Mr. TENZER. Then we are talking here about 270,000 performing musicians who play musical instruments, either in solo, or duets, or in a group as background music, or in an orchestra. Mr. BALLARD. That is correct. Mr. TENZER. Thank you. Now we have had here some very interesting illustrations, such as a songwriter's original effort on a sheet of music, which he submits for copyright. A single sheet, with maybe 8 or 10 or 12 bars presenting a theme of a song. And then it is brought to a music publishing company. The first creative artist we deal with is the songwriter or the composer. Then it was described for us how an arranger is called in by the music publishing company. The arranger does not have, unless some special arrangement is made, any participation in that copyright, does he? Mr. BALLARD. No, not to my knowledge. Mr. TENZER. Is that by statute or by common law? Mr. ADLER. Under proper circumstances, an arranger by statute may have a separate right, but it usually melds into the copyright which the publisher is marketing. To amplify the point with something that has been overlooked-many of the arrangements which give style and distinction to a recording are made right on the spot by the members of the American Federation of Musicians. We also represent arrangers, vis-a-vis the recording companies, and it is also for this group of our membership that we, for this group, urge this right. Mr. TENZER. Well, now, are the arrangers part of your 270,000 members? Mr. ADLER. Yes, sir; they are. Mr. BALLARD. Yes, sir. Mr. TENZER. In other words, some of your performing musicians, as defined earlier, are also arrangers? Mr. BALLARD. Almost all arrangers are members of the American Federation of Musicians. Mr. TENZER. Now, when we see a sheet of music on which appears the name of the composer and the name of the arranger, under such an arrangement, does the arranger participate in the benefits of the copyright with the composer? Mr. BALLARD. Normally not, unless he derives his benefits through the publisher. Mr. TENZER. Now, when that song is finally embellished or polished up with the efforts of the arranger, it is then performed by either an orchestra or a singer. Does the singer or the orchestra participate in the benefits of the copyright? Mr. BALLARD. No; and I might say it is rarely, if ever, performed by a singer without an orchestra. Mr. TENZER. Well, they are engaged, are they not, for a fixed fee as compensation for their work in preparing the record to be issued? Mr. BALLARD. Yes. Mr. TENZER. And you are suggesting that in addition to the fee which they receive for the one performance, they have a continuing interest in the sale of that record by participating in the copyright in the form of a performance fee? Mr. BALLARD. Mr. Kaiser? Mr. Adler? Mr. ADLER. If I may just attempt to straighten that out, what we are suggesting is not that they participate by statute in the continued sale of that recording, but that they participate when that recording is used for purposes other than home use; namely, public performance for profit by radio stations, by jukebox operators, et cetera. In the area of home use, we have no objection, because this is the primary, and formerly was the sole, purpose for which phonograph records were made. It has now gotten beyond the power of the record manufacturer to control the unintended uses to which that record is now being put. Neither the record manufacturer nor the musician is in any way compensated for these unauthorized and uncontrolled public performances of the recording for profit. Mr. TENZER. Could you point, Mr. Adler, to the section of the 1909 law under which you now have a right to participate in the benefits from public performance for profit? Mr. ADLER. There is nothing in the 1909 act that permits that participation, Mr. Tenzer, and it is to that hiatus that we are addressing our objection, because the new law perpetuates that lack of protection. Mr. TENZER. Could you point to any section of the proposed revision of the copyright law which modifies or changes that situation? Mr. ADLER. The change is only directed to the right of the phonograph record company to prevent what we call dubbing; namely, the duplication of the record without permission, not to the performance of the record, and in section 112 the right to perform the record is specifically exempted. It says in (c), "This section does not limit or impair the exclusive right to perform publicly, by means of a phonorecord, any of the works specified by section 106(a) (4)," so there is not only an ignoring of the problem as existed in the 1909 act, but an affirmative killing of any right that might exist. Mr. TENZER. Is it your contention that the proposed copyright revision law will take away