musical artists, on the kinds of material each artist prefers, on what producers the artist works with, and on what musical preferences these various producers might have. Our employees harmonious are regularly in touch with producers as well as "a & r" (artist and repertoire) representatives of record companies. Over time, we have developed and we work hard to preserve relations with record, motion picture, television and commercial producers and with recording artists. The publisher's promotional activities continue after a song has first been recorded. While a record company might seek to promote only its version of a song, a publisher strives to exploit all versions of the song itself throughout its copyright term. For example, through the efforts of Mills Music, there were 419 recording licenses issued for "Who's Sorry Now" during the twenty-eight year renewal term. Welk Music Group now utilizes a comprehensive computer library which can cross-reference a myriad of details of any of our more than 30,000 songs. Through the computer, we can sort out and list songs to meet particular needs for stage, screen, recording, advertising or any other use. And we do it all the time. Just recently, our Italian representative received an indication of interest in a country-western album. Though it took us by surprise that Italy might have a market for such a collection, our computer enabled us to provide a list of selections overnight. In addition, Welk regularly publishes listings of our songs arranged under various headings, such as time periods. This is designed to enable someone like a film or television producer to pick, for example, period songs to match the setting of an upcoming production or to draw from our catalogue songs to meet any other defined need. As some measure of the success of our ongoing promot ional activities, I note that, earlier this year, eighteen of the six of the top ten were published by Welk. That is no coincidence. It is proof of the music publisher at work. Publishers also engage in special promotions. At Welk, we have recently spent some $150,000 to promote the works of Jerome Kern worldwide in connection with the centennial celebration of his birth. Our promotional activities included the compilation of a five-volume set of Kern recordings for broadcast use only. Our efforts prompted the issuance of a Kern commemorative stamp as well as the declaration by President Reagan of "Jerome Kern Day." This extensive promotional effort has been extremely successful. It has stimulated the release of eighteen albums totally devoted to the works of Kern; eleven of them consisted of brand-new recordings. Our efforts also inspired a hit musical in London, "Kern Goes to Hollywood," which is expected to come to Broadway early next year. Mills Music is in the process of a similar form of promotional activity. It has compiled a collection of one hundred of the top hits from its catalogue, and is distributing some 5,000 copies of the collection to film companies, production companies, performing artists, managers, advertising agencies, record companies and every other potential group of musical decisionmakers. (This collection, by the way, includes "Who's Sorry Now," the song in the Mills Music lawsuit.) Mills's purpose is to place these songs before those who will be selecting music for advertising campaigns, films, television shows, night club acts, and other vehicles. Mills's "top-hundred" sampler is typical of the on-going promotional activities that music publishers, including Welk, routinely undertake. Recently, Mills collaborated with two other publishers, Robins Music and Tempo Music, to create the successful Broadway 57-196 0 - 86 - 3 show "Sophisticated Ladies," which presented a collection of songs by Duke Ellington and spurred new interest in that great music. Mills is now planning to stage an off-Broadway production of the music of Mitchell Parish, the lyricist of such songs as "Stardust," "Stairway to the Stars," and "Deep Purple." In a similar vein, Welk has created and distributed around the nation a radio program that showcases the works of Bob McDill, one of our composers, who this year was BMI's top country songwriter. Songwriters could, of course, attempt on their own to have their works performed and recorded, but they would have to devote time to those activities that could otherwise be spent creating their works. A few do this. But the vast majority of songs that win public acceptance emerge from the collaborative efforts of songwriters and music publishers, with the writer supplying melody and/or lyrics and the publisher supplying the financial backing, creative development, promotion and salesmanship. If publishers must be called "middlemen," we should at least be given credit for truly being in the middle (that is, at the center) of the process giving aid and direction at the creative stage, arranging for uses of works once they are composed, and providing financing throughout. While the focus these days is often on records and tapes, music publishers also make important contributions in the areas of print and educational materials. The publisher facilitates dissemination of orchestral arrangements, band arrangements, choral arrangements and folios. These have a special place in the music industry, and provide composers with an extra source of royalties. The music publisher's importance was confirmed by representatives of the songwriters themselves in testimony before Congress prior to enactment of the 1976 Act. Burton Lane, president of the American Guild of Authors and Composers, explained that "most writers cannot take the time to exploit the songs they write. Every moment is precious to them in order to create." For that reason, composers have agreed to share royalties with publishers "whose job it is to publish and exploit the songs we write. It is a partnership arrangement which has worked very well through the years." Copyright Law Revision: Hearings on S. 597 before the Subcomm. on Patents, Trademarks and Copyrights of the Senate Comm. on the Judiciary, 90th Cong., 1st Sess. 882 (1967) (emphasis added). The celebrated composer Marvin Hamlisch, in his testimony before Congress, also stressed the contribution of the music publishers. He stated: I feel that the argument is not with the I think that for every instance where a publisher, say, is a person who does not help, I think that there are a vast amount of people who can tell you that there are people getting paid without yet, you know, giving material, just by having faith in an individual, and, obviously, Ed Kleban now has proved that he is good, and the publisher now has proved that it was worth the investment. I just want to make sure that you understand that the plight of the composer is not up against the publisher because we have had great success with dealings with publishers. Copyright Law Revision: Hearings on H.R. 2223 Before the Subcomm. on Courts, Civil Liberties and Admin. of Justice of the House Comm. of the Judiciary, 94th Cong., 1st Sess. 1653 (1975). Let me add one further illustration close to home. My own success as a songwriter and as a music publisher is due to the efforts made on my behalf by Four Star Music, my music publisher when I was entirely unknown. My publisher believed in a song I had written, kept it in mind and carried it around, looking for just the right opportunity. Through his persistence, From the time the song came to the attention of Frank Sinatra. Frank recorded "That's Life," I became established as a successful songwriter and was able to build a career in the music industry. What Four Star Music did for me Welk Music other music publishers and many have done for a host of others. The Shared Royalities Court - - Some have suggested that Judge Weinfeld and the Supreme despite careful parsings of the language of the derivative works exception and painstaking analyses of the lengthy legislative history somehow misread in Mills Music what had been intended by Congress in that exception. The bills now introduced in the Senate and House of Representatives illustrate that had Congress actually intended a different result, it could have fashioned in brief compass the words required to carry out that intention. In the end, though, the issue now before Congress is not really whether the courts were right or wrong in interpreting the Act or in finding what Congress once intended. It is the issue of whether anything should now be done to rewrite the law. In my view, the law as it now exists allows a fair sharing of rewards among those who share in the creation of successful songs. Under the present copyright law, a music publisher continues to share the benefits from utilization of pre-termination derivative works created under licenses the publisher issued prior to termination, provided, of course, that its arrangement with the composer included a sharing of royalties. The derivative works exception states that such sharing of royalties from works licensed by the publisher prior to the effective date of termination continues when these works are utilized after termination. It is neither unfair nor |