Mr. BALLARD. This is an amplification of the remarks which I am making here today.

Our position has been articulated by performing musicians for more than 30 years both in this country and at international conferences. But despite the volumes of testimony by scholars and specialists, and the tomes of legal commentaries which have been spoken and written over the last three decades, the selfish opposition to performers' participation in the economic fruits of unauthorized recorded performances remains static, rigid, and adamant. That opposition will more intelligently be judged after an examination of its sources:

First, it comes from the composers and authors societies which so eloquently condemn the jukebox exemption but who apparently would exclude all but themselves from the enjoyment of the fruits of creative economic effort.

Second, in the forefront of the opposition to recognition of performers' rights will also be found the corporate music publishers who syndicate interests in their multi-million-dollar catalogs on Wall Street along with interests in waterworks, electric power and other utilities, while they assault the salutary compulsory license provision of the present law.

Third, next come some phonograph record manufacturers who rush weekly free records to broadcasters and who do not even exercise the right to control and collect for public performance of records in foreign jurisdictions where the law has given them such right— while with solemn unanimity they recite the catechism that they-not the performers should be the sacred custodians of this moral right of performers.

Fourth and last-but by no means the least formidable-are the broadcasters who for almost a half century have built their vast industry on musical performance and huckstering between broadcasts of phonograph records and who today devote 80 percent of their profitable program time to playing free records-a free ride which they are most reluctant to end.

We

We suggest that the performers' claim to long-delayed recognition in the $6 billion copyright industry presents a sharp moral question which these opponents must answer here and now to the satisfaction of the American public and the Congress.

We suggest that the enactment of the copyright law which will give the performing musician a modicum of economic incentive and participation in the profits derived from public performance of records will be an important recognition of public responsibility for the conservation of American talent which now suffers deprivation in the midst of plenty.

We suggest that, in the same spirit with which the Congress wages the war against poverty and strives to open the doors of opportunity to those whom our affluent society has neglected, it should now at long last put an end to the special privilege and immunity which thwarts the efforts of the American performer to live by his God-given talent. This is an electronic world which bears little resemblance at home or abroad to that of 1909 when the patient terrier sat before the talking machine entranced by "His Masters Voice." Now we hear the

voice of the Early Bird satellite-and it is high time for us to forge new legal tools to replace a copyright law made in and for the era of the hand-cranked phonograph.

It is high time for a full and fair congressional reevaluation of the competing participants in the entertainment industry. It is high time to enact a new copyright system which gives creative performers an economic incentive to continue in their chosen profession-always with due regard for the public interest.

Examples abound of similar legislation in other countries and of systems of practical, day-to-day administration of similar rights. Those who would inquire will find a detailed compilation of these laws in study No. 26 prepared by Barbara Ringer for the Senate Subcommittee on Patents, Trademarks, and Copyrights. Those who would approach the question with open heart and mind will find helpful precedents in the successful methods of collection and disbursement of revenues from public performance of records which are actively practiced in Great Britain, in West Germany, in the Scandinavian countries, and in some countries of South America. The problems of accommodating to the reasonable necessities of advertising and publicity of record manufacturers, of establishing a central collecting and disbursing agency, either publicly legislated or privately constituted, of distribution among multiple recipients on a point system, and of many other provocative administrative questions, have been faced and successfully solved not only in these other countries but for many decades by our great performing rights societies in the United States. Most important, the experience of other jurisdictions in which rights in recordings have been recognized and enforced demonstrates that the public has suffered no deprivation of legitimate access to its cultural heritage and its entertainment facilities. This is the kind of law which the performing musicians urge—a law which is long overdue-a law which will democratize the copyright system of this land—a law in the detailed formulation of which we are ready and anxious to participate.

Mr. KASTEN MEIER. Thank you, Mr. Ballard. I assume counsel with you will not testify, but are there to answer questions?

Mr. BALLARD. That is correct.

Mr. KASTEN MEIER. At the present time, when musicians, an orchestra or a band, enter into a contract to make a record, what sort of arrangements do they make with the recording studio? What is the nature of the contract? Do they get a flat fee, or can they or do they share in the number of records sold-some form of royalty-by contract?

