acceptance by the public. meeting with First, since songwriters are not hired to do their job, they must find work to support themselves and their families while they are attempting to create their music. After they have put words and notes together in a way that they think may have a chance, they have to find a publisher willing to publish it. Then they must find an artist willing to perform it. Then they need to convince a record company to record it. must hope a radio station will broadcast it and that Then they businesses like restaurants and taverns and retail stores will use it to attract and entertain their customers. All these obstacles must be overcome before songwriters can make a living. If my songs are successful, businesses are using them all across the country using them to enhance their appeal to the public and make money from them. When my songs are used by a radio station in Oregon, or a restaurant in Illinois, or a hotel in New Hampshire, it is because they think that music will help their businesses. Oliver Wendell Holmes said it well 80 years ago "if music did not pay, it would be given up." - Payment for the use of my musical property is the only thing that enables me to stay in my profession. And I have always believed that payment for the use of property is the core concept of our country's economic system. There is no way that As I told you, I live in Nashville. I, or any songwriter, can individually know if those businesses all across the country are using our music, no way we can individually contact them all, and no way we can individually collect fair payment for their use of our property. There's also no way that I can deal on a level playing field with these powerful businesses restaurants or broadcasters that are represented by various associations before you. That's why songwriters like chain - like Victor Herbert and John Philip Sousa together with their organizations, we can find uses of our music, license them at a fair fee, and, if the user refuses to comply with the law, protect our rights in our property. The royalties songwriters like me earn from ASCAP form the largest single source of our income. Without those royalties, I and my colleagues would have to do something else and we wouldn't be able to create America's music. Yet what sort of burden do these payments for my property place on its users? The average cost to a restaurant for the right to use my music and the music of all my fellow members of ASCAP is $1.58 a day. Indeed, 80% of ASCAP's licensees pay less than a $1.10 a day. Some burden! You can imagine that I therefore get pretty hot under the collar when I hear music users say that there's something unfair about the system. What, exactly? Surely it can't be the price. $1.58 a day is less than the cost of a drink! Surely it can't be that ASCAP must allow anyone who requests a license to use my property even if they don't agree with the price. Surely it can't be that ASCAP must treat similar users alike. Surely it can't be that in a legal dispute over price ASCAP, not the user of my property, must prove its fee is reasonable. Surely it can't be the fact that the amount the music users in the United States pay to perform the world's most popular music is practically at the bottom of the scale among developed countries. The fact is that there is nothing unfair about this system unless it be that songwriters are at an enormous disadvantage in comparison to the users of their music. As ASCAP's illustrious, late president Morton Gould put it: "I never met a music user who thought he was paying too little for music, nor a music creator who thought he was earning too much." They pay lip service to the notion that creators like me should be paid for the use of the property we have created, but what they really want to do is pay less and less and less, or, if they think they can get away with it, nothing at all. That's an outrage, and you should be as outraged about it as I am. Now let's look at the particular gripes of the people who are seeking to tilt the playing field in their favor through the pending bills. Please remember that I'm a songwriter, not a lawyer and not one of the business people who operate ASCAP on my behalf. I can't tell you the legal niceties, or the operational details, but I do know unfairness when I see it, and that's what I want to talk to you about. The restaurant Owners behind the pending unfair legislation started by saying that they wanted a complete exemption if they got music from radio broadcasts, and used it to enhance the atmosphere of their places. First, they said my music was just "incidental" to their business. Well, let me say there isn't a songwriter alive who wakes up in the morning thinking "today I'll write some incidental music that no one wants to pay for." Go into any restaurant or tavern and you'll see parsley on plates, pictures on walls, peanuts on bars, rugs on the floor, tablecloths on the tables. All are incidental to the meal. All are paid for. And just as they are paid for, music must be paid for. Of course, if the music is so incidental to the meal that it is meaningless, the restaurant or tavern owner can save that $1.58 a day by turning it off. His customers can then eat and drink in silence. At that point, they can determine just how "incidental" the music is to their business. Then they said that the radio station had already paid was using radio broadcasts in the same way that he would use live musicians, to entertain the customers. less to do it that way. Only it costs him Then they said that the existing law, which exempted music use by home-style apparatus, was too vague and led to too much litigation. That we agreed with. So we said (as did the bipartisan leadership of the Intellectual Property Subcommittee), let's sit down together and work something out. We made market place offers to expand the "home-style" exemption. We always have believed that this is a market place dispute between the owners of property and the users of property and should be decided in the market place. All we got was a stone wall. We addressed many other points as well we offered a code of conduct for both sides' dealings with each other, regional arbitration of fact disputes regarding our licenses, and instantaneous electronic access to information about our repertoire, which now exists and is available by direct modem, through the Internet, by 800 number, or by mail. And still we were stonewalled. But then the National Licensed Beverage Association, the group which had started the whole process, came to us and said that they did want to work something out. And, in the course of a long hard day of bargaining, we and they reached an agreement. It would clarify the law. And according to the Congressional Research Service, it would exempt almost 70% of the restaurants and taverns in this country. The only ones |