believe to be the case, you can judge that before this has impact. Put us not only on our honor, but on our commonsense and our selfinterest.

Mr. KASTENMEIER. You also referred or adverted to, I think, a single payment. That was the thrust of the $25 fee type of thing, a single payment?

Mr. KAYE. I don't think so. If that is in the record, please don't send a copy to the Department of Justice. What I intended to indicate, Mr. Chairman, was that I saw no reason-well, I think I was referring to our offer, assuming it to be with notice to the Department of Justice, that I was prepared to walk into a room with the other performing associations and these people and arbitrate. I don't think it would require the agreement of the Department of Justice to have a single fee which we would then share as the samples of performances would indicate.

I would be perfectly willing to do that, if that proved desirable, subject, of course, to my natural inclination not to go to jail.

Mr. KASTEN MEIER. I interpreted your statement, where you referred to $25, and you referred to ASCAP and BMI

Mr. KAYE. I didn't mean to indicate that. Since our contribution is at least equal to ASCAP, I didn't want to indicate that we would take less than they. I think I did indicate that, if we could get prompt results here, I wasn't out to get the last dime from the first minute. Mr. KASTENMEIER. But as far as the payment system, you would not be opposed to a single payment system if it were legal and acceptable?

Mr. KAYE. If it were acceptable to the Department of Justice, I would have no objection to there being an amount paid for all three of the present performing rights organizations, with some machinery set up by us under which we could work out the division of it. No, I would have no objection to that.

Mr. KASTEN MEIER. Mr. St. Onge?

Mr. ST. ONGE. Mr. Kaye, you referred to the economically deprived composer of serious music. Have you any figures as to the average

income? I know it is difficult.

Mr. KAYE. It is so little, it is far below the poverty standard. A couple of thousand dollars a year would be an exaggeration. The difficulty is this: the serious composer is a person who breaks new ground very frequently, and it is long before that new ground is recognized. His social contribution in maintaining the steady flow and growth of music is overwhelming, but, historically, it has usually been the case of the serious composer that, unless he was supported by a Maecenas, for the most part he lived in poverty.

The result is that, except for a handful of people, all serious composers are teachers, or engaged in other professions or occupations. Dr. Sessions, I am sure, does infinitely better holding the principal chair of music at Princeton than he does as a composer, although his works are widely recognized and admired.

Mr. ST. ONGE. Dr. Sessions, you made the statement that the musicians who perform the composition of the serious composer get much more than the composer for the performance. Can you cite some figures to give us an idea?

Dr. SESSIONS. For instance, a string quartet that plays a quartet of mine may get from $400 to $600 a performance.

Mr. ST. ONGE. For one performance?

Dr. SESSIONS. For one performance. That includes, of course, that the performance has to be rehearsed. It includes a great deal more time than they give to it in the actual performance.

My performance royalty from the string quartet would be, I would say, $2 at the most.

Mr. ST. ONGE. $2?

Dr. SESSIONS. Yes, sir.

Mr. KAYE. And you will remember that Dr. Sessions may have furnished at his expense the four parts which were necessary and have to have a professional copyist write out the parts.

Dr. SESSIONS. That would have been true, but it would be true no more because my publisher does it. For many years, before my publisher was willing to undertake that expense, I would have to. Mr. ST. ONGE. Would that be true today of a young composer? Dr. SESSIONS. Yes; certainly.

Mr. ST. ONGE. That is, who hadn't proven his success?

Dr. SESSIONS. Any young composer in the first place who has no publisher would be forced, naturally, to have this done himself. In the case of an orchestral work, this can amount to as much as $1,500 sometimes. If the publisher takes care of it, it is not his expense, course. But this doesn't happen until he has proven himself.

of

May I cite one figure? This is a figure of 40 years ago but, nevertheless, it is a rather striking figure, I think. My teacher was a man named Ernest Bloch, who was a Swiss-born composer who came to the United States in 1916. He was already recognized to a large extent in Europe and his recognition increased after he came here. In 1924 or 1925, he remarked to me rather casually that he had just for his own amusement figured out the amount of money he had actually cleared from his music at that time. The figure was $500. His works are still performed. His cello work is played by all leading celloists all the time. It is one of the big standard works for the cello. Of course, things have improved since then. I couldn't give nearly such a small figure for myself, because I am younger, because things have improved, but nevertheless this figure is symptomatic.