whatever common law right you may have, through the courts, to enforce this right? Mr. ADLER. That is correct. Mr. TENZER. Are you suggesting that the section cited would bar the right of the performing musician from seeking or endeavoring to obtain some participation in the public performance for profit? Mr. ADLER. That is exactly so. Mr. TENZER. Of a record to which he made a creative contribution. Mr. ADLER. That is right, and that is done by section 301 of the proposed law. Mr. TENZER. Now, do you have a specific recommendation for a language change in the proposed copyright revision law which will take care of your problem and which you would propose to us for consideration? Mr. ADLER. We don't have it with us today, but if the committee would invite that, we would be very happy to submit it. Mr. KASTENMEIER. If I might interrupt at this point, the committee would be very pleased to receive a memorandum or letter from you detailing specifically what language in the proposal you would change, and the text of any amendments you would have to the proposal, so that we could see concretely how your presentation would relate to the proposal. Mr. TENZER. Thank you, Mr. Chairman. As you know, we have had other witnesses representing other branches of both the publishing and music industry who have made proposals, and we would like to have your specific proposal, so that when we are in executive session, we may have them before us, when you will not be there for us to question. Mr. ADLER. Thank you for the invitation. We will be very happy to submit it. Mr. TENZER. Thank you. No further questions, Mr. Chairman. Mr. KASTENMEIER. Mr. Poff? Mr. POFF. Mr. Chairman. As I understand the thrust of your testimony, you would not assert a copyright against a school which used a recording for instructional purposes, because this would not constitute a public performance for profit. Mr. BALLARD. That is correct. Mr. POFF. Similarly you would not assert a right against an ETV station. Mr. BALLARD. That is correct. Mr. POFF. Would you assert a right against a CATV station? Mr. POFF. That is the community antenna television. Mr. BALLARD. Well, that is an organization for profit. Mr. POFF. And you would assert the right? Mr. BALLARD. Yes. Mr. POFF. I am a little unclear about your fourth paragraph on page 3. Would you like to turn to that, please? In reading that paragraph, it would appear that broadcasters are getting a free ride on records which they play, 80 percent of the time. Do I understand by that that on the free records which the broadcaster receives, he is not required to pay any performance fee? Mr. BALLARD. We receive no performance fee. Mr. POFF. That wasn't the question. I say, is it true that he does not pay a performance fee? Mr. BALLARD. Well, he pays performance fees to ASCAP and to BMI. Mr. POFF. That is my question. In other words, when you use the word “free” you have reference to the fact that the musician is uncompensated. Mr. BALLARD. From our viewpoint, he gets a free ride. Mr. POFF. I understand. Thank you. That is all, Mr. Chairman. Mr. KASTEN MEIER. Mr. Hutchinson? Mr. HUTCHINSON. Going back into history, back in the days when any performing artist simply performed before an audience, just one time, this problem of copyrights apparently didn't appear. It is only since the days when they have taped TV shows, and recorded your performances upon records for replaying and resale that the problem has arisen. Is that right? Mr. BALLARD. It goes back quite early, almost to the beginning of the recording industry. Maybe not as far back as 1909, but shortly thereafter the jukebox came into being, in a rather rudimentary form. Mr. HUTCHINSON. Well, you get right to the point of my question. I was wondering about the situation in 1909, and whether at that time there was any effort on behalf of your organization or a predecessor organization to get some recognition in that law then? Mr. BALLARD. Well, as far back as I have any knowledge, the American Federation of Musicians has been trying to get an amendment to the 1909 law which would permit us to get some sort of benefits for the unauthorized use, commercial use, of recordings made by our members. Mr. HUTCHINSON. But you don't have an information as to any effort made at the time that the Congress was considering and enacting the 1909 act. Mr. BALLARD. No; in the very early days of the phonograph record it was fully intended for home use. In the early days it was used for no other purpose. And my recollection of the history of it is that the penny arcade, where you dropped a coin in the slot in order to hear a phonograph record, came after the 1909 act. That is my recollection. Mr. HUTCHINSON. Back in 1909, performing artists, whether they were musicians