then Representative) Hugh Scott in 1943, 1947 and 1951. The Scott bills would have amended the copyright law to grant copyright protection for the public perfromance for profit of sound recordings. Hearings were again held in 1947 and performers again testified urging passage of the legislation, stressing the creative nature of a performance, its paramount importance to the popularity of a record, and the inadequacy of common law protection. These bills, like all previous efforts to secure copyright protection in sound recordings, failed, and no further action was taken until the present efforts to revise the copyright law. Performers not only attempted to secure protection of their recorded performances through legislation, but also sought judicial relief. The earliest and most famous case to deal with the problem of unauthorized broadcasting of phonograph records was brought by Fred Waring against the WDAS Broadcasting Company in the state court of Pennsylvania.1o The court held that the performer's contribution was creative and deserving of common law copyright protection, and enjoined the further commercial broadcast of Waring's records without his express consent.

11

Since radio waves do not respect state boundaries, it was necessary to file suits against broadcasters in neighboring states. In a suit brough in the federal district court of North Carolina " the Waring decision was followed, but as a result of the latter decision, three states, North Carolina, South Carolina, and Florida passed statutes cutting off common law property rights in the performances on phonograph records once the records were sold.

12

Following Waring's lead, Paul Whiteman filed suit against station WNEW in New York, seeking to enjoin the use of his records without his consent. The Court of Appeals was unwilling to follow the Pennsylvania decision, as that would have resulted in granting perpetual common law copyright protection in an area where Congress would only grant a monopoly for a limited period of years. The court, assuming that an orchestra conductor had a common law property right in his rendition, held that the sale of the record constituted “publication" i.e., a dedication to the public, which destroyed the common law meaning of a copyright. It held "any relief which justice demands must be found in extending statutory copyright to such works, not in recognizing perpetual monopolies, however limited their scope."

13

The court recognized the effect of the Waring decision in Pennsylvania but refused to enjoin the use of records by a radio station in New York. Although knowingly permitting a violation of the laws of Pennsylvania since the broadcasts reached receiving sets in that state, the court was unwilling to safeguard Pennsylvania property rights by the use of its judicial powers in New York."

Discouraged by the Whiteman decision, the members of the NAPA lost the impetus to carry the fight further in the courts and after their appearance at the 1947 House hearings, the organization disbanded. Attempts by the bandleader, Tommy Dorsey, to reorganize the record performers failed, and it was not until the formation of the National Committee for the Recording Arts that any further organized effort was made to secure perfromance rights in sound recordings.

7 An excellent summary of the arguments is provided in Barbara Ringer's study of the history of attempts to include sound recordings in the copyright law. "The Unauthorized Duplication of Sound Recordings," at 29-30, Study No. 26, prepared for the Subcommittee on Patents. Trademarks, and Copyrights of the Senate Committee on the Judiciary. 86th Cong., 2d Sess.. (Comm. Print 1961) (hereinafter cited Ringer, The Unauthorized Duplication of Sound Recordings).

H.R. 1570, 78th Cong., 1st Sess. (1943); H.R. 1270, 80th Cong., 1st Sess. (1947); and H.R. 2464, 82nd Cong., 1st Sess. (1951).

Hearings before the Subcommittee on Patents, Trademarks, and Copyrights of the House Committee on the Judiciary on H.R. 1269, H.R. 1270, and H.R. 2570, 80th Cong.. 1st Sess.. at 6-16, 20-22, and 203-231 (1947).

10 Waring v. WDAS Broadcasting Station, Inc., 327 Pa. 433, 194 Atl. 631 (1937). 11 Waring v. Dunlea, 26 F. Supp. 338 (E.D.N.C. 1939).

19 RCA Mfg. Co. v Whiteman, 114 F. 2d 886, 89 (2nd Cir.), cert. denied, 311 U.S. 712 (1940).

13 114 F. 2d at 89.

