A RECORDED PERFORMANCE IS CREATIVE AND WITHIN THE COPYRIGHT PROTECTION OF THE CONSTITUTION

The creativity of a performer is difficult to describe through the written word, but it is equally difficult to be ignored when demonstrated. Julie London, in testifying before the Subcommittee on Patents, Trademarks and Copyrights of the Senate Judiciary Committee on April 11, 1967, stated:

"Whatever creative talent I have lies in my ability to 'reach' an audience with the way I interpret a song . . . In my own case, I study a song and ask myself what can I do with it that will give it individuality. What sort of mood do I want to create and how shall I create it?"

Mitch Miller, on that same day, in describing creativity said "the performer adds that certain ingredient to a song which creates an emotional reaction in the public which listens to records."

Erich Leinsdorf's statement, describing Bach's music observed:

"For instance, the person who sits at the keyboard instrument, either the harpsichord or the organ, has only the barest indication of what the harmonies ought to be, and the way he fills them in is his own effort, his own creativity." That the recording performer is creative has been acknowledged by the courts, by Congress, by the U.S. Copyright Office and, indeed, even by those who oppose the payment of a performance fee. In the celebrated Waring case the court, while finding that a recorded performance was not protected by the federal copyright law, clearly and unequivocally acknowledged the creative role of the performer. It held:

"Does the performer's interpretation of a musical composition constitute a product of such novel and artistic creation as to invest him with a property right therein? It may be said that the ordinary musician does nothing more than render articulate the silent composition of the author. But it must be clear that such actors, for example, as David Garrick, Mrs. Siddons, Rachel, Booth, Coquelin, Sara Bernhardt, and Sir Henry Irving, or such vocal and instrumental artists as Jenny Lind, Melba Caruso, Paderewski, Kreisler, and Toscanini, by their interpretations, definitely added something to the work of authors and composers which not only gained for themselves enduring fame but enabled them to enjoy financial rewards from the public in recognition of their unique genius; indeed, the large compensation frequently paid to such artists is testimony in itself of the distinctive and creative nature of their performances. The law has never considered it necessary for the establishment of property rights in intellectual or artistic productions that the entire ultimate product should be the work of a single creator; such rights may be acquired by the one who perfects the original work or substantially adds to it in some manner. . . . A musical composition in itself is an incomplete work; the written page evidences only one of the creative acts which are necessary for its enjoyment; it is the performer who must consummate the work by transforming it into sound. If, in so doing, he contributes by his interpretation something of novel intellectual or artistic value, he has undoubtedly participated in the creation of a product in which he is entitled to a right of property, which in no way overlaps or duplicates that of the author in the musical composition. All that need now be decided is that such a property right inheres in the case of those artists who elevate interpretations to the realm of independent works of art." 15

Judge Learned Hand was equally convinced of the contribution made by the performer in the rendition of a musical composition, and had no doubt that a performance or rendition could properly be brought within Congress' powers to grant copyright protection. In the Capitol Records case, he stated:

"I also believe that the performance or rendition of a 'musical composition' is a 'Writing' under Article I, § 8, Cl. 8 of the Constitution separate from, and additional to, the 'composition' itself. It follows that Congress could grant the performer a copyright upon it, provided it was embodied in a physical form capable of being copied. The propriety of this appears, when we reflect that a musical score in ordinary notation does not determine the entire performance, certainly not when it is sung or played on a stringed or wind instrument. Musical notes are composed of a 'fundamental note' with harmonics and overtones which do not appear on the score. There may indeed be instruments-e.g. percussivewhich do not allow any latitude, though I doubt even that; but in the vast number of renditions, the performer has a wide choice, depending upon his gifts, and this makes his rendition pro tanto quite as original a 'composition' as an

15 194 Atl. 631, 634-35 (1937) (citations omitted).

'arrangement' or 'adaptation' of the score itself, which §1(b) makes copyrightable. Now that it has become possible to capture these contributions of the individual performer upon a physical object that can be made to reproduce them, there should be no doubt that this is within the Copyright Clause of the Constitution." 18

The Copyright Office is equally convinced of the creativity of the record performer and the propriety in granting copyright protection. Barbara Ringer, Assistant Register of Copyrights, in her excellent study of copyright problems regarding sound recordings states:

"It appears settled that the contributions of performing artists to a sound recording constitute an original intellectual creation, and are therefore eligible for common law copyright protection. There are no decisions denying this proposition and it has been strongly reiterated in recent cases." "

Abraham Kaminstein, Register of Copyrights, agrees with Miss Ringer. In his testimony before the House of Representatives in 1965 regarding the revision of the copyright law, he stated:

