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ADDITIONAL STATEMENTS

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American Broadcasting Companies, Inc...

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American Federation of Musicians,

n of Musicians, American Federation of Television and

Radio Artists and Recording Industry Association of America, Inc..

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The Roper Organization, Inc., A Research Proposal

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PERFORMANCE RIGHTS IN SOUND RECORDINGS

MARCH 29, 1978

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,

AND THE ADMINISTRATION OF JUSTICE

OF THE COMMITTEE ON THE JUDICIARY,

Beverly Hills, Calif.

The subcommittee met, pursuant to notice at 9:30 a.m. in the Royal Suite of the Beverly Hilton Hotel, Beverly Hills, Calif., Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding.

Present: Representatives Kastenmeier, Danielson, Railsback, and Cohen.

Also present: Bruce A. Lehman, counsel, Timothy A. Boggs, professional staff member, and Thomas E. Mooney, associate counsel, and Audrey Marcus committee staff.

Mr. KASTENMEIER. The committee will come to order.

Let me extend a welcome to our witnesses and those of you in the audience this morning on the occasion of this our opening day of hearings on the question of performance rights in sound recordings.

May I say at the outset, that in accordance with House rules without objection photographs or any other pictures may be taken during the course of the hearings.

The subcommittee is very pleased to be here in one of the Nation's centers, along with New York City, of the music, recording industry. These two geographical areas are those most affected, prospectively, by the proposals for a performance right in sound recordings.

With me this morning is the ranking minority member, Tom Railsback, a Member of Congress from Illinois who's been a member of the subcommittee for many years. We're also very pleased to have Congressman Bill Cohen, a member of the Judiciary Committee who formerly served on this subcommittee while we were taking up copyright questions several years ago. Also to be with us shortly is our colleague George Danielson from the Greater Los Angeles area who has offered a legislative proposal for a performance right in sound recordings. I expect him to arrive with us shortly.

Nearly 2 years ago this subcommittee began the process of marking up one of the most complex pieces of legislation in my memory, the Copyright Revision Act of 1976. It had a long prior history. Going back to at least 1962 when this subcommittee suspended the expiration of subsisting copyrights pending the enactment of a general revision bill. In 1965 we had hearings: I chaired those hearings. In 1966 we had markup. In 1967 we passed the bill which only became law ultimately when the Senate and the House were able to get together in common agreement in 1976.

One of the questions or controversies, if you will, that was left unresolved among the many that were resolved, was that of performance rights in sound recordings. And there have been proposals calling for this over the years. Certainly, I remember the proposal way back in 1965. It took somewhat of a different form than the present proposal, but in order to expedite the revision, the general revision in 1976, we specifically put aside that subject and called on the Register of Copyrights, Barbara Ringer, to report back to the Congress, by January 3 of this year so that we might further consider the subject.

The Register has issued a report, but even as January 3 came around it was difficult for her and for all those reporting to her to fully respond as of January 3. As a matter of fact, the Register has not yet been able to testify before this subcommittee on the subject yet. So this, in fact, opens the hearings on the subject. The Register will testify at a later date. However, these hearings in California must be considered the fundamental hearings on the subject in the year 1978. The Register, of course, will testify in Washington, and possibly there could be some supplementary hearings, but that which is testified to this morning will constitute our principal source of information on the subject.

I had hoped to call on George Danielson at this point for a few remarks, and I'm sure when he comes we can perhaps permit him to make the remarks he desires to make on the subject since he is a proposer of a bill on the question. But we do have many witnesses, and in order that we may proceed expeditiously, I would now like to call on our first panel of witnesses. I would urge witnesses generally to be as concise as possible, and in some cases you may have long, extended testimony which is necessary for the record. It may be submitted for the record, but you yourself may orally abbreviate your remarks so that we can get to the nub of the matter without impinging on other witness' time.

This morning I'm very pleased to call on our first panel. The first panel of witnesses include Jack Golodner of the AFL-CIO; Victor Fuentealba, president of the American Federation of Musicians; and Sanford Wolff, American Federation of Radio & Television Artists. Gentlemen, you are most welcome.

TESTIMONY OF JACK GOLODNER, AFL-CIO DEPARTMENT FOR PROFESSIONAL EMPLOYEES, ACCOMPANIED BY VICTOR FUENTEALBA, AMERICAN FEDERATION OF MUSICIANS, AND SANFORD WOLFF, AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS, RAY BROWN, LOU PALANCE, JIM GILSTRAP AND JIM HAAS

Let me call first, as our opening witness, Jack Golodner. Mr. GOLODNER. Thank you. Mr. Chairman. I am the director of the department for professional employees of the AFL-CIO, and as you've indicated I'm joined here this morning by Mr. Victor Fuentealba, president of the American Federation of Musicians and Mr. Sanford Wolff, the executive secretary of AFTRA, the American Federation of Television & Radio Artists. With them, also, Mr. Chairman, are several members of these two unions, and perhaps for the record before I begin my prepared statement it would be wise to have these two gentlemen introduced to the members who are accompanying them for the record.