14 The holding in the Whiteman case that sale of a record constituted a "publication" which destroyed the common law copyright has apparently been overruled in a later decision by the Second Circuit in Capitol Records, Inc. v. Mercury Records Corp., 221 F 2n 657 (2nd Cir. 1955). See Ringer, The Unauthorized Duplication of Sound Recordings supra note 7 at 15-17.

A RECORDED PERFORMANCE IS CREATIVE AND WITHIN THE COPYRIGHT PROTECTION OF THE CONSTITUTION

The creativity of a performer is difficult to describe through the written word, but it is equally difficult to be ignored when demonstrated. Julie London, in testifying before the Subcommittee on Patents, Trademarks and Copyrights of the Senate Judiciary Committee on April 11, 1967, stated:

...

"Whatever creative talent I have lies in my ability to 'reach' an audience with the way I interpret a song . . . In my own case, I study a song and ask myself what can I do with it that will give it individuality. What sort of mood do I want to create and how shall I create it?"

Mitch Miller, on that same day, in describing creativity said "the performer adds that certain ingredient to a song which creates an emotional reaction in the public which listens to records."

Erich Leinsdorf's statement, describing Bach's music observed:

"For instance, the person who sits at the keyboard instrument, either the harpsichord or the organ, has only the barest indication of what the harmonies ought to be, and the way he fills them in is his own effort, his own creativity." That the recording performer is creative has been acknowledged by the courts, by Congress, by the U.S. Copyright Office and, indeed, even by those who oppose the payment of a performance fee. In the celebrated Waring case the court, while finding that a recorded performance was not protected by the federal copyright law, clearly and unequivocally acknowledged the creative role of the performer. It held:

"Does the performer's interpretation of a musical composition constitute a product of such novel and artistic creation as to invest him with a property right therein? It may be said that the ordinary musician does nothing more than render articulate the silent composition of the author. But it must be clear that such actors, for example, as David Garrick, Mrs. Siddons, Rachel, Booth, Coquelin, Sara Bernhardt, and Sir Henry Irving, or such vocal and instrumental artists as Jenny Lind, Melba Caruso, Paderewski, Kreisler, and Toscanini, by their interpretations, definitely added something to the work of authors and composers which not only gained for themselves enduring fame but enabled them to enjoy financial rewards from the public in recognition of their unique genius; indeed, the large compensation frequently paid to such artists is testimony in itself of the distinctive and creative nature of their performances. The law has never considered it necessary for the establishment of property rights in intellectual or artistic productions that the entire ultimate product should be the work of a single creator; such rights may be acquired by the one who perfects the original work or substantially adds to it in some manner. . . . A musical composition in itself is an incomplete work; the written page evidences only one of the creative acts which are necessary for its enjoyment; it is the performer who must consummate the work by transforming it into sound. If, in so doing, he contributes by his interpretation something of novel intellectual or artistic value, he has undoubtedly participated in the creation of a product in which he is entitled to a right of property, which in no way overlaps or duplicates that of the author in the musical composition. All that need now be decided is that such a property right inheres in the case of those artists who elevate interpretations to the realm of independent works of art." 15

Judge Learned Hand was equally convinced of the contribution made by the performer in the rendition of a musical composition, and had no doubt that a performance or rendition could properly be brought within Congress' powers to grant copyright protection. In the Capitol Records case, he stated:

"I also believe that the performance or rendition of a 'musical composition' is a 'Writing' under Article I, § 8, Cl. 8 of the Constitution separate from, and additional to, the 'composition' itself. It follows that Congress could grant the performer a copyright upon it, provided it was embodied in a physical form capable of being copied. The propriety of this appears, when we reflect that a musical score in ordinary notation does not determine the entire performance, certainly not when it is sung or played on a stringed or wind instrument. Musical notes are composed of a 'fundamental note' with harmonics and overtones which do not appear on the score. There may indeed be instruments-e.g. percussivewhich do not allow any latitude, though I doubt even that; but in the vast number of renditions, the performer has a wide choice, depending upon his gifts, and this makes his rendition pro tanto quite as original a 'composition' as an

15 194 Atl. 631, 634-35 (1937) (citations omitted).