Mr. BALLARD. Normally, the type of contract that is entered into is one under which the conditions have been collectively bargained between the American Federation of Musicians and the various recording companies, and it calls for a payment of a fixed scale.

It also calls for payments to the music performance trust fund established by the recording industries, and since December 1964 of a certain percentage for the musician-a percentage royalty. But this does not take into consideration at all, and this is a very important point, the tremendous amount of use of these recordings in the radio and broadcasting industries, and in the jukebox industry, and other

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performances, public performances for profit, from which the musician derives no benefit whatsoever.

Mr. KASTENMEIER. In other words, in addition to the contract negotiated with the recording studio, you would have the musicians or the orchestra collectively be able to pursue a performing right, let's say, as against jukeboxes, or as against radio and television studios who play these records, presumably for profit?

Mr. BALLARD. Yes, we feel that this is a vast field in which the efforts of the musician have been exploited, and while we do not say this should be ceased, should stop, rather, we do say that the musician should derive benefits from the immense profits which are being made by the broadcasting and the jukebox interests, and other people who use our records for public performance for profit from which we derive no benefit whatsoever.

We have never objected, and never will object, to the full use and complete use of recordings for home use.

Mr. KASTEN MEIER. Would you apply this to others who do not share in this arrangement presently, such as musical arrangers and others, other individuals than musicians who contribute in some respect to a final form in which music comes out?

Mr. BALLARD. We do not object to others who contribute substantially, especially to the artistic performance of a recording, in sharing in the profits which are derived as a result of their labors. We do not object to this, and we would say that they, too, should share.

Mr. KASTEN MEIER. Mr. Ballard, did you or your organization in any way participate in the panel or in the panels that led to the revision of copyright proposal? Did you make your views known? Mr. BALLARD. Yes, we did.

Mr. KASTENMEIER. Did you, in the sense of having a representative on the panel, in the sense of trying to influence the final revision to reflect some of your views?

Mr. BALLARD. Well, Mr. Chairman, Mr. Adler was present at those meetings, and I would prefer that he would answer.

Mr. KASTEN MEIER. Yes, Mr. Adler.

Mr. ADLER. Both Mr. Kaiser, who is general counsel, and I, who am New York counsel, appeared before one of the meetings conducted by Mr. Kaminstein's panel. We presented our views, which are substantially those which we present today. Our views apparently did not meet with enthusiastic reception by that group.

Mr. KASTEN MEIER. Historically, how far back do your representations go with respect to the desire to participate in the copyright protection for musicians?

Mr. ADLER. At least 30 years. In various participations and in various appearances, both in court litigation, the famous Waring case, the famous Whiteman case, in representations before the Shotwell committee hearings, and in persistent urgings of the same position with international conferences which Mr. Kaiser has attended, and before this panel and this committee now.

It has been a consistent position which we have maintained for more than 30 years.

Mr. KASTENMEIER. Is it your position that the common law now protects such a performance by common law copyright, such as it may be?

Mr. ADLER. We had felt, up to about a year ago, that there could be development of the principles established in the Capitol Records case, which might establish, although we could not be positive, that the common law would so be declared by the courts. We have misgivings now in view of recent Supreme Court cases in the patent field and the probability of pre-emption of common law copyright, and we certainly see in this bill as now drafted a complete, positive pre-emption of the field, under the guise of one national system.

Mr. KASTENMEIER. Yes; I think this is true. This is what the revision is attempting to do. Do you have any national precedent, that is, within this country, anything whatsoever to suggest that at any time, musicians have been able to get or obtain, let's say, this type of protection, historically, at any time?

Mr. ADLER. Within this country?

Mr. KASTENMEIER. Within this country.

Mr. ADLER. Only through court decisions in the Waring case, I would think.

Mr. KASTENMEIER. The Waring case?

Mr. ADLER. And possibly by derivation from the Capitol Records case. That is Waring v. WDAS, which was a Pennsylvania State Supreme Court decision back in the late 1930's.

