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To the plaint of the broadcasters that the payment of royalties would hurt their programs it may be answered that there is a world of music on which the copyright has expired and which would not cost them a cent. It might be added that if the royalties charged by authors and composers on new music are actually high, it is because competition in the market (that is, among the broadcasters) justifies them. Copyrighted music is sold under exactly the same

conditions as patented radio apparatus.

[Crookston Daily Times, Saturday, October 24, 1925]

THE BROADCASTER PAYS

It was regarded by many outsiders as a joke when the song writers and publishers organized to protect their music from spoilation by radio broadcasters. Now they are making good.

Recently, the Society of Authors, Composers, and Publishers served notice on broadcasting stations that it would insist on payment for use of its music according to a set schedule. A typical schedule requires that a certain station pay a fee of $1,000 a year for broadcasting copyright music from its home studio, $25 an hour for broadcasting "remote control" concerts and an equal charge per hour for "courtesy programs" for which credit is given to business firms by way of advertisement.

This costs money. It may add $100 a day to the expense of operation, broadcasters say. But they are obliged to accept it, unless they are willing to cut out of their programs all copyright music, and that is just about impossible. It is coming to be the usual thing for professional performers to charge for their services. Altogether, broadcasting grows highly expensive. Thus the old question of who is to pay for it becomes more vital then ever. The present tendency is to let advertisers pay. But that may lower the quality of programs. Eventually some way may be found to make the listener pay.

[Redwood City Tribune, Redwood City, Calif., Tuesday, October 27, 1925]

We were dining and dancing in one of San Francisco's hotels the other night when the orchestra leader, a young college chap who knew one of our party, came over to our table for a chat.

He asked if we had noticed that the orchestra was repeating certain numbers over and over. He said: "The reason for this is because we are only playing music which is not copyrighted, as we are broadcasting over the radio and a royalty is charged for copyrighted numbers. This limits us to-night, and that is why we are repeating some of the pieces at intervals."

And so we were "face to face" with the problem which has been the subject of much legal controversy throughout the land, and which finally reached a temporary settlement in the United States Circuit Court of Appeals. This problem is: Shall the creator of musical works be obliged to permit the product of his brain to be broadcast, perhaps to the detriment of the work and the destruction of his other markets for it, without just recompense?

The American Society of Composers, Authors, and Publishers is fighting the efforts of broadcasters to infringe upon what it believes are the rights of its members.

There are well-known names among the members of the society. Some of them are: Irving Berlin, Earl Carroll, George M. Cohan, Con Conrad, Walter Damrosch, Mischa Elman, Fred Fisher, Leopold Godowsky, Percy Grainger, Art Hickman, Elsie Janis, Al Jolson, Fritz Kreisler, Chauncey Olcott, Sergei Rachmaninoff, Ted Shapiro, Albert Von Tilzer and Al Wilson.

All persons, firms, and corporations operating hotels, restaurants, cabarets, dance halls, theaters, radio broadcasting stations, and all classes of establishments in which music is publicly performed for profit may not use copyrighted musical compositions belonging to members of the American Society of Composers, Authors, and Publishers without a license issued by the society. The infringer is subject to a penalty of not less than $250, and not more than $5,000 for each infringement.

This is fair. The primary function of the society was to protect the rights of its members in regard to the public performance of their works. After eight years of

continuous effort and much litigation by the society in behalf of its members, the courts of the nation sustaining them from coast to coast, the commercial amusement interest yielded to the right and the law.

Then came a new problem-radio. With unprecedented rapidity this form of amusement became almost universally popular. About 4,000,000 sets are now in use, and the radio audience numbers some 12,000,000 persons.

The writers of musical works, already having seen their product the basis for the creation of the gigantic phonograph industry; the backbone of the motionpicture theater, dance hall, and cabaret forms of entertainment, now witnessed their product becoming the mainstay of a tremendous new amusement structure which in its very building threatened their earning capacity by satisfying through this new means the natural human appetite for music.

Then came the question: "Does broadcasting constitute public performance?" The society called a conference of the broadcasters. The outcome was a statement by the broadcasters to the effect that (1) their entire business was in an experimental stage, (2) that they could not afford to increase the burden of their already great expense by paying anything at all for the right to use copyrighted music in their performances, and (3) that they should not be required to pay fees for the music in as much as by using it in their programs they "popularized" it, thus rendered a reciprocal service to its creators.

The society then went to the courts, where its position was sustained; broadcasting was held to be "public performance" and for "purposes of profit."

It is well to remember that radio broadcasting is a performance for profit, even though fees are not collected from the listeners, and that, though broadcasting was unknown when the copyright law was passed in 1909, yet the obvious intent of that law was to include such a device as radio. It makes little difference whether the audience is under one roof or under many.

