broadcasting and films. The ASCAP Story, Special Supplement, New York Times, February 16, 1964, Section 11.

4. B.M.I.'s President, explaining the recent drive by B.M.I. to increase composer's fees, has also stated, "Underlying all of this is the issue of basic morality. If the Beatles take out $150,000, the fellow who wrote the music should take out a proportionate share. This rate increase applies to musical and variety attractions where music is the main feature." New York Times, September 12, 1964, p. 15.

5. The Record Industry Association of America, which represents producers of 80% of the phonograph records made in the United States, has hailed the contributions of recorded performances to the study of music, history, anthropology, and to international relations: "And after love of music has been instilled, it is obviously nurtured most economically and conveniently by recordings, since only a few of the population of this country find concerts readily available. Records are no longer luxuries. They are necessities, and their production should be encouraged." Statement of Record Industry Associa tion of America In Support Of The Repeal of The Federal Excise Tax on Phonograph Records, January, 1964, p. 3; see also Statement of Record Industry Association of America, Inc. In Opposition To The Recommendation of The Register of Copyrights that the Compulsory License For the Recording of Music Be Eliminated From the Copyright Act, October 7, 1963.

6. Record producers in 1963 were donating free records to radio stations at the rate of almost 70 single records and 35 albums per station per month according to Billboard, April 6, 1963, pp. 3540, which surveyed radio broadcasters' musical programing practices.

7. In 1940, after almost three years of study, conferences and reports, in which representatives of all interested parties participated, the so-called Shotwell Committee omitted recognition of performers' rights from a proposed revised Copyright Law (§3043, 76th Cong. 3d Sess., 1940) because “... thought has not yet become crystallized on the subject... and no way could be found at the present time for reconciling the serious conflicts of interest arising in this field." (86 Cong. Rec. 63, 74).

In 1961, twenty-one years later, the Register of Copyrights, presenting his report on general revision of the copyright law to Congress, after several years of study, stated that

66

there are many complex issues that have not yet crystallized sufficiently for us to make detailed recommendations at this time" as to whether rights should be given to the performer, the record producer, or to both, the scope and duration of such rights, if any, and the formalities of registration. Therefore, concluded the Register, "sound recordations should be protected against unauthorized duplication under copyright principles, but detailed recommendations are being deferred pending further study." (Report of the Register of Copyrights, n. 1 above, p. 18.)

The results of that study are to be found in §112 of the proposed law. Record manufacturers are given the exclusive right "to duplicate the sound recording in the form of phonorecords." The "right to performance" of a phonograph record is specifically denied to all. Thus free and unregulated performance for profit is perpetrated.

8. This apparently is the current position of phonograph record producers with few but notable exceptions (cf. Statement of Sidney A. Diamond to Panel of Experts, Register of Copyrights, February 11, 1963). Yet, in April, 1936, RCA Manufacturing Co., Inc., Brunswick Record Corp., and Columbia Phonograph Company, Inc., to the contrary, urged upon the Congress "that all of the ills of the performing artists arising out of the misuse of phonograph records . . . are also suffered by the phonograph record manufacturers, and all of them could be cured by including in the Copyright Law a provision extending copyright to phonograph records." [See Memorandum, April, 1936, submitted by the above-named companies to House Committee on Patents then considering the Duffy Bill (§3047), the Sirovich Bill (H.R. 11420) and the Daly Bill (H.R. 10632)].

In 1939, Columbia Recording Corporation, Decca Records, Inc., and RCA Manufacturing Company, Inc., the three leading manufacturers then in the field, submitted a memorandum to the Shotwell Committee stating that ". . . the record manufacturer, alone among the creators and users of copyrighted works, is stripped of every vestige of legal protection under the proposed bill and has no right except the right to pay whatever the copyright proprietor of the works recorded desires to exact. The foregoing unconscionable situation, unsupportable by any consideration of logic or equity, results from the fact that every other group represented at the copyright conference has found it convenient to compromise differences not at the expense of said groups but at the expense of phonograph record manufacturers. The end result, we sincerely believe, is a bill which this Committee, with its high standing and eminent

sponsorship, has a definite duty to disapprove or correct." The 1939 memorandum of the record producers then stated: "Phonograph records are produced and marketed primarily for use in the home and for educational purposes. For many years they have also been used extensively on coin-operated phonographs. In recent years, however, the use of records for broadcasting purposes, by theatres, on sound truck, in hotels, and in many other public places has developed and increased to such an extent as to create a serious situation which, if not soon corrected, threatens to ruin the phonograph record industry. . . "[T]he activities of radio broadcasters constitute the greatest threat to the phonograph record industry. . . The broadcasting stations purchase records at . . . nominal prices and use them repeatedly in commercial as well as in sustaining programs. Almost every broadcasting station is guilty of this practice. . . From the early morning programs which intersperse commercial announcements with phonograph records to the late evening programs which are frequently made up of records played at the request of the listeners, radio, day in and day out, is utilizing the product of the phonograph record companies, for its own profit and to the great injury of the record industry. . . In failing to remedy this situation, the Committee's proposed bill becomes an infringer's bill, for it gives carte blanche to innumerable commercial interests to continue with impunity their use of the phonograph record manufacturer's product. "The opposition of the American Federation of Musicians," the recorders' 1939 presentation continued, "is based upon the belief that there should be a property right in recordings but that such property right should exist not for the benefit of the manufacturer but for the benefit of the union musicians who are employed in the making of records. Such viewpoint, although honestly held by the representatives of labor, would appear to be not in its own best interests... [C]ertainly the interests of labor would best be served if there were a property right in records and if the use of records for improper purposes were subject to control rather than . . . freely permitted without the possibility of effective action by anyone contributing to the creation of the product."

