Senator BURDICK. Like a performer.

Mr. ANELLO. That is correct, under the Constitution. As I read the Constitution, it was designed to protect intellectual and creative writings. When somebody takes something created by another and uses that material, I do not think he is creating in the terms of the Constitution.

Senator BURDICK. In other words, when a performer gives his rendition of a song in a different manner than another performer, that is not originality within the meaning of the Constitution?

Mr. ANELLO. Not within the meaning of the Constitution; no, sir. I think it is very helpful to the song writer and I believe one rendition of a song may make a song in contradiction to another rendition. But I do not believe this is creative writing under the terms of the Constitution.

Senator BURDICK. In other words, the performer uses the same words and same music but does it a little differently.

We had a performance here yesterday of "Mickey Mouse." You do not say there was any originality?

Mr. ANELLO. I don't say there was not originality.

Senator BURDICK. Within the meaning of the Constitution.

Mr. ANELLO. But all things are not copyrightable. There may be other remedies, but not under the copyright law.

I certainly think Miss London is very original in almost any song that she sings, and I am a fond admirer. The same with Miss Streisand. Certainly "Funny Girl" would not have been the same without her, I am quite sure of that. But originality is not necessarily consonant with copyrightability.

Senator BURDICK. And your next premise seems to be, that playing records over the airwaves is more helpful than harmful to the performer; is that right?

Mr. ANELLO. On this score, Mr. Chairman, there is no doubt in my mind whatsoever. How many people would have known of Julie London had it not been for her exposure over radio or television, or Mitch Miller? Many other artists, outstanding performers-we are not deprecating what they have contributed, but a good part of their popularity is directly attributable to the exposure they have received.

For example, Barbra Streisand in one night on television, why, her performance on Broadway would have to run 10 years, at least 10 years, before she would reach the audience she had in one night. I cannot help but feel that this has benefited them, and radio, and television. I don't say we have not benefited. I say there is enough benefit on both sides to let sleeping dogs lie.

Senator BURDICK. The recordmakers contend that as long as they can hear it free over the radio and television airwaves, they will not buy the product.

Mr. ANELLO. Well, that is not consistent with their expanding sales. Perhaps their expanding sales have not resulted in a corresponding carrying over of those sales into net, but that is not our fault. I think that if their sales of records had shown a decrease, then they might have had a more substantial argument along this line. But the truth of the matter is that their sales have increased substantially. Mr. Krasilofsky in his book indicates that by 1970, they will have reached a billion dollars a year. That is about a third increase in the next 4 years,

or 3 years. So I do not see how anyone can say that playing a record on radio and television has hurt them.

Perhaps what we should do-I say this is jest, Mr. Chairman-is to have a regulation that you cannot announce the name of the record or who performed it. If we did that, then this might be detrimental to them. But, of course, we do not take that seriously. We have no such intention.

Senator BURDICK. Well, Mr. Anello, it is always good to hear your testimony. You have made a contribution and we will give your views very careful consideration.

Senator Fong?

Senator FONG. Mr. Anello, on page 4, you said, "The Constitution, in article I, clause 8, provides Congress shall have the power to promote the progress of science and useful acts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.""

Do I gather from this statement that the recording artist is not an author or an inventor?

Mr. ANELLO. That is right, sir.

Senator FONG. This is your contention?

Mr. ANELLO. That is right, sir.

Senator FONG. And this goes far beyond what the Constitution says? Mr. ANELLO. I think there is a question about whether or not records can be copyrighted under the Constitution. There is a difference of judicial opinion on this. I think a few cases have indicated to the contrary, and some have indicated on both sides.

Judge Hand, in a rather enlightened opinion in New York many years ago, the second circuit, indicated that the Congress could extend copyright to a record if it so chose, but it had not under the existing law.

On the other hand, there are other decisions that seem to indicate that the record manufacturer is not an inventor or an author within the terms of the Constitution and that hence, Congress would be powerless to extend copyright protection.

Senator FONG. Now, should the Congress disagree with you on that and feel that this Constitution clause does take in the recording artist, you say that it would create a lot of complications; is that right?

