COPYRIGHT LAW REVISION WEDNESDAY, JULY 23, 1975 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE OF THE COMMITTEE ON THE JUDICIARY, The subcommittee met, pursuant to recess, at 10:40 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier [chairman of the subcommittee] presiding. Present: Representatives Kastenmeier, Drinan, Pattison, and Railsback. Also present: Herbert Fuchs, counsel, and Thomas E. Mooney, associate counsel. Mr. KASTENMEIER. The hearing will come to order. I would like to express the regrets of the subcommittee at the delay in convening this morning. The House of Representatives had very compelling business on the House floor. We had our photograph taken. Again I will state that we may be interrupted, but for quorum calls we will not recess. However, for votes, we shall. So we meet under those restraints. This morning's copyright law revision hearing confronts the issue of whether copyright protection should be extended to original performances of recording artists and musicians and related contributions of record companies in the creation of sound recordings. Illustrative of an affirmative answer is H.R. 5345 introduced by our colleague from California, Mr. Danielson. In the Senate an identical measure, S. 1111, was introduced by Senator Scott of Pennsylvania. Now, without objection, the Chair welcomes witnesses who favor adoption of a performance royalty. Among the witnesses we will be hearing in that connection are Mr. Sanford Wolff, executive secretary of the American Federation of Television and Radio Artists. He is accompanied by Mr. Henry Kaiser, general counsel of the American Federation of Musicians. Mr. Stanley Gortikov, president of the Recording Industry Association of America, Robert McGlotten, legislative representative of the AFL-CIO presenting a statement by Andrew Biemiller, who is the legislative director of that organization, Mr. John Hightower, member of the board of directors of the Associated Councils of the Arts, and Theo Bikel, president of the Actor's Equity Association. First, Mr. Sanford Wolff. Incidentally, if there are, as I gather there are, about six representatives of the panel in behalf of the proposal, we would like to greet you all and have you all come forward. Now I call on Mr. Wolff to make his presentation. TESTIMONY OF SANFORD WOLFF, EXECUTIVE SECRETARY, AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS, ACCOMPANIED BY STANLEY M. GORTIKOV, PRESIDENT OF THE RECORDING INDUSTRY ASSOCIATION OF AMERICA; JACK GOLODNER, EXECUTIVE SECRETARY, COUNCIL OF AFL-CIO UNIONS FOR PROFESSIONAL EMPLOYEES; JOHN HIGHTOWER, MEMBER OF THE BOARD OF DIRECTORS OF THE ASSOCIATED COUNCILS OF THE ARTS; THEODORE BIKEL, PRESIDENT OF ACTORS EQUITY ASSOCIATION; AND JAMES FITZPATRICK, ARNOLD & PORTER, GENERAL COUNSEL, RECORDING INDUSTRY ASSOCIATION OF AMERICA Mr. KASTENMEIER. Mr. Wolff. Mr. KASTENMEIER. We have your statement before us and we will accept it for the record. It is six pages long. You may want to present it in its original form. If you do not, we will be agreeable to having it appear in its printed form in the record. Mr. WOLFF. Mr. Chairman, there are a few but not substantial changes that I will make as I make the presentation, with your permission. Mr. KASTEN MEIER. Surely. [Mr. Wolff's prepared statement is as follows:] STATEMENT OF SANFORD I. WOLFF, ON BEHALF OF THE AMERICAN FEDERATION OF MUSICIANS (AFL-CIO) AND THE AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS (AFL-CIO) My name is Sanford I. Wolff. I am the Chief Executive of the American Federation of Television and Radio Artists, AFL-CIO, the collective bargaining representative of all the singers you have heard or seen on radio, television and phonograph records. Because of the unavoidable absence of Musicians' President Hal C. Davis, who is out of the country, I am privileged today to speak not only on behalf of the 30,000 actors, announcers, dancers, news correspondents and singers who constitute AFTRA, but also on behalf of some 330,000 members of the American Federation of Musicians. I should like at this time to introduce my distinguished colleague, Mr. Henry Kaiser, who, as you may know, has for many years been General Counsel of the American Federation of Musicians. My mission is to voice the common aspiration of all American performers that creative citizens at long last be granted copyright protection that would provide a small measure of participation in the revenues derived from the highly profitable exploitation of their recorded performances. Mr. Chairman and distinguished members of this committee, the time for the relief we have been vigorously pursuing for some 40 years-the time for realizing the modicum of justice these artists so eminently deserve is now. It has been too long delayed! Let me briefly recite some relevant history. In 1940 the Shotwell Committee. after three years of study, omitted recognition of performers' rights from a then proposed revision of the copyright law because, and I quote, "thought has not yet become crystalized on the subject ....... and no way could be found at the present time for reconciling the serious conflicts of interest arising in the field.” Twenty-one years later, in 1961, the Register of Copyrights, after many years of further intensive study, reported to Congress that the issues "have not yet crystalized” and that “detailed recommendations are being deferred pending further study." And five years after that, in 1966, this Committee accurately and sympathetically summarized the arguments advanced on behalf of performing artists, and acknowledged that "there was little direct response to those arguments" but, because of the then existing "concerted opposition," failed to accept our pleas specifically noting "the possibility of full consideration of the question by a future Congress." We now have had eight more years of experience and we are pleased to report a significant melting away of that "concerted opposition." Unlike eight years ago, we now have total agreement between the performing artists and the recording industry. Unlike eight years ago, we now have the unqualified support of the Register of Copyrights. On top of that, we now enjoy the support of the current Administration, The National Endowment for the Arts, and other influential groups from whom you will hear. In sum, the only real opposition is that of a powerful combination of commercial entrepreneurs enjoying public gifts of air-wave monopolies and prospering enormously on the uncompensated talents of our members, who—if I may be permitted the luxury of what is rapidly becoming a neoclassic expressionhave the "Chutzpah" to insist upon perpetuating an unconscionable exploitation. It is to me, and to the thousands I am privileged to speak for, unthinkable for that kind of opposition to carry any weight with the Congress of the United States. The legislation being considered should present little indecision to you. Its morality presents no mind-boggling challenge. It must be obvious that using a person's labors and talents to enrich oneself without compensating that person is less than ethical. It is hard to believe that the validity of that statement is less than self-evident. If, at the same time one uses another person's work, without compensation, to fill his own purse, and to replace another person whose living was earned by providing the same service, then the practice becomes thoroughly indefensible. It is a practice which creates unjust enrichment and unjust unemployment. Not too many years ago broadcasters employed musicians and singers on a full-time basis. We called it staff. There was an orchestra and a small group of singers who provided the music that was broadcast. Those people worked in many ways and on a variety of programs. Some of us still remember, with considerable fondness, Toscanini and the NBC Orchestra and the Riders of the Purple Sage. Though perhaps at the opposite ends of the musical scale, these American musicians and singers were employed to provide popular programming features for the American listening audience. Maestro Toscanini and the Riders are no longer with us, but their recorded music remains and continues, without cost to the broadcasters, without compensation to their heirs, and competes unfairly for jobs needed by their talented successors. A Martian would find it incredible that we appear here with hat in hand for the passage of this legislation. Where else in these United States does one have to beg to get paid for the use of his work when the users of his work acknowledge the value of the product and grow rich on it? This is madness-unfounded in logic, ethics or economics. The performers I represent here make an obvious, ever-increasing contribution to the programming of radio and T.V. stations. Basic American fairness requires that they be recognized and compensated. Please disabuse yourselves of the notion so widely cultivated by our opposition that the sales of records directly reflect the number of times the record is played on the air. Even accepting the arrogant premise that radio stations spend 75% of their air time out of eleemosynary concern for the record industry-and in disregard of their own profits-that notion is simply not true. Sales often suffer from over-exposure and overplay on radio. Simply put, why buy a record when you can hear it free? Put out of your minds, too, the canard propagated by the broadcaster that artists grow rich because of record sales. Present here today are men and women unknown to you. No Sinatra. Diana Ross, Elvis Presley, Johnny Cash or Fifth Dimension-No Perry Como, Kate Smith, or Johnny Mann here; but on the records made by those stars and played on radio stations throughout the land, these people present contributed their invaluable services-their performances were heard. M. David Grupp, a professional drummer who for 62 years has played for symphonies, on network television, recordings, theatres, clubs-even weddings. Many of the thousands of records he has worked on are still being extensively 57-786 76 pt. 2 40 broadcast, and he has never received a penny from the radio stations who profit from his talent. William Ackerman, born and raised in Nashville, has been making popular, country, and rock and roll recordings since 1960. At least 100 of the more than 5,000 recordings that Bill has made have gone over the million mark. He hears his product played on radio stations all over the country, but he is not paid for or consulted about the broadcast of his talents. Ralph Mendelsohn's instrument is viola. He has been with the New York Philharmonic for twenty-three years. When he joined the orchestra in 1953, its musicians were able to augment their earnings by radio broadcast fees. Today the Philharmonic's music is still used on radio to an even greater extent, but it is recorded and Mr. Mendelsohn and the other members of the orchestra get nothing. Louis Nunley of Nashville is probably the most recorded bass singer in the world. He's been a background singer since 1953, with thousands of records to his credit. Over 1500 of these have made the broadcast charts, and more than 200 made the top ten in radio play. Lou never received a penny for the broadcast of his records. Lois Winter has been a successful classical and popular vocalist for twentyfive years. She has performed as a background singer for every kind of recording. literally from A to Z-beginning with the Ames Brothers to Jazz Fiddler Florian Zabach. Remember Mitch Miller's record, "The