profits and the performers will see little, if anything, of the rewards for benefitting such vast audiences. Such a situation must not be allowed to occur. Despite the profound advances which have been made in technology and the changes which they herald, our government has been shockingly lax in bringing the laws of copyright into tune with the times." Therefore, the convention endorsed proposals then pending before Congress "which would assure the right of the performing artist to compensation for the broadcast and commercial exploitation of his recorded work. We believe this is fair", the convention said, "we believe this is just and must not be denied.”

In 1966, this subcommittee put off a decision regarding the performance rights question saying, in its report, that it did not foreclose "the possibility of a full consideration of the problem by a future Congress."

Today, five Congresses later, America's recording artists are again petitioning for the redress of a very serious grievance. They have waited long enough.

The AFL-CIO firmly believes their request is justified and cannot be avoided any longer if the Congress truly intends to bring the nation's copyright laws into tune with the times.

Sincerely,

ANDREW BIEMILLER, Director, Legislative Department.

Mr. KASTENMEIER. Then as a panel you have 9 minutes remaining. Now, Mr. Hightower has 3 minutes, Mr. Bikel 3 minutes, and Mr. Gortikov, if you prefer that he continue to summarize his statement, because he has not concluded, that is acceptable.

Mr. WOLFF. Well, I certainly would like to hear from Mr. Bikel, but if there are 3 minutes of Mr. Biemiller's or Mr. Hightower's statements, it seems to me there are another 3 minutes left, and I would hope that Mr. Gortikov could be given that opportunity to utilize the 3 minutes and summarize the balance of his statement.

Mr. KASTEN MEIER. All right.

Mr. WOLFF. Thank you very much.

Mr. GORTIKOV. OK. To continue, so only some recordings played over the air benefit performers and companies. But all recordings played over the air benefit the broadcasters.

But the performance royalty principle in the copyright law is not conditioned on who benefits from what. If the principle is valid that one should be compensated for the commercial exploitation of his creative product, then the musicians, vocalists, and the recording company are entitled to a performance royalty.

Broadcasters may suggest that they cannot afford to pay a performance royalty. Or that the fee schedule would hurt smaller stations.

The radio and television industries are growing and prosperous. Their revenues, profits, and equity values over the years all have been increasing.

The fee schedule established in this legislation is quite modest when you remember that 75 percent of radio programing is based on sound recordings:

1. Radio stations with net advertising revenues of $25,000 a year would pay nothing-or below.

2. Radio stations with revenues between $25,000 and $100,000 would pay $250 a year, or about 75 cents a day.

3. Stations between $100,000 to $200,000 would pay only $750, or about $2 a day.

4. Stations with revenues of more than $200,000 would pay a maximum of 1 percent of their annual net income from advertisers, or some lesser percentage based on their actual usage of recordings.

Under this fee schedule, 62 percent of all radio stations would pay either nothing, or token fees, ranging from 75 cents to $2 a day. Ând 38 percent of stations would pay a performance fee of up to 1 percent. This 1 percent is a small sum indeed compared with the 3.7 percent that the radio stations voluntarily agree to pay publishers and composers through ASCAP, BMI, and SESAC.

Remember, too-and this is a critical statement-that if a station considers its fee to be unfair, that station has full discretion as to what it broadcasts. It need not play any records. It has the unilateral right to turn to any other form of programing of its choice.

We are here to ask you to make this legislation part of the general copyright revision bill. That is where it was previously. That is where it belongs. As the Senate Judiciary Committee said last year, there is "no justification for not resolving this issue on the merits at the present time. All relevant and necessary information is available."

I think I have hit my 3 minutes, Mr. Chairman. I have more comments, but they are contained in my submission.

Mr. KASTENMEIER. Thank you.

Mr. DRINAN. Mr. Chairman, one question to clarify what is really in issue here, if I may.

Mr. KASTEN MEIER. The gentleman from Massachusetts.

Mr. DRINAN. Later on the president of the National Association of Broadcasters says they are being asked now to give an additional 1 percent and he states they already pay 3.5 percent to SESAC and ASCAP. What is the 1 percent? One percent of net? One percent of gross? Or how does that 1 percent come out that you mention here "Pay the full performance fee of up to 1 percent?"

Mr. GORTIKOV. OK. It is 1 percent of net advertising revenues and it is in addition to the 3.5 percent they are currently paying to composers or publishers. So the 1 percent is but a modicum of the amount paid for the music. And it is a separate payment we are requesting in behalf of vocalists, musicians, and recording companies.

Mr. DRINAN. If 38 percent of the stations would have to pay that. how much does that come to total?