'arrangement' or 'adaptation' of the score itself, which § 1(b) makes copyrightable. Now that it has become possible to capture these contributions of the individual performer upon a physical object that can be made to reproduce them, there should be no doubt that this is within the Copyright Clause of the Constitution." 16

The Copyright Office is equally convinced of the creativity of the record performer and the propriety in granting copyright protection. Barbara Ringer, Assistant Register of Copyrights, in her excellent study of copyright problems regarding sound recordings states:

"It appears settled that the contributions of performing artists to a sound recording constitute an original intellectual creation, and are therefore eligible for common law copyright protection. There are no decisions denying this proposition and it has been strongly reiterated in recent cases."

9917

Abraham Kaminstein, Register of Copyrights, agrees with Miss Ringer. In his testimony before the House of Representatives in 1965 regarding the revision of the copyright law, he stated:

"Let me say plainly there is no doubt in my mind that recording performance represent the 'writings of an author' in the constitutional sense, and are as fully creative and worthy of copyright protection as translations, arrangements. or any other class of derivative works. I also believe that the contributions of the record producers to a great many sound recordings also represent true ‘authorship' and are just as entitled to protection as motion pictures and photographs. No one should be misled by the fact that in these cases the author expresses himself through sounds rather than words, pictures, or movements of the body. There is a great deal of case law in this field, and it is in full support of the principles embodied in section 112." "

18

The House Committee on the Judiciary is also convinced of the propriety of granting copyright protection to performers in sound recordings. Although not at this time willing to grant such protection, the Committee stated:

"The committee believes that the [copyright] bill, in recognizing rights against the unauthorized duplication of sound recordings but in denying rights of public performance, represents the present thinking of other groups on that subject in the United States, and that further expansion of the scope of protection for sound recordings is impracticable. This conclusion in no way disparages the creativity and value of the contributions of performers and record producers to sound recordings, or forecloses the possibility of a full consideration of the question by a future Congress." 19

Indeed, even representatives of the jukebox industry which now uses millions of phonograph records without compensating the performer agree that it is the recording group, the record company and the arrangement which lead to the success of most songs played today in coin-operated phonographs.20

Thus it is generally acknowledged even by those who are profiting from the exploitation without compensation of performers' talent, that a performer's contribution to the final rendition of a musical work is a creative endeavor fully within the meaning of the Constitutional Clause granting copyright protection. It is clear through a long history of judicial decisions and Congressional enactments that the "writings of an author" encompass anything including photographs, statutes, pottery designs, motion pictures, pantomimes and choreographs, produced through the intellectual endeavors of an individual. There is no longer any doubt that the contributions of record performers fall within the purview of the Constitutional provision.

THE NEED OF THE PERFORMING artist for copyRIGHT PROTECTION

During the greater part of the nineteenth century, the work of the performing artist retained an ephemeral and localized character. Towards the beginning

16 Capitol Records, Inc. v. Mercury Records Corp.. 221 F. 2d 657, 664 (2nd Cir. 1955). (dissenting). Judge Hand in his dissent agreed fully with the majority opinion on this point which stated: "There could be no doubt that, under the Constitution, Congress could give to one who performs a public domain musical composition the exclusive right to make and vend phonograph records of that rendition." Id at 660.

17 Ringer, The Unauthorized Duplication of Sound Recordings, supra note 7, at 12.

18 Hearings Before Subcommittee No. 3 of the House Committee on the Judiciary on Copyright Law Revision, 89th Cong., 1st Sess., 1863 (1965).