"Let me say plainly there is no doubt in my mind that recording performance represent the 'writings of an author' in the constitutional sense, and are as fully creative and worthy of copyright protection as translations, arrangements. or any other class of derivative works. I also believe that the contributions of the record producers to a great many sound recordings also represent true ‘authorship' and are just as entitled to protection as motion pictures and photographs. No one should be misled by the fact that in these cases the author expresses himself through sounds rather than words, pictures, or movements of the body. There is a great deal of case law in this field, and it is in full support of the principles embodied in section 112." 18

The House Committee on the Judiciary is also convinced of the propriety of granting copyright protection to performers in sound recordings. Although not at this time willing to grant such protection, the Committee stated:

"The committee believes that the [copyright] bill, in recognizing rights against the unauthorized duplication of sound recordings but in denying rights of public performance, represents the present thinking of other groups on that subject in the United States, and that further expansion of the scope of protection for sound recordings is impracticable. This conclusion in no way disparages the creativity and value of the contributions of performers and record producers to sound recordings, or forecloses the possibility of a full consideration of the question by a future Congress." 19

Indeed, even representatives of the jukebox industry which now uses millions of phonograph records without compensating the performer agree that it is the recording group, the record company and the arrangement which lead to the success of most songs played today in coin-operated phonographs."

Thus it is generally acknowledged even by those who are profiting from the exploitation without compensation of performers' talent, that a performer's contribution to the final rendition of a musical work is a creative endeavor fully within the meaning of the Constitutional Clause granting copyright protection. It is clear through a long history of judicial decisions and Congressional enactments that the "writings of an author" encompass anything including photographs, statutes, pottery designs, motion pictures, pantomimes and choreographs, produced through the intellectual endeavors of an individual. There is no longer any doubt that the contributions of record performers fall within the purview of the Constitutional provision.

THE NEED OF THE PERFORMING ARTIST FOR COPYRIGHT PROTECTION

During the greater part of the nineteenth century, the work of the performing artist retained an ephemeral and localized character. Towards the beginning

16 Capitol Records, Inc. v. Mercury Records Corp., 221 F. 2d 657, 664 (2nd Cir. 1955), (dissenting). Judge Hand in his dissent agreed fully with the majority opinion on this point which stated: "There could be no doubt that, under the Constitution, Congress could give to one who performs a public domain musical composition the exclusive right to make and vend phonograph records of that rendition." Id at 660.

17 Ringer, The Unauthorized Duplication of Sound Recordings, supra note 7, at 12.

18 Hearings Before Subcommittee No. 3 of the House Committee on the Judiciary on Copyright Law Revision. 89th Cong., 1st Sess., 1863 (1965).

is H.R. Rep. No. 83, 90th Cong., 1st Sess. 65 (1967).

Statement of Robert E. Nims, before Subcommittee on Patents, Trademarks and Copyrights of Senate Judiciary Committee Mar. 17, 1967; Statement of William Cannon, Hearings before Subcommittee No. 3, of the House Judiciary Committee on Copyright Law Revision, 89th Cong., 1st Sess., 564-66 (1965).

of the present century, the appearance first of the phonograph, later of sound radio and, finally, of television resulted in a continuous development of methods for fixing performances on records, film, and tape for the delayed transmission of sound and images. This development has had two effects: first, performances which had been epheremal or capable of being received only at the time that they were performed became permanently fixed so that they could be preserved and widely reproduced and distributed; second, the range of the performance has been immeasurably increased primarily due to the developments of the broadcasting rather than the recording industries. These developments while making music and performances more available to the public, have resulted in a decline in employment opoprtunities for musicians and other performers.

During the era of the silent film, motion pictures provided openings for musicians. With the advent of the "talkies" these positions no longer existed. Similarly, live performances on radio have been replaced almost completely by recorded music. According to a study made by the U.S. Department of Labor in 1949, it was found that unemployment among broadcasting performers was much more prevalent than among the active population in general. Within the class of performers engaged on a fee basis, complete unemployment averaged as much as 27.3% for actors and 15.6% for singers, while the Unemployment Index of Workers as a whole oscillated at that time between 3.6% and 2.9%." This situation appears to be no better today.

A study published in 1966 by the Twentieth Century Fund had this to say: "Unemployment is one of the most serious and persistent problems of the professional performer. This arises from two main sources: the short seasons of many performing groups and the free-lance nature of many of their working arrangements. We have already discussed the seasonal unemployment problem of many orchestral musicians, actors in regional theaters and some opera and dance companies, where regular employment amounting to little more than half the year is not atypical. Moreover, even when the performing group has a short season it is usually very difficult for the performer to find other professional jobs during the remainder of the year, because each company naturally chooses its weeks of activity during the height of the artistic season and releases the artist precisely during that period when very little performing activity is going on elsewhere. As a result unemployment rates among performers are extremely high."