Mr. GORTIKOV. We estimate if the full yield is made under that schedule, there would be about $10 million per year that would be shared by the vocalists, musicians, and recording companies. Mr. DRINAN. In addition to what they pay ASCAP?

Mr. GORTIKOV. In addition to what they pay composers and publishers.

Mr. DRINAN. What does ASCAP and BMI say about that?
Mr. GORTIKOV. They stand silent on it.

Mr. DRINAN. Thank you, Mr. Chairman. That is all I want to know.
Mr. KASTENMEIER. Mr. Hightower.

Mr. HIGHTOWER. Mr. Chairman, I have prepared a statement. If there was no objection, I would like to have it presented for the record of the hearings, and I will just make my comments brief.

My name is John Hightower. I am chairman

Mr. KASTEN MEIER. Mr. Hightower, we have an editorial statement from you, but this is not the statement.

Mr. HIGHTOWER. That is not the complete statement. That is part of the statement for the record.

Mr. KASTEN MEIER. Oh, yes. We have it here. Without objection your statement in its entirety will be received and made part of the record. We recognize you for whatever comments you want to make.

Mr. HIGHTOWER. Thank you. My name is John Hightower. I am chairman for Advocates for the Arts which is a group of 4,000 citizens throughout the United States concerned about the artistic life of the country. It functions as a program of Associated Councils of the Arts, which is an organization representing individuals, professional individuals, and art organizations including all of the State arts agencies and commissions throughout the country.

I want to urge that the subcommittee consider and include H.R. 5345 into, and make it a provision of, the comprehensive revision that is the subject of H.R. 2223.

I think probably the most compelling argument I can present was provided by the person I sat next to on the plane from Albany this morning. It happened that he is a composer of popular ballads, and when I told him why I was coming to Washington today, he said I certainly hope that provision is passed. As a composer, I would give anything if Barbra Streisand or James Taylor would perform one of my compositions.

The tradition has, of course, always been that the composer benefits whenever a work is used commercially.

The second point that I want to make is the fact that most of the debate this morning seems to center on the broadcasting industry as the opposition, but I would just like to point out for the record that jukebox operators and background music merchants also have a free ride, if you will, whenever work is performed by an interpretive artist commercially.

And finally, to summarize, I just want to say that the consequences of the new copyright law for the artistic life of the country are indeed profound and there is certainly an urgent need for Congress through a revised copyright law which hopefully will include a performance royalty for interpretive artists as well as creative artists to encourage artistic talent and to provide value for its expression through the legal protection and economic incentives of H.R. 5345. Thank you very much, Mr. Chairman.

Mr. KASTENMEIER. Thank you, Mr. Hightower.
[The prepared statement of John Hightower follows:]

STATEMENT OF JOHN HIGHTOWER, CHAIRMAN, ADVOCATES FOR THE ARTS

Chairman Kastenmeier, members of the committee:

My name is John Hightower. I am chairman of Advocates for the Arts, a group of 4,000 citizens throughout the country concerned about the artistic life of the United States. By definition our concern includes the rights and role in our society of artists-the source of the arts. Advocates for the Arts is a program of Associated Councils of the Arts, the national service organization for state and community arts councils; it has a professional membership of 900 organizations and individuals including all of the nation's state arts agencies and commissions.

I am grateful for this opportunity to present our views on H.R. 5345 currently before the House and S. 1111 in the Senate, both of which may eventually be considered amendments to the omnibus copyright bills, H.R. 2223 and S. 22.

The "performance royalty" that is the subject of H.R. 5345 and S. 1111 would compensate both the originator of a work and the interpreter of that work when any material is presented for commercial use on recordings, juke-boxes, radio, television, motion pictures, background music-in all media. This provision would

correct an omission that is now present in the comprehensive copyright legislation that will, we hope, be passed by the 94th Congress.

It would be cruelly ironic if the extensive and long-awaited revision of the 1909 Act were resolved in favor of those individuals and organizations who use creative material for commercial gain and yet simultaneously left out those individuals who make a creative contribution to artistic material. Clearly it was creativity that the Constitution was specifically trying to protect and encourage when it gave to Congress in 1789 the power ". . . to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . .”

WHY THE PERFORMANCE ROYALTY IS IMPORTANT

The arguments for passing a performance royalty are uncomplicated, but, as always subject to misinterpretation and self-interest.

Less than 20% of all recorded works are successful-which means they earn more than they cost to record. The other 80% stimulate the growth and expansion not only of the recording industry, but of the nation's artistic life as well. Recording companies have one source of support—the individual consumer. Under current practices, those who benefit most from the recording industry's development are broadcasters and juke-box owners who pay the least for these benefits which yield them profit.