Mr. KASTENMEIER. Yes, if you would.

Mr. GOLODNER. Yes, Mr. Chairman. To my left is Mr. Ray Brown, and to his left, Mr. Louis Palance, both members of the American Federation of Musicians. At the far right is Mr. Jim Gilstrap, and to his left, Mr. Jim Haas, both active singers here in the Los Angeles

area.

Mr. KASTENMEIER. Thank you.

Mr. GOLODNER. Mr. Chairman, you've described for us the work of your committee for a number of years which culminated in 1976 in the copyright revision. I would like to extend to you and your committee the congratulations of our department and of the AFL-CIO. I don't think too many people realize the extent of the work that had to go into that. That was our Nation's first revision of the copyright laws since 1929. I'm talking about a complete overhaul. It was a great job, and you did a great public service. We wish to recognize it.

I appear here today to register the support of the department for professional employees and of the AFL-CIO itself for the principle of copyright protection for the public performance of sound recordings. I know that the AFL-CIÓ needs no introduction, but perhaps the department for professional employees does.

Our department comprises 26 national and international unions which represent approximately 1.5 million people employed in every major professional field. I appended to my statement a list of those 26 international organizations.

Mr. KASTENMEIER. Without objections, Mr. Golodner, the appendixes will be made a part of the record.

Mr. GOLODNER. Thank you, Mr. Chairman.

The department is the largest interdisciplinary organization of professional people in the country. Among these people are engineers and teachers, nurses and doctors, social workers and pharmacists as well as actors, singers, dancers, and musicians.

With regard to the issue before this subcommittee, our department must be, and is, concerned with the interests of both the creator of recorded works and those who enjoy them. We perceive these interests as being wholly compatible. And so did the authors of our Constitution. They knew that in order for the Nation to benefit from the talents of its inventors, authors and artists, these creative, unique people must be encouraged and assured of a just reward for their efforts.

The Bible, after all, warns us not to "muzzle the ox that treadeth out the corn," (I Timothy 5.18) and our forefathers knew their Bible. Perhaps because we are no longer an agrarian society, the meaning of this quotation has not been lost, at least insofar as the arts are concerned. We seem to have forgotten that it is the artists, not the machines, that are ultimately responsible for the benefits we derive from the lively arts and, having forgotten, in various ways we muzzled them.

For years, jukebox operations were regarded by Congress as an infant industry requiring encouragement and exemption from copy

right law. The needs of composers and musicians were ignored while the infant was nurtured. In time, tens of thousands of musicians lost their jobs in restaurants, cabarets, dancehalls, and countless other sites. Then, as technology perfected both broadcasting and the sound recording, the two were linked.

When America's musicians pointed out that the unlimited use of sound recordings in broadcasting would destroy opportunities for thousands of talented artists, the industry cried for special protection, and Congress complied with the infamous Lea Act which imposes criminal penalties on artists who would dare question the use of sound recordings on the air through the collective bargaining process.

Within a few years, every station in the country, granted monopolistic conditions by government and special dispensation from our laws, dispensed with live music. Again, thousands of musicians and singers became unemployed. The pool of creativity in America was diminished, and the potential of America's cultural contribution to the world somewhat lessened. After more than a half century catering to the concerns of those who exploit recorded performances, the time is overdue for our government to attend to the needs of those who create these performances.

It, today, is the performing artist who comes before Congress and asks not for special protection or consideration, but only for what is just, fair, and equitable.

The performers' plea is just because it asks simply that Congress give to them some of the rights it has already granted to other creative people and for the same reasons. The Congress and the courts have determined that a sound recording is a "writing" and copyrightable under the Constitution. Who, then, we ask is the author of this right? This committee has received innumerable testimonials by experts-illustrious conductors, musicologists, the Register of Copyrights, the Chairman of the National Endowment for the Arts, even representatives of the broadcasting industry-attesting to the fact that the performer's contribution to the recording demonstrates a uniqueness, originality, and creativity of the kind protected under the copyright clause of the Constitution.

As Judge Learned Hand noted in 1955:

"*** the performer has a wide choice depending upon his gifts, and this makes his rendition pro tanto quite as original a composition as an arrangement or adaptation of the score itself (which is copyrightable). Now that it has become possible to capture these contributions of the individual performer upon a physical object that can be made to reproduce them, there should be no doubt that this is within the Copyright Clause of the Constitution. (Capitol Records, Inc. v. Mercury Records, Corp, 1955)

Along with the composer, the lyricist, the arranger, the performer is an author. He's an author of that performance. It is unjust, therefore, that the latter is denied benefits that are enjoyed by the former. It makes no sense in art or law to continue this patent discrimination. Similarly, it is unjust that the sound recording is singled out as the only subject for copyright that is not protected by a performance right today. This inconsistency in our laws serves only one purpose: To protect the avarice of those who exploit sound recordings by denying the authors of the recorded performance just treatment. The plea of the American performing artist is a fair one.

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