Mr. KASTENMEIER. Mr. Ballard, have you attempted during the last 30 years or so, through the process of collective bargaining, to insist upon this right?

Mr. BALLARD. We have attempted, without avail, to get some rights for our members in the broadcasting, the use of records in broadcasting and the use of records in jukeboxes, and our negotiations on a collective bargaining basis have been mostly with the broadcasting industry, and we have not been successful in getting it with them, and also with the people who make electrical transcriptions, but we haven't been able to negotiate. We have tried, also, with the people who make phonograph records, and up to the present time, over the 30-year period, we have been unable to get this, what we feel is a preeminent right of the performer. We have been unable to enforce or to get him to agree to any such thing as this.

Mr. KASTENMEIER. Thank you. Mr. Ballard, we appreciate your testimony, even though this apparently complicates the matter further in terms of revision.

Mr. Edwards?

Mr. EDWARDS. Thank you, Mr. Chairman.

Mr. Ballard, the performers are paid an agreed wage scale for their performances. The earnings or monetary loss of the record companies are generally dependent upon the success of the records. Do you see any difference in the position, therefore, of the performers as contrasted with the record companies and the composers to some extent-whose earnings or profit or loss rise or fall on whether or not the record is a success?

Mr. BALLARD. Well, our thrust here is toward the fact that there is an abuse made of recordings which are being made by our members, and that these recordings are being used without any profit whatsoever to our members, and to a considerable profit to the broadcasting and the jukebox industries. That is what we direct our main thrust toward. Our people have been displaced. We can understand this.

But we fail to understand why they do not derive benefits from the recordings, and the product of their work which these large industries, big industries, billion-dollar industries, use our product and fail to give us any benefit whatsoever. And our opinion is that those who use our records-excluding home use, of course but those who use our records for a commercial purpose, and for their own personal gain, should also share some of the profits which they make with the people who helped them make the profit.

Mr. EDWARDS. You feel that you should have a statutory copyright right. Is that correct?

Mr. BALLARD. We feel that there should be a change in the copyright law which would protect against this abuse, and the abuse to which the musician has been subjected by the greed of the people who exploit our efforts to their own personal gain.

Mr. EDWARDS. Do you have any specific proposals?

Mr. BALLARD. Mr. Kaiser? I would like to have Mr. Kaiser or Mr. Adler answer.

Mr. KAISER. We have nothing written in statutory form. Our proposal is that performers be entitled to a copyright.

Now, may I add to that? In all these 30 years, we have heard no statement by any responsible party denying our entitlement to such under the clear design of the constitutional provision which is the genesis of this very hearing.

Nobody has denied the creative contribution made by the musicians to these records. We have had objections voiced in terms of the administrative difficulty of enforcing that right. Our basic position is that, while we concede that practical problems would stem from a copyright in a group of musicians and performers, they are by no means insurmountable. They have been met in other countries. They can be met here; we certainly have the ingenuity. But because the opposition has been so fierce not on any grounds of principle, but, we are compelled to say, on grounds of greed-because it has created a tremendous smokescreen out of these practical problems, we have never been brought around to the posture of sitting down cooperatively with those others who are clearly entitled to copyright and trying to resolve those administrative problems.

Mr. EDWARDS. Thank you.

That is all, Mr. Chairman.

Mr. KASTENMEIER. Mr. Tenzer?

Mr. TENZER. Thank you, Mr. Chairman.

I don't mind getting this answer from either Mr. Ballard, Mr. Kaiser or Mr. Adler, whichever one of the witnesses chooses to give the answer. I would like the record to place in proper focus, first, some specifics about your organization. While your statement was a very interesting one, it did not go into specifics. And second, I would like to know something more about your membership. When you speak of 270,000 musicians, are all of these performing musicians people who play an instrument in an orchestra?

Mr. BALLARD. Yes; one of the requirements to be a member of the American Federation of Musicians is that you be able to play a musical instrument, and pass an examination as to your proficiency on the instrument.