Yellow Rose of Texas"? Lois, who has a Master's Degree in music theory, got $16 for the initial session fee, and nothing for the thousands of subsequent radio plays of that record. Lillian Clark, like Miss Winter, is a working singer living in New York. She began her career with the Clark Sisters, and has sung with such groups as the Skylarks. She and Miss Winter together have participated in thousands of New York recording sessions over a span of twenty-five years. Like the others, Miss Clark has received nothing for the radio plays of her work. Shirlee Matthews is one of the busiest singers in Los Angeles, devoting a major portion of her time and talent to recordings. You hear her voice every morning on the radio as you drive to work, and every night as you drive home. Shirlee is in demand because her talent is unique, and her "sound" is popular. But she is not helped by use of her recordings by broadcasters. Indeed, overexposure may shorten the length of her career. Ron Hicklin, also from Los Angeles, has a list of titles longer than my arm. He's sung with Frank Sinatra, Shirley Bassey, Carol Channing and Damita Jo. For his contribution to “Papa Loves Mambo” starring Perry Como, Ron got $18. Nothing for the countless replays for profit on the public airwaves. These and thousands of their anonymous colleagues are the people who bring the incomparable joys of music to America and to a large extent bring America to the world. These people and their colleagues are the indispensable source of the huge profits of the broadcasting industry. It is our fervent plea that they be granted the recognition and compensation so long and so sadly overdue. We are deeply appreciative for this opportunity. Mr. WOLFF. My name is Sanford Wolff. I am the chief executive of the American Federation of Television and Radio Artists, AFLCIO, the collective bargaining representative of all the singers you have heard or seen on radio, television, and phonograph records. Because of the unavoidable absence of Musicians' president, Hal C. Davis, who is necessarily out of the country, I am privileged today to speak not only on behalf of the 3,000 actors, announcers, dancers, news correspondents, and singers who constitute AFTRA, but also on behalf of some 330,000 members of the American Federation of Musicians. I should like at this time to introduce my distinguished colleague, Mr. Henry Kaiser, who, as you may know, has for many years been general counsel of the American Federation of Musicians. Mr. Kaiser is here and will be happy to participate in any subsequent discussions. My mission is to voice the common aspiration of all American performers that creative citizens at long last be granted copyright protection that would provide a small measure of participation in the revenues derived from the highly profitable exploitation of their recorded performances. Mr. Chairman and members of this committee, the time for the relief we have been vigorously pursuing for some 40 years, the time for realizing the modicum of justice these artists so eminently deserve, is now. It has been too long delayed. Let me briefly recite some relevant history. In 1940, the Shotwell committee, after 3 years of study, omitted recognition of performers' rights from a then-proposed revision of the copyright law because, and I quote, "thought has not yet become crystallized on the subject and no way could be found at the present time for reconciling the serious conflicts of interest arising in the field." Twenty-one years later, in 1961, the Register of Copyrights, after many years of further intensive study, reported to Congress that the issues and I quote "have not yet crystalized" and that "detailed recommendations are being deferred pending further study." And 5 years after that, in 1966, this committee accurately and sympathetically summarized the arguments advanced on behalf of performing artists, and acknowledged that "there was little direct response to those arguments" but, because of the then existing "concerted opposition," failed to accept our pleas specifically noting "the possibility of full consideration of the question by a future Congress." We now have had 8 more years of experience and we are pleased to report a significant melting away of that "concerted opposition." Unlike 8 years ago, we now have total agreement between the performing artists and the recording industry. Unlike 8 years ago, we now have the unqualified support of the Register of Copyrights. On top of that, we now enjoy the support of the current administration, The National Endowment for the Arts, and other influential groups from whom you will hear. In sum, the only real opposition is that of a powerful combination of commercial entrepreneurs enjoying public gifts of airwave monopolies and prospering enormously on the uncompensated talents of our members, who-if I may be permitted the luxury of what is rapidly becoming a neoclassic expression-have the "Chutzpah" to insist upon perpetuating an unconscionable exploitation. It is to me, and to the thousands I am privileged to speak for, unthinkable for that kind of opposition to carry any weight with the Congress of the United States. The legislation being considered should present little indecision to you. Its morality presents no mind-boggling challenge. It must be obvious that using a person's labors and talents to enrich oneself without compensating that person is less than ethical. It is hard to believe that the validity of that statement is less than self-evident. If, at the same time one uses another person's work, without compensation, to fill his own purse, and to replace another person whose living was earned by providing the same service, then the practice becomes thoroughly indefensible. |