Mr. ANELLO. Yes, sir. Well, it would create, for one thing, Senator, a new music, one or two, at least, music licensing societies because, obviously, the station could not pay each individual performer. The performers would have to band together and arrive at some formula whereby they would cut up, so to speak, the money that was paid into this treasury.

Secondly, I assume there would have to be some kind of a recordkeeping by the station so that one might determine who got what out of this pot.

Certainly, if I were to sing, I should not get the same amount that Frank Sinatra would if he were to make a record, because obviously, there is a wide disparity in our popularity. These are the complexities to which I refer, Senator.

Senator FONG. Yes. Do you have, as an organization, any contracts with any composer that in the playing of their music, you do have to pay something?

Mr. ANELLO. Oh, yes, sir; we have contracts with ASCAP, with MBI, and with SESAC, and these have evolved over a period of years, whereby we pay to the societies a fixed percentage of our gross, minus certain exemptions each month. How these are distributed are within the purview of ASCAP, BMI, and SESAC. They vary, how these are funded, but we do have to maintain records periodically, indicating which records we have played and how many times.

Senator FONG. I see. So that money goes to the composer?
Mr. ANELLO. Yes, sir.

Senator FONG. In the final analysis, through the ASCAP?
Mr. ANELLO. Yes, sir.

Senator FONG. If that could be done and should the committee decide that there is such a right in the recording artist, would it further complicate your keeping of records?

Mr. ANELLO. Well, certainly, sir, two records are more complicated

than one.

Senator FONG. Yes; but would it complicate it very much more? Mr. ANELLO. There is an awful lot of paperwork right now in broadcasting.

Senator FONG. I can understand this.

Mr. ANELLO. With the various regulatory agencies, the Federal Trade Commission, the Federal Communications Commission, the music licensing societies-there is a tremendous amount. To add adds to the burden.

Now, I would not say it is impossible; no, sir. It is not. The burden would fall most heavily, though, on the small station operated by a husband and wife and an engineer and probably a salesman, because records are records, whether you are a multimillion-dollar radio property or a radio property that grosses $25,000 a year.

Senator FONG. But from your standpoint, you would rather pay it at the source, when they press it into the record.

Mr. ANELLO. Oh, yes; if we could ever get clearance at the source, that would be the millenium.

Senator FONG. Would you mind paying a little higher price at the source?

Mr. ANELLO. I cannot say that, Senator, whether we would or not. But I do say that the clearance at the source for both radio and television is something we have long striven for and someday hope to achieve. Perhaps the price would be a little more at the source. Senator FONG. Thank you.

Senator BURDICK. Mr. Anello. I have one more question.

I know you have a busy legal life, but I wonder if you have at your fingertips or can acquire some citations on this constitutional question for us?

Mr. ANELLO. Oh, yes, sir. Miss Ringer has written a very excellent. article on this whole question under her studies, where she reviews all the authorities. In her opinion, she thinks the constitutional arguments are a little weaker than they were many years ago because of some of the judicial opinions. But I shall be more than glad to submit what will probably be a paraphrase of her excellent article.

Senator BURDICK. Well, if her excellent article can be incorporated by reference in the record, we would appreciate it.

STATEMENTS OF BURTON LANE AND LEON KELLMAN, AMERICAN GUILD OF AUTHORS & COMPOSERS

Mr. LANE. My name is Burton Lane. I reside in New York City. I am president of the American Guild of Authors & Composers. I have been a professional songwriter for over 38 years. I have written for the Broadway stage as well as for motion pictures. Two wellknown Broadway shows composed by me, which you may remember, are "Finian's Rainbow," which incidentally has just been revived by the City Center in New York, and "On a Clear Day You Can See Forever." Some of the songs I have written include: "Everything I Have Is Yours," "I Like New York in June (How About you?)," "How Are Things in Glocca Morra?", "What Did I Have That I Don't Have?", "Old Devil Moon," and "On a Clear Day You Can See Forever."

