Mr. BIKEL. But not economic power. [The prepared statement of Theodore Bikel follows:] STATEMENT OF THEODORE BIKEL, PRESIDENT, ACTORS EQUITY ASSOCIATION Mr. Chairman, I appear here today as President of the Actors' Equity Association and as an individual performing artist who has more than a passing acquaintance with the problems and goals of the American recording artist. Actors Equity is the national union of some 19,000 professional actors. actresses and stage managers. Our primary concern is with the welfare of these very talented, creative people when they appear on the stage of the American theatre. Though many of them also make recordings, we do not directly represent them in their relationships with the recording industry or the broadcasters. That is the function of the American Federation of Television and Radio Artists, and the American Federation of Musicians, representatives of which organizations have appeared before this committee and its counterpart in the Senate many times over the past several years. And they are appearing before you again today. I am here to support their appeal for incorporation into H.R. 2223 of the principles expressed in H.R. 5345. Quite frankly, I am appalled that H.R. 2223 which is heralded as an effort to update our 1909 copyright code, ignores the impact of the recording on the performing or interpretive artist. In 1909, at the time the present basic Code was debated and approved, the work of the performing artist-actors, singers, musicians had not changed in its essentials for centuries. The performer could weave the magic of his unique talent as he wished, for whomever he wished. His art, because it could not, then, be reduced to a tangible form, could not be stolen, abused, distorted, or exploited by others. The writer needed a détente with the printing press but in 1909 the performer had not yet come to face his own mechanical nemesis. But two inventions changed all that: the phonograph and the radio. Between 1909 and today new developments coming with increasing speed have made it possible to freeze the artists' works on all kinds of material and transmit these performances to millions of people at one and the same time. Because of these technical changes the performer's creation is no longer ephemeral; it has become something tangible and durable and it may be repeated exactly as originally rendered over and over again and even outlive the performer who originated it. The multiple effects on the performing artist's professional and material condition have been devastating. To understand this, you must first understand that the rendering of a performance is a creative act—a work of art that is unique with each performer. It begins when one is born with talent to perceive and hear certain things; it continues through years of practicing and perfecting a technique by which these things can be communicated to others and it culminates in a performance a performance which is so unique that it may never occur again even when attempted by the same performer or performers. The broadcasters and others who profit from the work of performers will tell you this is not so—the performer is not a creator of anything, they say. I am amazed they have the gall to come before the Congress with such foolish sophistries. They are asking you to disbelieve your own ears. Can anyone, truly, render a song like Bert Lahr? Is there no distinction between my interpretation of a particular folk tune and Arlo Guthrie's or Harry Belafonte's performance of the same tune? What nonsense would they have you believe? I think Erich Leinsdorf, former Music Director of the Boston Symphony knows a little about how music is created and he told the Senate committee in 1967: "A musical composition-a musical score is not a jigsaw puzzle. In a jigsaw puzzle, the pieces go just so. There is only one way. No other possibilities. No interpretation. And when you have put the pieces where they fit you have a completed picture that will never change. You cannot say that one is better than the other. "A musical score-the written-down score is a blueprint which is open to many ways of reading it. It is a blueprint which even if it is very strictly marked by the composer, still leaves a lot of room for both discretion and interpretation. ... "At the beginning of every year I tell my conducting students, when you are studying a score do not listen to a recording of the piece because what you hear is not the composer; you hear the composer as presented to you by a strong performer or a strong personality. I tell them if you want to get to know the composer and make up your mind about how you feel about his work, you must only read his work. Only by reading will you know, because by listening you are not listening to the composer but to the composer plus. "If the performer and the artists were not important, then one recording of Beethoven's Ninth would be sufficient for everyone for all time. Why bother with a second interpretation if it can be no different than the first? Or a third? "No two performances are ever alike; you cannot make them alike even if you want to. Because the human blood is not made that way and the human heart isn't made that way. And the human temperament isn't made that way." Less than a hundred years ago, actors like Edwin Booth, Ira Aldrich and James O'Neill, father of Eugene O'Neill, built entire careers on their performance of a particular play or the portrayal of a particular character which they spent years developing. Millions came to their touring performances. Others performed the same plays by the same authors but millions came to see only these particular performers. Why? Because what they did was unique, impossible to duplicate and preferable to the work of others. Today, however, such careers can be telescoped into a single recorded performance mechanically repeated time and time again and broadcast nationwide or even worldwide. The radio broadcasters, the jukebox operators, the background music organizations piously inform you of their great public service to the arts and culture of America. "We", they say, "are the communicators of the performing arts and the popularizers of the individual artists. We do everyone great favors and, only incidentally, make a very nice profit for ourselves". This is sheer nonsense, for the exact opposite is true. It is the recording artist who makes it possible for these corporations to function. It is the recording artist who provides their programming-the basic service they sell. It is the material prepared in a recording studio-not in a broadcast station-that people listen to. If there is a scale of measure