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EXHIBITI

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

NEW JERSEY

Civil Action File No. 977-64

SUMMONS

BROADCAST MUSIC, INC., ARC MUSIC CORP., NORTHERN Songs, LTD., ROBERT

MELLIN, INC., PROGRESSIVE MUSIC PUBLISHING CO., INC., BILLACE MUSIC CO., VENICE MUSIC CORP., LUDIX PUBLISHING CO., INC., AND RAY MAXWELL MUSIC Pub. Co., PLAINTIFF, v. WARHI REALTY COMPANY, INC., A CORPORATION OF THE STATE OF NEW JERSEY AND THE CITY OF ATLANTIC CITY, A MUNICIPAL CORPO

RATION OF THE STATE OF NEW JERSEY, DEFENDANTS To the above-named Defendants :

You are hereby summoned and required to serve upon Lloyd, Horn, Megargee & Steedle, plaintiff's attorneys, whose address is 1421 Atlantic Avenue, Atlantic City, N.J., an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint,

MICHAEL KELLER, Jr.,

Clerk of Couit. LOUIS A. GIORGI,

Deputy Clerk. [SEAL OF COURT] Date: October 27, 1964.

Note.—This summons is issued pursuant to Rule 4 of the Federal Rules of Civil Procedure.

EXHIBIT J

AS AND FOR A THIRD CLAIM

24. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 5, inclusive, of this complaint.

25. Prior to the 25th day of June 1964, John Lennon and Paul McCartney, who then were and ever since have been citizens of England, originated, created, wrote, and composed an original musical composition entitled "A Hard Day's Night."

26. Said musical composition contains a large amount of material wholly original and is copyrightable subject matter under the laws of the United States.

27. Between the 25th day of June 1964, and the 13th day of July 1964, plaintiff Northern Songs, Ltd., complied in all respects with Title 17, U.S.C., and all other laws governing copyright and secured the exclusive rights and privileges in and to the copyright of said musical composition and received from the Register of Copyrights a certificate of registration, identified as follows: Class Ef, No. 29204.

28. Since June 25, 1964, all copies of said musical composition published by plaintiff Northern Songs, Ltd., or under its authority or

EXHIBIT K
LONG BEACH AUDITORIUM, ARENA & STADIUM,

Long Beach, Calif., November 12, 1964.
Mr. GEORGE HAMID, Jr.,
Atlantic City Steel Pier,
Atlantic City, N.J.

DEAR GEORGE: I read your letters in Amusement Business and felt that I should advise you that BMI has threatened suit against World Wide Attractions, Inc., of Los Angeles, which is Hal Zeiger's promotion corporation, and the Long Beach Arena, for the appearance of the Ray Charles Orchestra in the arena last September.

Being a municipal operation, we turned all our correspondence over to our city attorney. As of this writing, we have received no further correspondence from the Los Angeles BMI office.

BMI likewise contacted the Community Concert Association of Long Beach, regarding the payment of the 1-percent fee for Mantovani's orchestra which played here as a part of the association's subscription series. As I understand, this was turned back by the local association to Columbia Artists Management for disposition. However, I ha heard nothing more on this.

According to the BMI representative who talked to us originally, the collection of the fee was a decision made by the new president of BMI. I advised him verbally that if such a course were undertaken with all promoters, that BMI would be a party to putting concerts out of business, as many promoters would be happy to make 1 percent on some of their promotions. Having been the assistant manager at the National Dairy Cattle Congress, under Mr. Estel for some 10 years, I can see how this will have a very direct effect on the National Association of Fair Managers, and I assume that Frank Kingman would certainly have this on his agenda at the annual meeting this December.

I am alerting the executive secretary of the International Association of Auditorium Managers regarding this situation and am sure that it will be discussed at our convention which will be held next July, Sincerely,

Win F. HANSSEN, Manager.

EXHIBIT L

U.S. DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Civil Action No. 97764

BROADCAST MUSIC, INC., ET AL., PLAINTIFFS, vs. WARHI REALTY Co., INC., ET AL.,

DEFENDANTS

STIPULATION AND ORDER EXTENDING TIME WITHIN WHICH TO

ANSWER

Subject to approval of the U.S. District Court for the District of New Jersey It Is HEREBY STIPULATED by and between the parties hereto that the time within which the defendants may answer or otherwise plead be and same is hereby extended to December 19, 1964.

LLOYD, HORN, MEGARGEE & STEEDLE,

Attorneys for Plaintiffs.
By LEONARD C. HORN,

A Member of the Firm.
SAMUEL KALIKMAN,
Attorney for Defendant, Warhi Realty Co., Inc.

It Is So ORDERED this — day of November, 1964.

Chief Judge, U.S. District Court.

