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COPYRIGHT LAW REVISION

MONDAY, MARCH 20, 1967

U.S. SENATE,

SUBCOMMITTEE ON PATENTS,

TRADEMARKS, AND COPYRIGHTS OF THE

COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to call, at 10:05 a.m., in room 3302, New Senate Office Building, Senator Quentin Burdick presiding. Present: Senators Burdick, McClellan (chairman of the subcomittee), and Scott.

Also present: Thomas C. Brennan, chief counsel; Edd N. Williams, Jr., assistant counsel; Stephen G. Haaser, chief clerk, Subcommittee on Patents, Trademarks, and Copyrights; George S. Green, professional staff member, full committee; and Horace L. Flurry, representing Senator Philip A. Hart.

Senator BURDICK. Senator Hartke, I believe you have some witnesses to introduce this morning.

STATEMENT OF VANCE HARTKE, A U.S. SENATOR FROM THE STATE OF INDIANA

Senator HARTKE. Good morning, Mr. Chairman, it is good to be with you again this morning. It is getting to be a habit with me to be with you in this fashion. The other day I introduced to you the people who are writing in the field of books and publications and today it is my privilege to introduce the people who are in the music side, the counterparts, who are in the same position, basically, as those in the literary field.

It is especially my honor to present to you Mr. James Thomas, who is a resident of Winona Lake in my home State of Indiana, appearing here in behalf of the American Society of Composers, Authors, and Publishers.

It is also my pleasure to present to you John H., as it says here, Mercer, but better known as Johnny Mercer, and Cy Coleman, a composer, pianist, and author in his own right.

It is my great pleasure to introduce these gentlemen to you. At the same time, I would be remiss if I did not call attention to the fact that one of the people responsible for my having this opportunity is an old friend of many of us on Capitol Hill, Myer Feldman, better known as Mike, who has worked so hard in many fields of legislation. It was my pleasure to work with him on those things dealing especially with medicare early after the election of President Kennedy in 1960. We

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all know of his famous work in the White House. He is now out in the private field, making money. We are delighted to see that, too. Thank you, Mr. Chairman.

Senator BURDICK. Thank you, Senator.

Mr. Thomas?

STATEMENTS OF HERMAN FINKELSTEIN, GENERAL COUNSEL, AMERICAN SOCIETY OF COMPOSERS, AUTHORS, AND PUBLISHERS (ASCAP); JAMES THOMAS, PRESIDENT, RODEHEAVER CO., MUSIC PUBLISHER, CHURCH MUSIC PUBLISHING ASSOCIATION; JOHNNY MERCER, COMPOSER, AUTHOR; CY COLEMAN, COMPOSER AND PIANIST; ACCOMPANIED BY MYER FELDMAN, ATTORNEY

Mr. THOMAS. Mr. Chairman, my name is James Thomas. I reside in Winona Lake, Ind. I was born and raised in Virginia and am a graduate of Randolph-Macon College, Ashland, Va.

Since 1955 I have been president of the Rodeheaver Co. in Winona Lake, succeeding the late Homer Rodeheaver, with whom I had been associated for many years. I am interested in community service and serve as head of the Rodeheaver Boys Ranch of Palatka, Fla., a home for worthy boys, in addition to being a Rotarian and a Shriner.

Mr. Chairman, it is a privilege for me to appear before the subcommittee to support the provisions of S. 597 which are being considered by the subcommittee at this time.

The Rodeheaver Co. was founded in 1910 by Homer Rodeheaver who, as I am sure you all know, was famous as Billy Sunday's song leader for 20 years. He played a similar role with Billy Graham in the early days. In fact, at the present time our firm publishes the Billy Graham Songbook. Our company is recognized as a leading publisher of religious music.

We publish hymns in many languages, including Japanese and Korean.

We have published many successful hymns, such as "The Old Rugged Cross," and "Beyond the Sunset," which have attained worldwide appeal and have been translated into more than 20 languages. Other hymns which we are proud to publish include "Be Thou Near," "Brighten the Corner Where You Are," "An Evening Prayer," "The Glory of His Presence," "He Lives," "I Never Walk Alone," "My Father Watches Over Me," "Only Believe," "Pardoning Grace," "Speak My Lord," "Take Up Thy Cross," "With Thy Spirit Fill Me" and thousands of others.

"In the Garden," recorded by Ernie Ford, has had many performances on radio, television, and in jukeboxes. That is also true of such recent works by Gloria Roe as "Abiding Love," "So Great Salvation" "Miraculous" and "Does It Make Any Difference to You."

The writers of our published works-or their estates-who are members of ASCAP, share equally with us in all performance royalties. No publisher member of ASCAP is permitted to receive any part of the writer's 50-percent share of royalties for performances or otherwise.

I understand that there has been a suggestion that publishers should not participate in performance royalties. This suggestion does not come

from writers; it comes from jukebox operators. It ignores the gamble a publisher takes when he invest his money, time, and organization in launching a song. Every song that becomes popular represents a substantial outlay by a music publisher. In the old days-before radio, television, and jukeboxes-he was compensated by sales of sheet music. Today those sales have all but disappeared.