Mr. ST. ONGE. Mr. Kaye, Mr. Finkelstein mentioned an arrangement that ASCAP has which gives some compensation, or at least additional compensation, to composers of serious music. Does BMI have such an arrangement?

Mr. KAYE. No. Our affiliates license their works to symphony orchestras individually. The symphony orchestra pays two sums, one for the rental of the parts from the publisher, divided with the writer, and one for the performing rights, so they get it on an individual basis. We, like ASCAP, with the knowledge of our popular writers, subsidize, in a sense, serious music by paying out far more to the writers of serious music than we collect from broadcasters, so that the well of serious musical inspiration will not run dry.

Mr. ST. ONGE. Could some sort of an arrangement be reached, say, for educational TV that performs a symphony so that the composer would get some revenue?

52-380-66-pt. 1- -15

Mr. KAYE. That would certainly be our hope. As to the amount, I think you will agree with me that the serious writer has not been spoiled.

Mr. ST. ONGE. I think the record clearly shows that at this point. That is all, Mr. Chairman.

Mr. KASTENMEIER. Mr. Tenzer?

Mr. TENZER. Thank you.

Mr. Kaye, earlier in your testimony, you mentioned that there was some litigation pending between CATV and BMI. I will ask this question: is there anything in this bill that would affect that litigation?

Mr. KAYE. In the first place, I must correct an inadvertence. The litigation to which I referred is between CBS and the CATV. My law firm happens to be representing one plaintiff in that action for copyright infringement. There are other plaintiffs in addition to CBS suing for copyright infringement. We believe that under the present law, commercial CATV is liable for copyright infringement today and we believe we will prevail in that case.

We believe that if there is any ambiguity, it is so resolved in favor of the copyright proprietor by the bill before you.

Mr. TENZER. Thank you.

You said that BMI collects about 40 percent of the gross income of ASCAP. These figures are completely beyond my knowledge. I intended to ask a question earlier today of Mr. Finkelstein. I did a little arithmetic. When you deal with percentages, the true facts escape you. We have a responsibility, the members of this subcommittee, not only to the other members of our subcommittee not present, and to our absent chairman, who is away on official business, but also a responsibility to be in possession of a great many facts to present the members of the full Judiciary Committee, to whom we will be required to report, and later to the Members of the House when the bill is reported to the floor; we need a lot of facts, and we need a lot of information.

Talking in percentages is not entirely satisfactory. I did a little more arithmetic. This morning Mr. Finkelstein revealed through the article in Billboard that there were 500,000 jukeboxes, and assuming a fee of $30 per jukebox, would amount to $15 million of gross income per annum.

We have had other testimony, somewhat at variance with your testimony, because it was suggested that there might be a single fee from a single location. Previous testimony also suggested that it would be possible, if you do not arbitrate your differences with the other organizations, that we might have a single fee to BMI from a location controlled by BMI, and if the location wanted to perform the works of both BMI and ASCAP, the location would have to pay two fees. And if they also wanted to perform the works of SESAC, they might be obliged to pay three fees.

Can you elaborate on that, please?

Mr. KAYE. First let me say before answering your question that your very able counsel knows where I can be reached, and at any point in these proceedings that you want any information, if the request is transmitted to me, the information of whatever character will instantly be forthcoming.

Mr. TENZER. Thank you.

Mr. KAYE. As far as BMI's payments are concerned, the license fees we collect on behalf of the 10,000 writers and the 5,000 composers, it is now, I think, approximately $17 million a year.

Mr. TENZER. $17 million?

Mr. KAYE. $17 million a year. I would prefer that you get ASCAP's figure from them. I don't know it precisely.

Mr. TENZER. These are not confidential figures?

Mr. KAYE. NO. We have a printed statement that I can send you a copy of for the record if you want it. We will have another one coming out soon.

Mr. TENZER. That is up to you.

Mr. KAYE. Now, with respect to the multiplicity of fees, multiplicity of fees is just the way everyone else operates now. The broadcaster, the hotel, the restaurant, pays a fee to ASCAP and a fee to BMI and a fee to SESAC if it has a SESAC license. Those bear some sort of relationship to each other, and the inherent competition involved in dealing with people on that basis is entirely unwelcome.