EXHIBIT M

MATTERS FOR CONSIDERATION BY BMI IN ITS LICENSING POLICY IN THE

ENTERTAINMENT RISK FIELD

In current and future music licensing negotiations, it is imperative that BMI treat the risk-taking operator, who is engaged in the sale of entertainment, on a ticket purchase basis, in an entirely different manner from its treatment of entrepreneurs who are in more advantageous situations. For example:

In the consideration of music licensing negotiations and ultimate format, it is imperative that BMI treat the risk-taking operator, who is directly engaged in the entertainment business, for profit, in an entirely different manner than those entrepreneurs in the entertainment world who are in more advantageous positions. For example :

A. The radio and TV business sells advertising time to vast commercial financial empires. The programing is simply bait. Entertainment itself is actually given away.

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B. The casino operator in Las Vegas is in reality merchandising food, drink and gambling. The entertainment is only a lure to attract numbers of people into the establishment for other revenue producing purposes.

C. The hotel operator in Miami uses entertainment simply to sell rooms, food, drink and publicize his premises.

D. Even the cabaret operator rarely charges a cover. His entertainment is the device by which he sells food and drink.

E. The college concert is staged to a ready-made audience with no rent, virtually no advertising cost, no ticket selling cost and most important of allno chance of loss. Even on the rare occasions where a concert does not

meet its cost, the university has a fund that can be drawn against. Contrast this with the operator who is engaged in the business of actually staging and selling entertainment from which he must attempt to make his livelihood.

A. He depends almost solely on the revenue that ticket sales bring for his revenue.

B. From this income he must pay the entertainers prices which are not consistent with those paid in the pre-Las Vegas and pretelevision days. Today the name artist who can draw enough people to make it worthwhile demands from 50 percent to 70 percent of the gross ticket sales.

C. He must advertise and promote in a competitive market.

D. He must pay for the cost of tickets and the cost of selling tickets, almost always using a union ticket box.

E. He must pay rent.

F. He must pay all costs within the building, including union stagehands and very often union standby musicians.

G. His chance of profit is questionable. Countless such operators have gone out of business. A simple budget on a 60-percent attraction in a major city grossing $10,000 would be as follows: The artist

$6,000 Rent_

1. 000 Advertising---

1, 000 Tickets and hall costs

1, 200 Profit--

800 If this operator had to pay 1 percent of the gross for music rights, he would actually be paying 1242 percent of his profit. At an $8,000 gross, such an operator would find it hard to break even.

H. Such an operator is in the business of selling entertainment and producing it. He takes an enormous risk of losing money as often as he makes

it.
The questions then which should, in all fairness, be asked are:

1. Is the operator in the business of selling entertainment?
2. Does he pay normal business expenses as outlined in item G above?
3. Does he run the risk of financial loss?
4. Does he have a readymade market?

5. Does he have substantial auxiliary income of which the entertainment is only a part? 6. Can the operator pass on his extra costs to

(a) Advertisers?
(6) Gambling patrons ?

(c) Hotel patrons ? Examination of these criteria should indicate the very clear cut need for special consideration for the profit and/or loss true entertainment operator.

EXHIBIT N

AGREEMENT between AMERICAN SOCIETY OF COMPOSERS, AUTHORS, AND PUBLISHERS (hereinafter styled "Society'), and ABEL HOLDING CO., Inc. (hereinafter styled “Licensee"), as follows:

1. Society grants and Licensee accepts for a period of one performance August 30, 1964, a license to publicly perform at Beatles Concert, Convention Hall, Atlantic City, New Jersey, 08401, and not elsewhere, non-dramatic renditions of the separate musical compositions copyrighted by members of the Society.

2. This license is not assignable nor transferable by operation of law, devolution or otherwise, and is limited strictly to the Licensee and to the premises above named. The license fee herein provided to be paid is based upon the performance of such non-dramatic renditions for the entertainment solely of such persons as may be physically present on or in the premises described, and does not authorize the broadcasting or telecasting or transmission by wire or otherwise, of such performances or renditions to persons outside of such premises, and the same is hereby strictly prohibited unless consent of the Society in writing first be had.

3. This license shall not extend to or be deemed to include: (a) Oratorios, choral, operatic or dramatico-musical works (including plays with music, revues and ballets) in their entirety, or songs or other excerpts from operas or musical plays accompanied either by words, pantomime, dance, or visual representation of the work from which the music is taken; but fragments or instrumental selections from such works may be instrumentally rendered without words, dialogue, costume, accompanying dramatic action or scenic accessory, and unaccompanied by any stage action or visual representation (by motion picture or otherwise) of the work of which such music forms a part.

(b) Any work (or part thereof) whereof the stage presentation and singing rights are reserved.