who benefits most from the relationship between recording artists and these segments of the media, precious little weight would be found on their side. I assure you. Artistically, they contribute almost nothing that was not created by others and often initially paid for by others. As you know, the broadcasters are now irate over the fact that cable television may use material prepared by the broadcast television producers without payment. I agree with them. This should not happen. But, I believe it is insulting to America's artists and audacious in the extreme for them to ask that you deny the very same principle to the recording artist that they wish you to uphold in their behalf against CATV. The broadcasters and others who profit from the use of records speak of promoting a few solo artists but they never mention the problems of oversaturation faced by many other artists. They do not speak of the growing number of radio stations today that do not even announce the music played, much less the artists performing, lest they take some time from the sponsor. They say nothing about the music piped into your office buildings, restaurants, beauty parlors, ball parks and bathrooms which is never identified and provides, not only no remuneration, but not even the benefit of publicity to the artists. Nor do they mention the growing potential for record buyers to tape directly off the air thus avoiding the necessity of purchasing a record for their own use or the use of their friends. What will happen to the argument that radio promotes the sale of records when this practice spreads? They do not speak of it. And they never speak of the thousands upon thousands of job opportunities lost by innumerable, unknown but talented American singers and musicians because their recorded work or the recorded works of others displaced them from broadcast stations, cafes, restaurants and theatres. But this is a fact that cannot be denied and it has had very serious consequences for the cultural life of our country. One result has been the development of government programs on state, local and federal leve's to employ musicians and singers; to replace, with government funds, the opportunities denied these artists because of technological innovation. I find this to be ironic. The Congress creates and supports programs for the arts and the artist but effectively prevents him from sharing in the huge profits being made by others on his work. I am not opposed to technological change. I am pleased that, because of it, so many Americans and others can hear and enjoy the works of our very best talents, but, along with nearly every other artist in this land, I resent it when someone else makes a profit-a very good profit-from my talent without so much as a token offer of remuneration to acknowledge the debt. I often hear talk in these halls of the impact of technological change on man and the necessity to develop methods by which government can insure that such change enhances human endeavor and does not stifle it. Well, here is a classic case. The recording, coupled with sophisticated transmission methods, makes it possible for people and corporations unknown to me-people who never employed me and never pay me to take my art and turn it to their own profit. Abraham Lincoln pointed out that every worker is worthy of his hire. If the performer is hired, via the recording, by the radio station or jukebox operator, isn't he worthy of some compensation? The station manager gets paid, the disc jockey gets paid, as does the cleaning person. Since the work of recording artists comprises the overwhelming preponderance of what the radio stations sell aren't the artists entitled to something? Mr. Chairman, you and many of your colleagues have heard these comments and questions before-many times before—and I thank you for your patience in listening to them again. I returned from Europe two days ago to be here not because I personally have something at stake. It happens that the records I make are not the staple of the average broadcaster or jukebox operator. I made this effort because I am privileged to represent thousands of very creative performing artists who are not famous, not wealthy, not even comfortably well off, who are waiting-after many years for your answer to the questions and comments I have voiced today and others have voiced here and at earlier hearings. H.R. 2223 faces up to the author's problem regarding the duplicating machine and even treats the broadcaster's problem regarding cable. Why, then, should it persist in ignoring the performing artist's problem vis-a-vis technological changes that were innovated long before cable and Xerox came upon the scene? The bill would limit the copying of the printed word but it perpetuates the practice of permitting the free copying of a performer's work over and over again for the profit of others. This inconsistency is wrong and the reluctance of this Committee and the Congress to face up to it is wrong. You have been told this by many knowledgeable artists-individually and through their organizations. You have been told this by representatives of the arts councils of our several states and communities, you have been told this by the National Endowment for the Arts, created, as you know, to assist and guide our national government in its relationships with the arts, you have been told this by the Administration and the Register of Copyrights. To my knowledge, 31 nations of the world have legally acknowledged the right of a performer to share in the profit made from the use of his recorded work and, by implication and example, they, too, have told you this country's current practice is wrong. Only those who derive personal profit by preventing or postponing any change in the status quo say otherwise and-as I indicated earlier even they contradict themselves on the basic principles involved. I sincerely trust this committee will see and understand these discrepancies and inequities in H.R. 2223 which discriminate against the performing artist and that it will make the appropriate corrections suggested by H.R. 5345 and similar bills. Mr. KASTENMEIER. I thank the panel. I should observe that while we have been proceeding on these issues, each separate issue is in the context of a very large omnibus revision bill. Where we can isolate an issue of this sort, as important as it is, we have tried to accommodate the issue to our own schedule of time in Congress. We happen to be in session at the moment, but by asking a panel, however distinguished, to share what is really 30 minutes on one side, knowing that our questions, all colloquies which follow, will take another 