The American Guild of Authors & Composers is an association of over 2,000 songwriters, composers, and lyricists. Last year we celebrated our 35th anniversary. The organization was formerly called Songwriters Protective Association. Our functions include the collection of royalties for our members, from over 1,000 music publishers, the checking and processing of royalty statements, and the auditing of music publisers on behalf of our members.

We have permanent offices in New York and California, and over 800 of our members live and work on the west coast.

We have a uniform popular songwriters contract, a form of contract formulated by us in 1947 by negotiation with the music publishers' trade association in the popular music field. This contract has been voluntarily signed by thousands of writers and publishers, and represents the highest standard of protection for songwriters that has yet been devised. Over 1,000 publishers are now voluntary signatories to our basic agreement, which defines elements of protection for songwriters. These contracts have had the effect of setting modern standards of fair dealing in the relations between songwriters and publishers and have profoundly and favorably affected the entire music industry. We have a copyright renewal service which notifies writers, and descendants of deceased writers, of the imminence of the renewal term, so that copyright renewals can be obtained on time, and we file copyright renewals on their behalf if they so desire. We have group Blue Cross and Blue Shield insurance for our members and are contemplating the institution of a group major medical plan for them. We serve our members in many ways for their economic and personal well-being.

Our members include writers of compositions of all types. Among our members are such writers as Virgil Thomson and Elie Siegmeister in the serious music field, Henry Mancini and Johnny Mercer in the motion picture field, Richard Rodgers and Alan Jay Lerner in the theatrical field, and Bob Dylan and Mark Barkan in the folk music and rock-and-roll field.

I refer to these names because they are famous names. I could mention hundreds of other members of whom you have never heard-professional writers who make a modest living as songwriters, but who have never been wealthy or secure.

Some of our members are the widows and children of deceased songwriters. We are cognizant of our obligation in protecting the rights of widows and children. In many cases they are solely dependent upon the royalties of the songs written by their deceased husbands and fathers for their income.

The present bill for copyright revision-S. 597 in this chamber-is a great step forward and a massive achievement in American copyright law and in world copyright law. We are happy to express our gratitude for the talents and devotion of the Register of Copyrights, Abraham L. Kaminstein, and his staff, notably George Carey, Abe A. Goldman, and Barbara Ringer. We are happy also to express our admiration for the monumental efforts and capacity of Mr. Kastenmaier and the other members of the House Judiciary Subcommittee who so masterfully dealt with this bill in its House form.

We enthusiastically support the great bulk of the provisions of the bill, although we have certain suggestions for changes which we feel are of material importance. I will mention some of these. Others are mentioned in the statement of Leon Kellman, our general counsel, and in the statements of the representatives of other writer groups, publisher groups, and performing rights organizations, before your subcommittee.

We are happy with the extension of the term of copyright to encompass the life of the author plus 50 years, and the end of the necessity to renew one's copyright or have it forfeited. We are grateful for the elimination of the outrageous jukebox exemption. We are pleased by the protection accorded to sound recordings against unauthorized "dubbing." We are pleased with the ending of the privilege of nonprofit radio and television broadcasters to perform, without payment of royalties, the same compositions that are broadcast and paid for by commercial broadcasters. The electricity which enables these programs to be transmitted is paid for. Why then should the programs themselves not be paid for?

We are concerned about weaknesses in the copyright protection provided in connection with the great new broadcasting industry called CATV. We support the efforts of the performing rights societies to bring about clarification and strengthening of these provisions in favor of the creators of the material which is the lifeblood of this industry. We are opposed to this or any other commercial use of copyrighted material without payment.

We are disturbed by the dangerous privileges given to educators in making copies of copyrighted material in the "fair use" provisions (sec. 107 of the bill). We strongly concur with the points that were made by Mr. Wattenberg for Music Publishers Association in his statement before you, with respect to these privileges. This fair use provision could enable an educator, school or educational system to make an unlimited number of copies of musical compositions without payment of royalties. Many of the composers of serious music who are members of our organization depend for a significant part of their income, on the sales of copies of their music for school use. These