4. Society reserves the right at any time to withdraw from its repertory and from operation of this license, any musical work, and upon any such with. drawal Licensee may immediately cancel this agreement. Either party to this agreement may, at any time, upon giving to the other party thirty days' prior notice in writing, by registered United States mail, terminate this agreement. Upon the termination of this agreement pursuant to any provision of this article "{" there shall be made to the Licensee a pro rata refund of any unearned license fees.

5. Licensee agrees, upon demand in writing of the Society, upon forms supplied by Society, whenever requested, to furnish a list of all music rendered at the premises hereby licensed, showing the title of each composition, and the publisher thereof.

6. Upon any breach or default of any term or condition herein contained, Society may, upon notice in writing cancel this license, and in event of such cancellation shall refund to Licensee any unearned fees paid in advance.

Licensee agrees to pay Society for the license herein the sum of seventy-five and no/100 dollars ($75.00), payable in advance.

This rate is conditioned and predicated upon the operating policy set forth on the reverse side hereof and such operating policy shall be deemed to be incorporated in and a part of the within agreement.

IN WITNESS WHEREOF, this agreement has been duly subscribed and sealed by Society and Licensee this 1st day of December, 1964.

AMERICAN SOCIETY OF COMPOSERS, AUTHORS, AND PUBLISHERS,
By

ABEL HOLDING CO., INC.-BEATLES CONCERT, CONVENTION HALL,

LICENSEE,
By-

DECEMBER 7, 1964.

EXHIBIT O
Mr. A. L. KANE,
ASCAP,
Newark, N.J.

DEAR MR. KANE: As you undoubtedly know, we are not in the concert business and therefore are not seeking to negotiate a concert agreement.

There has been a lot of confusion over the Beatles' performances throughout the country. BMI has sent us a list of the numbers played at the concert which they claim were theirs. I have no indication that any ASCAP tunes were used. The 20-odd songs listed by BMI constitutes what I remember to be, the program.

If they used any ASCAP tunes I would appreciate your listing them for me so that I can make comparisons. I am sure you would not want payment for a concert without a clarification.

I fully hope that an amicable settlement will be accomplished and would appreciate further information. Very truly yours,

ATLANTIO CITY STEEL PIER,
GEORGE A. HAMID, Jr.

Mr. Sr. ONGE. Thank you, Mr. Hamid.

Do you have any specific recommendations in the form of amendments to the bill that the committee is holding hearings on, H.R. 4347?

Mr. HAMID. Mr. Chairman, I don't have any specific recommendations. The only portion of the bill that places us in this terrible position is the statutory option of the copyright owners. I am talking about the people who have all the copyrights that we have to be licensed to present in order to operate.

If they had an option to sue us for damages based on what is customary in the field or what is customary in the field related to what they would like to raise it to, or what is customary in the field trebled, even, we would have a position in which we could negotiate. We have no negotiating position.

Mr. Sr. ONGE. But since ASCAP and BMI are operating under consent decrees from the Federal courts, wouldn't you have a remedy there?

Mr. HAMID. I am not sure. I have been told that BMI is not yet under the consent decree, and that ASCAP is under the consent decree, but this is a tremendously difficult task. They have batteries of attorneys. For example, in the case that we had, we were asked to pay $600. Subsequently, we were sued for almost $4,000. I paid over $1,200 in the case just to talk to a few lawyers and to have it settled. And to try and go in under the consent decree is dangerous because while we are doing so we are continuing to infringe since we have no license. Not only are we infringing, we are willfully infringing; we are facing a jail sentence. Thus unless we sign we are infringing. If we do sign, we can't go into the court under the consent decree.

Mr. St. ONGE. Mr. Poff ?

Mr. POFF. Do I understand, then, that you are opposed to the option of compulsory statutory damage and not so much to the amount of that damage?

Mr. HAMID. I am opposed to the option because it gives them the right to call for such an amount. That amount perhaps might not be onerous to a multimillion-dollar music user, but to the little man, the option of suing a man for $4,000 when they only wanted $600 in the first place and had only been collecting $25 before that makes us defenseless. To begin with, we could not win a lawsuit under any circumstance.

Mr. Poff. In other words, you are saying that you have no bargaining power with BMI and ASČAP.

Mr. HAMID. None whatsoever. If BMI writes me tomorrow morning and says, "We revoke the letter of consent dated April 7,” from that moment on I am a willful infringer and I have no way of saving my business. The same applies to Glen Echo Park, right here, Riverside Park in Chicago, Disneyland. Well, of course, Disney could perhaps be able to afford a legal fight, but the rest of us can't.

Mr. Poff. I have no further questions.
Mr. Sr. ONGE. Mr. Edwards?
Mr. EDWARDS. No questions.
Mr. Sr. ONGE. Mr. Tenzer.

Mr. TENZER. Just to get the record straight on this instance that you brought to the attention of this committee, of your own experience wih these two agencies, let me ask you how many seats would you have in the Steel Pier? How many seats for that concert?

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