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The Performing Musicians' Opposition to the 1965 Bill for General
General Copyright Revision
SUMMARY OF STATEMENT
A The American Federation of Musicians speaking for its 270,000 members and voicing also the position of other performers, be they actors, singers or musicians, opposes the 1965 Bill for general revision of the United States Copyright Law.
1. The Bill denies to American performers any voice in or remuneration for the public profitable performance of records.
2. The Bill perpetuates a long and shameful discrimination against American performers even to the extent of eliminating common law rights under guise of establishing a “single national system.”
3. The false philosophy of the Bill is that it is right for users to use and profit from the recorded product of performers, right for composer-creators and their corporate assignee-publishers to reap rich profit from recorded performances, right for record manufacturers to supply broadcasters with free records without regard to performers' wishes, but somehow wrong for musicians, whose records are broadcast and otherwise played for profit, whose records when broadcast give rise to composers' performance fees, and whose records make up almost the entire program content of radio and the juke box, to be paid something for these unauthorized uses.
B Enactment of a copyright law which will give the performing musician a modicum of economic incentive and participation in the vast profits derived from the public performance of records will be an important recognition of public responsibility for the conservation of American talent-which now suffers economic deprivation in the midst of plenty. In the same spirit with which we wage the war against poverty and strive to open the doors of opportunity to those whom our affluent society has neglected, let us at long last democratize the copyright system of this land, and end the special privilege and immunity which thwarts the effort of the American performer to live by his talents.
C The static, rigid, and adamant opposition to performers' participation in the economic fruits of unauthorized recorded performances should be judged by its sources:
1. Composers and authors societies which so fervently condemn the juke box exemption while excluding anyone but themselves from the enjoyment of creative economic opportunity.
2. Music publishers, participations in whose catalogues are traded on Wall Street along with interests in waterworks, electric power and other utilities, while they press for preservation of their monopoly.
3. Record manufacturers who rush weekly free records to broadcasters, with whom many are affiliated by corporate relationship, and who do not even exercise the right in jurisdictions where the law has given them such right, while they assert that they, not the performers, are the proper custodians of this moral right of the performer.
4. Broadcasters who have built a vast industry on huckstering in the intervals between broadcasts of phonograph records and who today devote 80% of their profitable program time to playing free records.
D The performers' claim to long delayed recognition poses a sharp moral issue which will not disappear because its opponents have thus far in the formulation of the Bill chosen silently to ignore it. Good morals, the Federation suggests, make good laws, and if the moral issue is squarely faced and fairly resolved, the mechanics of implementation can easily be determined as has been done in other countries.
E In an electronic world which bears little resemblance at home or abroad to that of 1909, it is high time to forge new legal tools to replace a copyright law made in and for the era of the hand-cranked talking machine. It is high time to liberate copyright revision from the trades and deals of the conferences. It is high time for a full and fair Congressional revaluation of the competing participants in the six billion dollar copyright industry. It is high time to enact a new system which gives creative performers an economic incentive to continue in their chosen profession-always with due regard for the public interest.
The American Federation of Musicians of the United States and Canada, in behalf of 270,000 members, opposes enactment of the 1965 bill for general revision of the United States copyright law proposed by the Register of Copyrights and now being considered by the Congress."* That proposed law would perpetuate the shameful discrimination which is practised against American performers by continuing to deny them any voice in or remuneration for the public profitable performances of their records. Voicing the common aspiration of all performers, be they actors, singers, or musicians, the Federation proposes that these creative citizens at long last be granted some minimal protection under the copyright laws and a small measure of participation with other creators and with users in the revenues derived from the public and highly profitable exploitation of their recorded performances.
The Opposing Positions
This has been the performing musicians' position for more than thirty years; but despite numerous conferences here and abroad, volumes of testimony by scholars and specialists, and tomes of legal commentaries written over the last three decades, the opposing stands on this issue remain static, rigid, adamant and unaltered.
Performers continue to petition for long overdue redress of the gross inequity in the United States copyright law which gives great economic incentive to composers and their commercial assignees but which obliges performersunless they unconditionally refrain from making records,
*Numbered footnotes are at the end of this statement.
to give a free ride to radio and television broadcasters, to recorded music services, to juke box operators, and to the many other commercial users of their recorded performances.
These commercial users for profit, whose massive in. dustry is built and prospers upon recorded performances -for which they pay not one red cent to the performers —are permitted by custom and usage a patently unfair use which, until now, antiquated laws have silently protected and which the proposed law would affirmatively sanctify for all future time in the name of establishing a "single national system” of copyright.
Authors, composers and publishers societies, which so fulsomely salute the glories of musical creation, continue to deny to performers, who give life, articulation, depth and variety to composers' writings and whose performances create the royalties upon which composers and authors and publishers thrive, a seat at the table where the economic harvest of intellectual effort is shared.4
Phonograph record manufacturers, who so proudly cite the cultural contributions of their product while warding off with apparent success attempts to abolish their special compulsory copyright license privilege, jostle one another in a race to donate their latest record releases to disk jockeys to the end that the artistry of performers may be broadcast for advertising revenues by radio stations, many of which are under common ownership with them, without further payment to those performers.
No Further Study Needed
Further study, it is submitted, will shed no brighter light on the motivations of those who have prospered under the special privilege and immunity granted them in the present law and to be perpetuated by the proposed law. Theirs is a thesis which holds that it is right for users to use and profit from the recorded product of performers, that it is right for composer-creators and their assignee-publishers to reap the benefit of their recorded works, that it is right for record manufacturers to supply broadcasters with free records without regard to the performers' wishes, but that somehow it is wrong for musicians, whose records are broadcast and otherwise played for profit without payment, whose records when so broadcast give rise to composers' performance royalties, and whose records make up almost the entire program content of AM and FM radio and of the juke box, to be paid for their contributions. Certain basic facts, obvious for many years, can no longer be silently ignored. The situation has changed only in the intensity of the deterioration in the performing musicians' economic opportunity while the industry which he serves has prospered vastly.
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The Impact of Musical Automation
The actual and potential impact of the science of sound recording upon the art of professional musicianship is a story many times told. Sound motion pictures, phonograph records, tapes, radio and television broadcasts, and the myriad and increasing applications of sound reproduction devices either have displaced or can displace all but a few musicians from the profession to which their talent, study and devotion have directed them.
In 1927 every movie theatre in the land had its complement of musicians ranging from the pianist or organist in the small theatre to the fully augmented symphony orchestra in the movie palaces of the larger cities. In the span of two brief years, following the introduction of the sound movie in 1928, some 10,000 competent, devoted, professional motion picture house musicians lost their jobs, displaced by