STATEMENT OF MR. OTTO A. SCHLOBOHM, WASHINGTON ATTORNEY FOR THE SHUBERT THEATRICAL INTERESTS

Mr. SCHLOBOHм. Gentlemen of the committee, my name is Otto A. Schlobohm. I am Washington attorney for the Shubert theatrical interests of New York City. I have been requested by Mr. William Klein, the general counsel for that company and counsel for other musical comedy producers, to submit a statement covering the views of the musical comedy producers on the Dill-Vestal bill to amend the copyright law, in respect to the use by broadcasters of copyrighted music. Mr. Klein is unable to be here and has asked me to submit this statement, so that it may be before you gentlemen when you consider the record.

Briefly, the question of the radioing of musical compositions has heretofore been considered as a matter between the authors and composers on the one hand and the broadcasting organizations on the other, with the general public between the two. There is a third interest which we do not believe has heretofore been considered. This third party primarily interested is the producer, whose genius and capital makes possible the public presentation of musical comedies. The producer believes that his productive genius should receive protection at least equal to that afforded to the author and

composer.

Should this Congress determine that the author and composer should be given by statute the right to make an arrangement for the radio broadcasting for profit of their work used in musical comedies, in the production of which he has spent thousands and sometimes hundreds of thousands of dollars, the producer believes that right should also be extended to him. We are not here as proponents of this bill, but should this committee consider the Dill-Vestal bill favorably we wish you would consider the rights of the producer. We believe that his productive and creative genius should receive protection.

Representative HAMMER. Mr. Chairman, there has been a lot of material offered here, and no action has been taken as to whether it should go in the record or not. There were 40 pages offered here a while ago. It would cost hundreds and hundreds of dollars to print all of this matter. I have no objection to putting them in, but there must be a limit somewhere.

The CHAIRMAN. I think you are quite right.

Representative HAMMER. Furthermore, it is not guaranteed, when they offer it, that it will be published. I think the committee should take that into consideration. I do not see the necessity of publishing all of that material. There were 40 pages offered a little while ago, as I said, which would amount to almost 40 pages of print.

Representative BLOOM. There has never been any objection to anything going into the record. If the American Society thinks it can give the committee any information that will be beneficial to their case, I think they should have that privilege. There has been no objection on our part to the other side putting in anything in the record that they wanted to. Mr. Mills was kind enough to say he left out a lot of it because it is already in the record. At this time I do not think there should be any objection to anything that either side thinks will help them in their case before the committee.

The CHAIRMAN. Do you not think a good deal of this newspaper editorial matter is unnecessary?

Representative BLOOM. I think the editorials are very important at this time, Mr. Chairman. They are editorials on this propaganda that seem to be the principal bone of contention, where people have been told to write in about this particular legislation. I think these editorials that have been submitted are not alone instructive to the committee, but to the entire membership of the Senate and the House.

Representative PERKINS. Are they not editorials on propaganda, rather than on the bill?

Representative ВLOOM. They are editorials on the propaganda, but the propaganda has gone into this record. It is an answer to the propaganda that has gone in.

The CHAIRMAN. Suppose we leave it to an executive meeting of the committee.

Representative HAMMER. I did not understand everybody was going to be given the right to put anything in the record they please. If that is true, someone may dump in 5,000 pages. We can not let down the bars and guarantee that they may put anything in they want to. Suppose Senator Dill comes along and says he has thousand pages he wants to put in the record. Of course, he will not have that amount of stuff, but he would have that right, if we are going to let the bars down in this way.

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As far as those editorials are concerned, I have read some of them. One of the New York papers published an editorial the other day on one side of the question, and then in less than 10 days the same paper published an editorial the other way. We can not always tell by the editorials from 40 different newspapers how important they may be.

Representative BLOOM. There has been no objection to anything that has been offered for the record, and I do not think any objection ought to be raised at this time.

Representative HAMMER. I just wanted to state that we can not guarantee that everything will go in. Nobody has examined this. It has not gone in by unanimous consent. No motion has been put

to the committee and no action taken by the committee. We are not going to let down the bars and throw in anything they want to, with the understanding that it will be printed.

Representative BLOOM. There has been no objection to anything going in.

Representative HAMMER. There has been no permission.

Representative BLOOM. Absolutely. The chairman has put the question, "Without objection, it will go into the record." Representative HAMMER. Not while I was here.

Mr. SCHLOBоHм. I should like to file this document.

Representative HAMMER. I think he should have that privilege. I do not think we wish to bar that out.

The CHAIRMAN. Without objection, it may go in the record. (The document referred to is as follows:)

This statement is submitted by Mr. Otto A. Schlobohm, Washington attorney for the Shubert theatrical interests on behalf of Mr. William Klien, general counsel of the Shubert theatrical interests and counsel for other producers of musical comedy and drama in the city of New York.

The producers of musical comedies do not favor but are opposed to the broadcasting of their productions or musical numbers from them. They believe, however, that if, notwithstanding their opposition, Congress should make provision therefor they should have a right coextensive with that of the copyright owners to control the broadcasting of musical comedy numbers.

Since this proposition is being presented to Congress for the first time, the views of the Messrs. Shubert are here set forth at length.