So far as the amount you have referred to, I think I have indicated that, so far as the total is concerned, without being willing to subordinate BMI's position to anyone, I would be inclined initially, I think, to be more modest. That is probably an indiscreet statement. They are not chasing me yet to find out how much to pay and I ought not to be running.

Mr. TENZER. One more question: do any of the well, I think your statement states that you have 10,000 independent writers and some 5,000 publishers, and an earlier statement today referred to something like 7,500 writers and 2,500 publishers.

Are any of these songwriters members of both groups?

Mr. KAYE. No. The theory on which the performing rights organizations operate is that they should offer to their licensees as nearly as possible the repertory of a writer and the repertory of a publisher so that they will feel secure in the sources of their rights, so that membership in ASCAP and BMI is exclusive.

Mr. TENZER. In your testimony, you suggested that this committee retain jurisdiction and allow the jukebox industry to come back here a year or two from now to review the effect of the law. Of course, you know we cannot retain jurisdiction of any legislation once it is passed. We might have an opportunity to review this effect of the law on the jukebox industry when the committee is asked to consider amendments to the copyright law.

Mr. KAYE. That is what I had in mind. I thought that if people came back and said that BMI wanted $500 a jukebox paid in advance in cash, that you would do something pretty drastic to that law to teach us a darn good lesson.

Mr. TENZER. No further questions, Mr. Chairman.

Mr. KASTENMEIER. Thank you.

Thank you, Mr. Kaye and Dr. Sessions.

Mr. KAYE. Thank you, sir.

Dr. SESSIONS. Thank you.

Mr. KASTENMEIER. Our next witness is Mr. Albert F. Ciancimino,

representing SESAC.

STATEMENT OF ALBERT F. CIANCIMINO, HOUSE COUNSEL, SESAC, INC., NEW YORK, N.Y.

Mr. KASTENMEIER. You may proceed, Mr. Ciancimino.

Mr. CIANCIMINO. Mr. Chairman, members of the committee, my name is Albert F. Ciancimino. I am an attorney admitted to the bar of the State of New York.

I appear here as house counsel of SESAC, Inc., of New York City. SESAC, Inc., is a music rights licensing organization duly organized and incorporated under the laws of the State of New York on February 6, 1931. We are the second oldest performing rights organization in the United States, representing the more than 300 publishers' catalogs whose names and addresses are listed in the schedule A which is herewith submitted to the committee as part of this statement.

Mr. KASTEN MEIER. That will be received and without objection, made part of the record.

Mr. CIANCIMINO. Thank you.

(The schedule is in the committee's files.)

Mr. CIANCIMINO. H.R. 4347 represents an attempt at omnibus copyright revision which is long overdue. Obviously, the principal obstacle to general acceptance of such a far-reaching piece of legislation is the unwillingness on the part of particular groups within the entertainment industry to subjugate their own subjective interests to the common good of omnibus copyright revision.

There are provisions in this bill that SESAC finds objectionable. I am sure each particular segment of the entertainment industry finds at least one or more of the provisions of H.R. 4347 objectionable. Objectionable because if each group had its way, this bill would be modified to better suit the particular needs of each such group.

However, SESAC is not here to condemn this bill with faint praise. We recognize the sincere and tireless efforts on the part of the Register of Copyrights and his staff, which have carried us to the present point in omnibus copyright revision.

We recognize and salute the Register's efforts to resolve conflicting interests in our industry prior to submitting his recommendations on omnibus copyright revision to Congress.

We recognize and appreciate the constant and persuasive urgings on the part of the Register and his staff for all segments of our industry to support, in every way possible, omnibus copyright revision.

It is for these reasons that SESAC takes a position in full support of H.R. 4347 as presently drawn.

We feel, and we hope that others testifying before this committee will also feel, that the advantages to be gained by modernizing our copyright law and bringing it in line with present-day practices and standards of living, far outweigh certain disadvantages contained in this bill when measured against our particular function in the industry.

What are some of the disadvantages which we find in the bill?

Firstly, SESAC, as a performance rights organization, has found that the best deterrent to copyright infringement is that section of the copyright law which provides for statutory damages. Under the