30 minutes or so and the other panel will have a similar 30 minutes and 30 minutes or more, so that more than two hours are probably involved, or a whole morning, in attention to an issue of this sort. That is why we get into time constraints which sometimes we are compelled to impose. I have just a couple of questions. Maybe I can address this to Mr. Gortikov or Mr. Wolff or Mr. Kaiser. When we deal with the copyright protection in terms of a composer, whether that is recorded or live, in terms of music, the composer is protected. He is entitled to a performance royalty as he well would be also for a recording. There is a distinction here, however. While this refers primarily to recordings, musicians or artists performing live in a music hall in a single unrecorded performance receive something other than a royalty. He receives some sort of a fee for the performance, but it is not a royalty. Could you treat this distinction for me? Mr. KAISER. It goes right to the nub of the question, Mr. Congress. man. Mr. KASTENMEIER. I guess the-what the implication is that really your live performance is not a performance within a copyright— within the framework of copyright and presumably there is no need to bring in even at this moment Mr. KAISER. Obviously Mr. KASTENMEIER. Except in the context of recordings. Mr. KAISER. If we never had the printing press, if we still had the old story teller, the maker of a novel going around telling his story and having a full life of full employment, there never would have been a copyright law. When musicians or artists appear at a live concert, they get their pay for appearing there. It is when they are not employed by others who have for eternity perpetuated the skill exhibited at the live concert that keeps the musician or vocalist at home while others are still playing and using his talents and getting paid for it, where he gets no pay for it, that I suggest is the quintessence of the whole copyright phenomenon. There is no difference between the two. When a motion picture studio engages a composer for hire, he gets paid for the work he does. The copyright comes into effect or becomes meaningful only when that product is extensively reused without his presence and being paid for at that presence. Mr. KASTEN MEIER. When an artist, such as Frank Sinatra, does a record, of course, he is in a favorable negotiating position outside of the copyright protection suggested here. I assume that he negotiates not only the basis of a single performance fee such as many of the distinguished artists that have appeared here this morning that you introduced. It is rather something beyond that when he makes a record. I think it would be well if you indicated that difference, too, to the committee so we are able to see what the market mechanism is with respect to artists in terms of the present protection. Mr. WOLFF. Perhaps we take things as being so self-evident that we don't bring them out quite as well. It is true. Mr. Sinatra and other stars of that nature-Mr. Bikel-is capable because of, as you say, his negotiating position, to negotiate a royalty which he will be paid on the sales of the record by the person who employs or contracts with him to make that particular record. It is seldom, however-and he receives a royalty and that royalty can range from 2 percent of 95 percent of sales less tremendous costs of recording, and I will go into that, to perhaps maybe 10 or 12 percent for Mr. Sinatra. I don't know. This is a matter of privacy and I am not privy to it. However, the overwhelming majority of records produced do not return royalties do not, and I underline not, return royalties to Mr. Sinatra or any other star, the reason for it being that the tremendous cost of producing a record and producing it in a way that a Mr. Sinatra would be proud to have his name and face on the album cover, the cost is so great and that cost is deducted from the gross prior to royalties being based upon the net. Now, I said that very quickly. It, of course, is a rather complex formula that is used. Mr. KAISER. May I Mr. KASTENMEIER. But in its sense what we are saying is that those artists of very substantial name and who can have a commanding negotiating position, they negotiate their own performance royalty. Mr. WOLFF. That is correct. Mr. KAISER. No, no. Mr. WOLFF. Not performance royalty. No, no. Just on sales. Mr. WOLFF. It is not an equivalent. It is nowhere near an equivalent. Mr. KAISER. Mr. Congressman, may I say that one of the effects of the recording phenomenon is to put the artist in a posture where he has nobody to negotiate with except his immediate employer. The musicians union had one of its largest sources of work and compensation in the radio industry. We have no members playing for radio for all practical purposes today. We have nobody to negotiate with. And indeed, because of the political clout so importantly mentioned by Mr. Bikel, we are now in the fantastic posture of being denied by the Congress of the United States under criminal sanctions the right by any means-that is the language the statute has-to protest the failure and refusal of any radio station to engage a live musician. Now, we have nobody to negotiate with. When we negotiate with our employers in the recording industry, we can only negotiate with respect to their profits, to what they sell. They have no power to tell the broadcaster not to use our product. The broadcaster is free of any union pressures and any Sinatra pressures or anybody else's pressures. The broadcaster enjoys an immunity by virtue of the laws enacted by the Congress of the United States that can only be described as obscene. Now, that is the fact. And it is an incontrovertible fact. And I have heard many times this canard that Mr. Wolff referred to Mr. KASTENMEIER. What Mr. KAISER [continuing]. That they make money when they sell records. The broadcaster is not selling that record. The record is. The record company loses a lot of money on some of these records. Mr. KASTENMEIER. What law are you referring to? Mr. KAISER. I am referring to the Lea Act known as the anti-Petrillo Act, and let me tell you about this broadcasting industry. It is a matter of record: $1 million they accumulated way back there in the forties, $1 million appropriated by the broadcasting industry to go out and ruin the name of James C. Petrillo because way back then he recognized the fearsome, the frightening impact of the unbridled use of recorded talents on the employment opportunities of creative artists. They went out Mr. KASTEN MEIER. The reason I asked you that was to determine whether the Lea Act was a copyright law or some other |