Compare these phonograph producers' statements of 1939 with the current practices outlined in note 6 above.

9. Effects of Technological Changes Upon Employment in the Amusement Industry, Monthly Labor Review, August, 1931, pp. 261-267; Effects of Technological Changes Upon Employment in Motion Picture Theatres in Washington, D. C., Monthly Labor Review, November, 1931, pp. 1005-1008.

10. A new Gallic name for an old bistro which, having dismissed its live musicians, now plays phonograph records in the dark for patrons who sometimes pay a minimum charge of $4, and $1.60 per drink. See Discotheques Vitalize Cafes, Variety, February 3, 1965.

11. Billboard, April 6, 1963, p. 35: "Specifically, 53.2 hours per week of the average weekly on-the-air time of 113.2 hours in 1953 were devoted to records. Currently, 97.8 hours per average broadcast week of 122 hours is accounted for by a spinning turntable . . . Record programming does not involve the cost facts of the live show no matter how simple, nor does it require rehearsal time. It can be done effectively with not more than a disk jockey, an engineer and a turntable. Yet, it has been found to have the broadest kind of commercial appeal." 12. From a survey taken by the A.F.M. in 1960.

13. Variety, March 18, 1964, p. 1. "The take keeps doubling every few years with the regularity of a sound investment."

14. Billboard, June 8, 1963, p. 1.

15. Variety, February 3, 1965. Phonograph record retail sales increased from $105,600,000 in 1921, to $203,700,000 in 1948, to $378,000,000 in 1958, to $570,250,000 in 1962 according to the Record Industry Association of America.

16. Employment Outlook in the Performing Arts, 1963-64 Occupational Outlook Handbook, Bulletin No. 1375-36, U.S. Department of Labor (1963). The following excerpts from this official government publication are particularly enlightening:

"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."

"As a field of employment, instrumental music has been overcrowded for many years, and it is expected to remain so throughout the 1960's. Opportunities for concerts and recitals are not numerous enough to provide adequate employment for all the pianists, violinists, and other instrumentalists qualified as concert artists... Though many opportunities for single and short-term engagements playing popular music in night clubs, theatres and other places can be expected, the supply of qualified musicians seeking such jobs is likely to remain greater than the demand...

"Performers may have relatively long periods of unemployment between jobs and, thus, the overall level of their earnings is generally lower than that in many other occupations."

The Performing Arts-Problems and Prospects (McGraw-Hill, 1965); "A tremendous expansion has taken place in the arts in this country in the past two decades. . . Next to this glowing picture must be placed another one: Almost all this expansion is amateur. The American people may have experienced an extraordinary awakening in the performing arts, but comparatively few are ever exposed to any live professional presentations..." (pp. 13, 14)

"Poverty for the Professional. Most performing artists are poorly paid, a fact dramatically documented in the congressional hearings in 1961 and 1962 on economic conditions in the performing arts. The miserable income of the majority reflects both a shortage of jobs and the brief duration of employment that is available. In all except the small handful of our major and metropolitan orchestras, the musicians earn an average of only a few hundred dollars a year from their professional labors...

"In addition to low income, short seasons, and the general scarcity of employment opportunities, the performing artists -and the musician in particular must often meet out of his salary heavy costs for travel, equipment and instruments, agent's fees, lessons, and other professional expenses. He often finds himself ineligible for social security and unemployment insurance benefits. Far too many artists must still rely for the major portion of their income on employment not connected with the arts. Quality of performance is inevitably subjected to severe strains as a result of this vicious circle of inadequate pay and limited opportunity." (p. 17)

See Schonberg, Vanishing Audience, N. Y. Times, November 1, 1964, and Billboard, February 6, 1965, p. 6 expressing the concern that even live concerts of more serious music will be displaced by recorded broadcasts.

17. Billboard, September 12, 1964, p. 1, reporting the acquisition of Mills Music by Utilities & Industries Corporation: "Spinoffs and diversifications may well become the new Tin Pan Alley phrase" states the report of the transaction which "marks a major step into the music publishing field by outside financial interests and has renewed trade speculation of further Wall Street acquisition of several other publishing firms." See also A Share of Star Dust on Wall St., N. Y. Times, February 26, 1965, p. 37: "Tin Pan Alley and Wall Street, as far apart for some New Yorkers as the Bronx and Staten Island, are coming to a meeting of the minds."

18. Variety, January 6, 1965, p. 183, $6,000,000,000 At Stake For "Copyright Industry.”