The debate can be clouded by tales of extraordinary sales of pop records and astronomical incomes of the latest and hottest rock group. These are momentary winners in the royalty sweepstakes. The consistent loser, however, is the consumer who buys individual recordings, for it is currently up to the consumer to bear the entire cost of the recording industry-including a performance royalty for interpretive artists while broadcasters, back-ground music merchants, and juke-box chains pay nothing.

Regardless of the fleeting popularity of most of our so-called popular artists, the income of pianists, violinists, singers, concert performers, dancers, opera companies, theater groups, and symphony orchestras is also affected. These artists and arts organizations should be compensated along with the composer and author every time a work in which they have a part is used commercially.

As Erich Leinsdorf, conductor of the Boston Symphony Orchestra, stated in his testimony for the Senate Copyright hearings in 1967, "When the artist performs twice in live performance, he is paid twice. If you perform six times, you are paid six times; but with a recorded performance my work can be ‘exhibited' as often as the station likes-and the cost to the radio station will be the same, nothing. There is something wrong about this, there is no doubt about it.

"... Radio stations will play recordings time and time again over many, many years, long after it is possible to buy that recording in a music shop. For the composer and the publisher this is not a problem as they continue to benefit from fees. But the performer gets nothing, even though in most instances it is the performers . . . who create the demand.

"And do not forget that . . . all sorts of music performers, particularly singers, have a limited time in their careers. One problem prevailing with singers . . . is that they have no way of depreciating themselves in the tax structure. It is not fair for others to be making a profit from performers' talents long after the performers stop receiving any income."

The incorporation of S. 1111 and H.R. 5345 into S. 22 and H.R. 2223 respectively would also allow United States copyright law to conform with the performance royalty clause of most other nations in the Western world.

I also urge that one more glaring inequity be corrected by the Committee. At the present time public broadcasters-radio and television alike—do not compensate composers whenever a work is performed. To compound this injustice technicians, musicians, administrators, and others involved in the operation of public broadcasting are compensated. Only the composer-the creative source of material-is not. The irony is extended even further as the result of a recent contract with the U.S.S.R. in which the Soviet Union is required to compensate any composer whose work is broadcast in Russia.

On behalf of Advocates for the Arts, I strongly urge the passage of S. 1111 in the Senate and H.R. 5345 in the House.

The consequences of a new copyright law for the artistic life of the country are profound. There is an urgent need for Congress, through a revised copyright

law, to encourage creative talent and to provide value for its expression through legal protection and economic incentive.

Mr. KASTEN MEIER. The Chair would like to greet the distinguished American actor and artist and musician, an old friend of many of us in Wisconsin, Mr. Theo Bikel.

Mr. BIKEL. Thank you, Mr. Chairman. I hope 30 seconds were left over from John Hightower that I can grab in passing.

I, too, have a full statement which you have for the record.

Mr. KASTENMEIER. Without objection that will be received for the record. [See p. 1352.]

Mr. BIKEL. I will try to paraphrase and be brief.

Mr. Chairman, I appear here today not only as president of Actor's Equity Association, but also as an individual performing artist who, I hope, has more than a passing acquaintance with the problems and goals of the American recording artists. Frankly, we are appalled that H.R. 2223, which is heralded as an effort to update the 1909 copyright laws, ignores the impact of the recording on the performing or interpretive artist. When the present basic code was established in 1909 and debated, the work of the performing artist had not changed in its essentials. The performer would weave the magic of his unique talents when he wished, where he wished, for whomever he wished. His art, because it could not then be reduced to a tangible form, could not be stolen, could not be abused, distorted, or exploited by others.

Now, the advent of the phonograph record and of radio changed all that. The nature of the performer's performance is no longer ephemeral. It is something tangible, durable, can be repeated over and over again, and can even outlive the performer who originated it. I would like you to understand, gentlemen, that the work, the rendering of the performance is not a recreative or reproductive act, but a creative act in itself, a work of art which is unique with every performer. It is so unique that it may never even occur again when attempted by the same performer. And that its uniqueness has been acknowledged far and wide.

Now, the broadcasters and others who profit from the work of the performers say that is not-the performer is not a creator of anything and I am amazed, too, with my colleague, Mr. Wolff, that they have the gall to come before you and ask you to disbelieve your own ears, to tell you, for example, that my rendering of a folk ballad is totally indistinguishable from that of Arlo Guthrie or Harry Belafonte or anybody else, for that matter.

The broadcasters do not take into consideration and seem to have great disregard for the thousands and thousands of job opportunities lost by innumerable unknown but talented American singers and musicians.

I find another aspect to be terribly ironic, the development of government programs on State, local, and Federal levels to employ musicians and singers to replace with government funds the opportunities denied to artists who have lost them because of the technological advances that have been made.