Messrs. Shubert from time to time determine to make a presentation of a new musical comedy. They then engage an author to write a book of some sort for them, or they have a book which they own, having acquired the same in Europe or elsewhere, and then bring in an author to adapt the same for the American stage. They then engage a composer or composers to write the music for such a play, and then the book is ready for use, subject to being whipped into shape by the director of the production, known as the producer.

While the author and composer are collaborating upon the book, rehearsals generally have begun, and enormous sums of money of the producers is involved in such a production. The money and productive genius of the producers, together with the book and music of the author and composer, result in a musical comedy. Indeed, ofttimes the producer rewrites the book and excises material as well as adds material to the book.

The lyrics and music thus completed become the musical comedy and the producer by virtue of a contract theretofore made is given the right to produce this musical play upon the payment of certain royalties. The copyright to the music and to the lyrics are the property of the composer and the author.

Ordinarily the producer is given the right to present such a play so long as he does so a given number of times a season and then under the contract it reverts to the author and composer who thereafter have a right to negotiate it in any way they see fit.

Though the exclusive rights to the use of the said music are granted to the producer for the said period, the composers, usually through their representatives or organizations, make arrangements whereby such music is rendered in motionpicture houses and in cabarets and restaurants, and all profits that arise from such use go to the author and composer without any consideration being given to the producer whose capital has made the production possible.

Again, if the author or composer see fit to make an arrangement with a radio company for radioing such music the emoluments growing from such rendition go to the author and composer because the producer merely has the stage producing rights.

The contention of the producer is that since he invests thousands and often as much as a hundred thousand dollars in some productions, and actually produces the attraction, puts his brains and time, efforts and money into it, he is as much an author and composer as the author or composer himself is, and such pro

ducer should have an interest in the copyright, coextensive with the author and composer. The view of the producer is that this should not be a matter of contract but that it should be a matter of primary right.

Frequently the producer loses his rights to the presentation of the play because it is no longer profitable to produce it in a first-class theater. Very often he spends a very substantial sum of money to make a success of one of these musical comedies and it fails. Thereafter the author and composer draw all the profits and benefits whatever they may be, from any of the music or from any of the song hits that might have been in the show, and the producer who made possible its being rendered at all and who advanced the money has nothing. Even if a show is a failure the producer should have the same rights in the musical comedy as the author and composer because of the foregoing, and the producer's copyright should be coextensive with that of the author and composer.

Even in the case where a composer and author have written a musical comedy not to order, and a producer desires to present it, the same question arises and should be likewise considered. The producer makes an expensive production, engages a cast with high-priced principals and chorus, produces the attraction as aforementioned, and expends money on scenery, properties, etc., and he should not be limited merely to its first-class production in first-class theaters. By reason of his having spent such a large sum of money, performing the work thereon, ofttimes making situations in the play that the author never thought of, and making possible the success of the musical comedy, or having made failure and having lost more money, he should be entitled to a copyright coextensive with the author and composer and to a portion of all emoluments that come, grow, or arise by reason of the by-products or future use of any kind of said copyrighted musical comedy or parts thereof.

Many musical compositions gain their popularity and success because of their use in a musical comedy. The author and composer of lyrics and music for a musical comedy would be helpless if the musical comedy were not produced and if it were not for the producer whose genius and money make the production possible.

During the time that a musical comedy is a success and is being presented by a producer on the stage with living actors, no music and no part of this musical comedy should be allowed to be broadcast in the air by the radio corporations. Indeed, because of corrections in the manuscript by the producer many contracts contain provisions that any additions to the book or lyrics made by the producer revert to and belong to the author and composer. Therefore, in no event should broadcasting be allowed without an arrangement with the producer, because the presentation of music from an opera or comic opera being entirely sung over the radio will detract from the producer's rights since invisible audiences amounting to hundreds of thousands, perhaps, will be listening to the music and perhaps to the entire performance, and will not, because thereof, go to a theater in which the performance is being given.

Except only upon consent expressly given in writing by the producer, no author or composer should under any circumstances have the authority to grant any rights to a broadcasting station to radio music from a musical comedy nor should Congress expressly grant any rights to a broadcasting station to broadcast over the radio any copyrighted musical comedy music except with such consent of the producer.

The producers of musical comedy are unalterably opposed to the broadcasting of any music or any play produced or presented by them. If, notwithstanding the foregoing, Congress should be of the opinion that broadcasters should have that right, then under no circumstances shall the broadcasting of musical comedy numbers be without the written consent. of the producer first had. And in no event should the author and composer alone have the right to grant to any broadcasting company for compensation or otherwise the right to broadcast the music and lyrics of any play or attraction that has been produced without first obtaining the written consent of the producer.

FURTHER STATEMENT OF GENE BUCK, PRESIDENT AMERICAN SOCIETY OF COMPOSERS, AUTHORS, AND PUBLISHERS, MEMBER OF EXECUTIVE COMMITTEE OF THE AUTHORS LEAGUE, AND DIRECTOR OF THE AMERICAN DRAMATIST

Mr. Buck. Mr. Chairman, apropos of Judge Hammer's remarks concerning a voluminous record, I wish to bring to the attention of the committee this fact: I do not know of any subject in the world to-day

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