It is strange that the jukebox operator complains about the publisher receiving performance royalties, when the writer knows that it is in his interest to share these royalties equally with his publisher. Unlike the publisher, the jukebox operator does not gamble on new works. He invests only in those that have become very successful. Our records show that only two out of every 100 songs we publish survive. But for the occasional successful song, we could not publish the others. I wish to assure this committee that if jukebox operators pay for the music they use and from which they profit, we, as publishers will have an incentive to make the investment necessary to have more songs of the type we publish, played in jukeboxes. The jukebox operatorssupported by the manufacturers-resent paying only a small fraction of their receipts to the writer and copyright owner. They even complain about the writer sharing his royalties with the publisher. The writers, however, recognized that the publisher loses money on most songs, and could not stay in business without the income from those few songs that are successful.

I submit, Mr. Chairman, that the question for this committee to decide is whether the jukebox exemption should be repeated. The present-day electronic jukebox, capable of reproducing music faithfully, did not come into being until long after the 1909 law. Before the 1930's there was no jukebox industry. That industry takes in over $500 million annually from the use of music. The jukebox operators now concede that they should pay something. The amount should bear some relation to the value of performances in the boxes.

ASCAP and its members expect only what is fair. They cannot be unreasonable because any user may apply to the court for a determination of a fair rate.

I shall leave a discussion of the procedures to our counsel. Before concluding, let me express the earnest hope that the copyright law will be revised at this session of Congress.!

We are grateful to the Register of Copyright, the members of the House subcommittee and the members of this committee for their earnest attention to a branch of the law that is so much in need of updating. I know that all who are really interested in American music from a creative standpoint are in favor of this revision.

Thank you.

Senator BURDICK. Thank you, Mr. Thomas.

There is just one part of your statement I would like to inquire about. On page 4 you say, at the middle of the page:

ASCAP and its members expect only what is fair. They cannot be unreasonable because any user may apply to the court for a determination of a fair rate. Now, is it not correct that the application has to be made to a court in New York.

Mr. FINKELSTEIN. Mr. Chairman, could I answer that?

Mr. THOMAS. Mr. Finkelstein could answer that for you.

Senator BURDICK. Yes.

Mr. FINKELSTEIN. I think really it is a question that might be best addressed to a lawyer, Mr. Chairman, so if it is all right I would like to answer it.

Senator BURDICK. I said all right.

Mr. FINKELSTEIN. The answer is "Yes," that application would have to be made in New York, because the consent decree under which the application is made is in the New York court.

Senator BURDICK. Then if a small jukebox operator in Spring Brook, N. Dak., would have to go to New York, he would not have a very effective remedy, would he?

Mr. FINKELSTEIN. Mr. Chairman, I suggested at one time that it might be appropriate to have a court consisting of three judges, one from each of the time zones, who might go from one area to the other. There is just no provision for that kind of thing under the present law. This judgment is in the Federal court in the State of New York, but ASCAP would have no objection to some other method or any other place.

Senator BURDICK. I understand, but under the present law one who has a complaint would have to go to the State of New York. There is no other redress.

Mr. FINKELSTEIN. That is right, Mr. Chairman.
Senator BURDICK. Thank you.

Thank you, Mr. Thomas, for your able testimony.
Who is next in your list?

Mr. FINKELSTEIN. Mr. Chairman, I would like to present next, if I may, Johnny Mercer, whose songs are known to the world at large and serve as a much better introduction than I can give. He is a fourtime Academy Award winner, an unsual record.

I would like to present Johnny Mercer.

Mr. MERCER. Thank you.

Mr. Chairman, members of the subcommittee, my name is John H. Mercer. I reside in Los Angeles, Calif. I was born in Savannah, Ga., attended the Woodberry Forest School in Virginia, and have spent most of my professional life as a songwriter in California.

Among the songs I have written, with which you may be familiar are four Motion Picture Academy Award winners: "On the Atchison, Topeka and Santa Fe" (1946), "In the Cool, Cool, Cool of the Evening" (1951), "Moon River" (1961), and "Days of Wine and Roses" (1962); also, "Laura," "Blues in the Night," "Autumn Leaves," "That Old Black Magic," "Lazy Bones," "Accentuate the Positive," "And the Angels Sing," "Come Rain or Come Shine," "Dearly Beloved." "Fools Rush In," "GI Jive," "I'm an Old Cow Hand," "I'm Old Fashioned," "Tangerine," "One for My Baby," "You Were Never Lovelier," "Too Marvelous for Words," "When the World Was Young," and others. Of course I have written many that have had little success. That is true of all songwriters.

I wish to express the appreciation of the entire songwriting fraternity for the splendid work done by the House Judiciary Subcommittee. Mr. Abraham Kaminstein, Register of Copyrights and his staff, and Congressman Robert Kastenmeier and the members of his committee, and the very serious attention that I know is being given to the subject of copyright revision by both committees of the Senate

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