inappropriate to allow a publisher to enjoy the fruits of his contribution a portion of the royalties arising from sound recordings licensed during the time the publisher owned the copyright and promoted the song. On termination, on the other hand, the composer regains full control of, as well as the entire stream of revenues from, all new uses of the song. The music publisher receives no benefit at all from any new post-termination uses of the song, even if these new uses are the result of past promotional activities on the part of the music publisher or past efforts by the music publisher to support and nurture the songwriter. if a Linda Ronstadt or a Joan Morris -- two popular performers who have been reaching into the repertory of standard hits were to record "Who's Sorry Now" in a new collection of standards, Ted Snyder's heirs would collect their full share of mechanical royalties, and Mills Music would get no portion of this share. Thus, Present law recognizes and encourages the collaborative By permitting the music publisher to enjoy all rights under a grant for recordings it licensed prior to an effective date of termination, the law motivates the publisher to continue to promote the work throughout the entire period of the grant. Bear in mind that the publisher's share of the royalties is what enables the publisher to finance the extensive promotional activities I have been describing and to nurture creative talent. If publishers were to be cut off from their share in pre-termination derivative works, they would have less incentive to promote works as termination approached. The result might well be to break the momentum of promotional activities and lessen the value of the work reclaimed by a composer or his heirs upon termination. efforts between composer and publisher. intended congressional policy. The Supreme Court specifically found that Congress intended in the "termination provisions to produce an accommodation and a balancing among various interests." This is the Mills Music Inc. v. Snyder, 105 S. Ct. 638, 650 n.41 (1985). In this accommodation, an author regains the right to exploit his work and to receive all compensation from this new exploitation, but the author does not gain new or enhanced compensation from pre-termination derivative works. case even if, for example, an author's grant gave up the screen rights to his book for a modest one-time payment and the book later became the box office blockbuster of all time; under the termination provisions, the author gains no benefit. In Mills Music, the composer continued to receive at least fifty percent of all royalties derived from pre-termination sound recordings and gained entirely whatever income can be derived through the creation of new derivative works or other future uses of his song. Thus, the law currently leaves in place and gives effect to agreements governing pre-termination derivative works, but gives all future benefits for new uses to the authors. - The arrangement seen in Mills Music which a host of witnesses confirmed to Congress to be the standard within the music industry provides for a fifty/fifty sharing of mechanical royalties between composer and publisher. (These days, some songwriters receive an even higher percentage of the royalties.) This is hardly the type of "unremunerative" grant Congress was particularly addressing when it created the termination right - such as a grant that releases all of a writer's interest in a work in exchange for a modest and one-time lump sum payment. In fact, lump sum transfers are virtually unheard of in the music industry. It is therefore not a "windfall" if, at the point the composer regains ownership in the copyright, the publisher continues to receive fifty percent of the royalties his efforts have helped to generate, continuing this shared arrangement through the balance of the nineteen-year extension term. In effect, the publisher and the writer continue to share in what the publisher was responsible for promoting in the past and the writer, upon termination, recaptures all future use and exploitation value without any right by the publisher to share in the new uses. The In the realities of the music business, composers have much greater protection, and much greater bargaining power vis-avis publishers, than may first appear. It is as misleading to present songwriters as impecunious creaters at the mercy of publishers as it is to label publishers as "middlemen." existence of a fifty/fifty standard reflects the historic partnership between composers and publishers, and the greater than fifty percent share that some composers receive today reflects the ability to bargain above the standard. What Moreover, the ability of composer and publisher to negotiate a transaction favorable to the publisher is significantly limited by the termination provisions of the Copyright Act, for there is an inalienable right of termination that the statute preserves for the composer and his heirs. is more, under current law composers can, on a going forward basis, seek agreements with publishers providing that in the event of termination, 100% of the royalties from pre-termination derivative works will go to the composer. Thus, a composer and a publisher can decide by contract whether the composer will take away the publisher's share of royalties on termination. In view of the contribution made by publishers, there is no sound basis for legislatively writing such a provision into every agreement to license a work to a music publisher, and thereby extinguishing the ability of the parties to address the issue as they see fit. What is now being proposed is that, despite the accommodation and balancing of interests reflected in current law, an author or composer should take over "any right to royalties" derived from the utilization of a pre-termination derivative work. Because of the historic relationship between songwriters and music publishers described above and because of the close involvement of music publishers in the creation of many successful songs, I submit there is no reason to reconstruct the balance previously struck by Congress. To depart from the contractual arrangements governing pretermination derivative works might create uncertainties in place of now clearly settled law. Multi-party situations are by no means limited to the music industry, and these arrangements are almost certainly implicated by any change in the law. For example, a motion picture deal frequently includes contracts between and among an author of a book, a book publisher, the producer and one or more distributors, in which a copyright might be assigned and royalties allocated to meet a variety of tax and financing considerations and to recognize the respective contributions of each party to the ultimate creation of the motion picture as a derivative work from the book. The law now leaves intact, after termination, contractual arrangements governing such pre-termination works, and the respective parties continue to share in the proceeds generated from their joint creation, consistent with their bargain. I conclude where I began. I believe composers and publishers have a shared interest and purpose. We work together to create music that the public hears and enjoys. Congress, in the 1976 Act, struck a series of bargains and compromises that reflected and preserved the values of our mutual cooperative endeavors. The Supreme Court in Mills Music affirmed this accommodation of interests. The balance struck in 1976 and reaffirmed this year should not be undone. THE WELK MUSIC GROUP 1299 OCEAN AVENUE, SUITE 800, SANTA MONICA, CALIFORNIA 90401 (213) 451-5727/870-1582 TLX181915 Dean Kay Executive Vice President December 10, 1985 The Honorable Arlen Specter Washington, D. C. 20510 Re: S.1384 Dear Senator Specter: Following my appearance at the hearing of November 20, 1985, I I have now received, in response, letters that concur in my In several instances, the letters also provide further illustra- I am enclosing copies of letters received from: Warner Bros. Music; Chappell/Intersong Music Group U.S.A.; Famous Music Publishing Company; The Lowrey Group of Music Publishing Companies; Peer-Southern Organization; September Music Corp.; Shapiro Bernstein & Co., Inc.; Jøbete Music Co., Inc.; CBS Songs, Inc.; and Acuff-Rose Songs I respectfully request that my letter and these responses be made T.B. HARMS COMPANY (ASCAP) VOGUE MUSIC (BMI) BIBO MUSIC PUBLISHERS (ASCAP) HALL-CLEMENT PUBLICATIONS (BMI) SOMEBODY'S MUSIC (SESAC) JACK AND BILL MUSIC COMPANY (ASCAP) HARRY VON TILZER MUSIC PUBLISHING COMPANY (ASCAP) CHAMPAGNE MUSIC CORP. (ASCAP) |