or dancers, or singers, or any other group of performing atists, back in those days were totally involved in performing just once, before a fixed audience. Mr. BALLARD. That is true. Just the one time. Mr. HUTCHINSON. And so it is fair to assume that at that time your organization had no idea about any copyright for your performance? Mr. BALLARD. That is correct. Mr. HUTCHINSON. That is all. Thank you. Mr. KASTENMEIER. Mr. Cors, do you have any questions? Mr. CORS. No questions. Mr. KASTENMEIER. Counsel ? Mr. FUCHS. Thank you, Mr. Chairman. Mr. Kaiser, you said it was clear that the constitutional provision applied to these musical performances. I would like to read it into the record. Article I, section 8, paragraph 8, reads that Congress shall have the 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. I take it "discoveries" applies to the field of patent law, and you have to come in under "writings." Mr. KAISER. That is right. Mr. FUCHS. And you feel that you do? Mr. KAISER. Indeed we do. Mr. Fuchs, we believe that the thrust of the constitutional provision is specifically addressed to the phenomenon of recording, whether it be in print or in any other form, and as Congressman Hutchinson just pointed out, it became a problem for the performer only as the electronic miracle developed. The fact is, gentlemen-a fact that I am sure you are aware of that throughout the world, the performer has become the most obvious and the most pathetic victim, economically, of this otherwise happy phenomenon. He has been cruelly victimized in his job opportunities. Whereas a great orchestra would once travel around the country and perform for pay before separate live audiences, you can now make a recording of its works which can be played endlessly by commercial exploiters without any compensation to the performers. We are not talking now about home use, as has been several times reiterated. This is a problem acutely confronting musicians and other performers throughout the world. I daresay it is the most poignant problem they have. They have received no relief in our country. Let me go beyond that, gentlemen. Because of the economic and political power of the industries involved, most notably the broadcasting industry, when the American Federation of Musicians tried to resort to traditional means of protecting lucrative employment they were able to persuade the Congress, back in 1947, to pass what is known as the Lea Act under which we may not bring any pressure against any licensee for not hiring live musicians. We have been eliminated from the radio field completely. We have, as the older ones among you will recall, been eliminated from the motion picture theater. We are being eliminated from the nightclubs by the recordings, jukeboxes, discotheques, et cetera. And what we have been confronted with, I repeat, is a problem that is universal; a problem to which several European countries have responded by legislation and a problem to which this country, for reasons that I think do not heighten the glory of our traditions, has been totally insensitive. Mr. KASTENMEIER. If counsel will yield, does 270,000 members, does this represent a diminishing membership? Mr. KAISER. NO. It does not. It does not represent a diminishing membership. But while our membership increases slowly, by no means as dramatically as many other unions, our work content does diminish with alarming rapidity. Mr. FUCHS. Well, I hope, Mr. Kaiser, in your submission, that you will briefly explain to the committee how the performances of your members are embraced in the constitutional term "writings." I do have one other question. I thought that when you responded to Congressman Tenzer, you said that the pre-emption provision of the bill prevented your members from making any claim to participation in the proceeds of commercial performances. Mr. KAISER. You mean as a collective bargaining matter? Mr. Fuchs. It doesn't prevent you from seeking through economic pressure to get Mr. KAISER. Certainly not, but let me make it clear that while we do have economic power in the recording industry, among the record manufacturers, because they still need live musicians to make the first record, our power in the radio industry is nonexistent. It can get along without us by using the product that we have made without legal protection. Mr. FUCHS. Thank you. Mr. KASTENMEIER. Without particularly wanting to forge any deeper into the thicket on this question, I am nonetheless compelled to ask, following what Mr. Fuchs said, as to authorship. There may be a division-I don't know whether you recognize it or not-between what is obviously authorship or creation, and performance of the work. So in music, you may have a distinction between a group or a musician |