19 H.R. Rep. No. 83, 90th Cong., 1st Sess. 65 (1967).

29 Statement of Robert E. Nims, before Subcommittee on Patents, Trademarks and Copyrights of Senate Judiciary Committee Mar. 17, 1967: Statement of William Cannon, Hearings before Subcommittee No. 3, of the House Judiciary Committee on Copyright Law Revision, 89th Cong., 1st Sess., 564-66 (1965).

of the present century, the appearance first of the phonograph, later of sound radio and, finally, of television resulted in a continuous development of methods for fixing performances on records, film, and tape for the delayed transmission of sound and images. This development has had two effects: first, performances which had been epheremal or capable of being received only at the time that they were performed became permanently fixed so that they could be preserved and widely reproduced and distributed; second, the range of the performance has been immeasurably increased primarily due to the developments of the broadcasting rather than the recording industries. These developments while making music and performances more available to the public, have resulted in a decline in employment opoprtunities for musicians and other performers.

During the era of the silent film, motion pictures provided openings for musicians. With the advent of the "talkies" these positions no longer existed. Similarly, live performances on radio have been replaced almost completely by recorded music. According to a study made by the U.S. Department of Labor in 1949, it was found that unemployment among broadcasting performers was much more prevalent than among the active population in general. Within the class of performers engaged on a fee basis, complete unemployment averaged as much as 27.3% for actors and 15.6% for singers, while the Unemployment Index of Workers as a whole oscillated at that time between 3.6% and 2.9%." This situation appears to be no better today.

A study published in 1966 by the Twentieth Century Fund had this to say: "Unemployment is one of the most serious and persistent problems of the professional performer. This arises from two main sources: the short seasons of many performing groups and the free-lance nature of many of their working arrangements. We have already discussed the seasonal unemployment problem of many orchestral musicians, actors in regional theaters and some opera and dance companies, where regular employment amounting to little more than half the year is not atypical. Moreover, even when the performing group has a short season it is usually very difficult for the performer to find other professional jobs during the remainder of the year, because each company naturally chooses its weeks of activity during the height of the artistic season and releases the artist precisely during that period when very little performing activity is going on elsewhere.. . . As a result unemployment rates among performers are extremely high."

The United States Department of Labor pessimistically advises young artists to utilize their talents as a hobby rather than as a profession. In its 1966-67 Occupational Outlook Handbook, it well-summarized the prospects facing an aspiring young performer:

"The difficulty of earning a living as a performer is one of the facts young people should bear in mind in considering an artistic career. They should, therefore, consider the possible advantages of making their art a hobby rather than a field of work. Aspiring young artists must usually spend many years in intensive training and practice before they are ready for public performance. A person needs not only great natural talent but also determination, a willingness to work long and hard, and an overwhelming interest in his chosen field."

In regard to musicians and music teachers, the report continues:

"Employment opportunities for performers are expected to increase slightly over the long run. Although the number of civic orchestras in smaller communities has been growing steadily, many of these orchestras provide only part-time employment for musicians who work chiefly as teachers or in other occupations. Moreover, the openings created by the establishment of these orchestras have been more than offset by the decline in opportunities in the theater, radio, motion pictures, and other places, which has resulted, in part, from the greatly increased use of recorded music." 23

We all know of performers who are earning large incomes, and the financial rewards for those who achieve stardom are perhaps as great as in any other profession. However, those who reach the top are few indeed when compared to

21 U.S. Dept. of Labor. "Employment and Unemployment of Radio Artists" Monthly Labor Review, Vol. 68. No. 5 (1949) as reported in International Labor Organization Study. "Rights of Performers in Broadcasting, Television and the Mechanical Reproduction of Sound" Report No. 3, at 8 (1951).

Baumol and Bowen, Performing Arts-The Economic Dilemma, 127 The Twentieth Century Fund (1966).

U.S. Dept. of Labor Bull. No. 1450-56. Employment Outlook in the Performing ArtsActors, Dancers, Musicians, Singers at 1. 9 (1966) (Emphasis supplied).