The United States Department of Labor pessimistically advises young artists to utilize their talents as a hobby rather than as a profession. In its 1966-67 Occupational Outlook Handbook, it well-summarized the prospects facing an aspiring young performer:

"The difficulty of earning a living as a performer is one of the facts young people should bear in mind in considering an artistic career. They should, therefore, consider the possible advantages of making their art a hobby rather than a field of work. Aspiring young artists must usually spend many years in intensive training and practice before they are ready for public performance. A person needs not only great natural talent but also determination, a willingness to work long and hard, and an overwhelming interest in his chosen field."

In regard to musicians and music teachers, the report continues:

"Employment opportunities for performers are expected to increase slightly over the long run. Although the number of civic orchestras in smaller communities has been growing steadily, many of these orchestras provide only part-time employment for musicians who work chiefly as teachers or in other occupations. Moreover, the openings created by the establishment of these orchestras have been more than offset by the decline in opportunities in the theater, radio, motion pictures, and other places, which has resulted, in part, from the greatly increased use of recorded music." 23

We all know of performers who are earning large incomes, and the financial rewards for those who achieve stardom are perhaps as great as in any other profession. However, those who reach the top are few indeed when compared to

21 U.S. Dept. of Labor. "Employment and Unemployment of Radio Artists" Monthly Labor Review, Vol. 68. No. 5 (1949) as reported in International Labor Organization Study. "Rights of Performers in Broadcasting, Television and the Mechanical Reproduction of Sound" Report No. 3, at 8 (1951).

Baumol and Bowen, Performing Arts-The Economic Dilemma, 127 The Twentieth Century Fund (1966).

U.S. Dept. of Labor Bull. No. 1450-56, Employment Outlook in the Performing ArtsActors, Dancers, Musicians, Singers at 1, 9 (1966) (Emphasis supplied).

the great number of performers who spend their lives practicing their art with little financial return.

In every profession there are a few outstanding successes who earn large incomes, but an aspiring young lawyer, doctor or businessman is not advised to practice his chosen profession as a hobby rather than as a field of work because the rewards for the average person in that profession are too meager and tenuous to be worth the effort necessary to achieve success. Yet that is the situation which confronts the young performer of today.

Part-time attention to as demanding a field as the performing arts cannot produce the excellence which only a professional can offer. But the gifted performer is not offered the rewards which would induce him to make the arts his life's work.

A report published by the Rockefeller Brothers Fund points out that there has been a tremendous expansion in the performing arts in this country in the past two decades, but after a brief recital of the "cultural boom" statistics of the usual variety, the report remarks:

"Next to this glowing picture must be placed another, more sobering one: Almost all this expansion is amateur. comparatively few are ever exposed to

any live professional presentations....

"Broadway... has reduced its output from an average of 142 productions per year during the thirties to 63 in 1963–64, and its playhouses have diminished in number from 54 to 36 in the same span of years.

"The number of commercial theater in the country has dropped from 590 in 1927 to barely 200.

"Of 1,401 symphony orchestras, only 54 are composed predominantly of professional musicians.

“. . . there are only five of six dance companies that meet high professional standards and possess any real degree of institutional stability; only one ap proaches giving year-round performances.

"Of the 754 opera-producing groups, only 35 to 40 are fully professional, and not more than 10 of these provide performances more than fifteen days in the year.'

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The performing artist cannot be expected to spend years of preparation in developing his talents to a fine degree only to have his intellectual creations appropriated by others. He must, as every workman must, be able to expect a just return on his invested years of study. This could be achieved, as it was in the Middle Ages, by providing a rich patron to support a performer, or as is done in some countries today by government support of the arts. However, the performing artist does not believe that these alternatives are either necessary or desirable. Our founding fathers recognized this problem when they included the copyright clause in the Constitution. The Supreme Court has recently reminded us of its purpose when it stated:

"The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in "Science and Useful Arts." Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered." 25

It is this right to personal gain now granted by Congress to every other creator of intellectual property which the performer seeks to obtain.

INCOME RECEIVED BY PERFORMERS FROM RECORDS

It is said that performers receive income from their records from a variety of sources and under a multitude of royalty arrangements. That simply is not the case. Contrary to the composer who is paid twice, once on the sale of the record, and again, each time his song is played, the performer receives only a single payment, for the sale of the record. The composer enjoys a still further advantage, since he is paid his statutorily-created royalty for every record sold. while the performer receives a royalty only if the record sells enough copies to be profitable. Most records are not profitable.

When a record is made, the performing artist is paid a small fee at the union scale of $57.50 per song or per hour, whichever is greater. This payment is an

24 The Performing Arts-Problems and Prospects, Rockefeller Panel Report on the Future of Theater, Dance. Music in America, at 14 (1965).

25 Mazer v. Stein, 347 U.S. 201, 219 (1954).

advance against any future royalties which may be earned by the sale of the record.

The performer, however, must share in the cost of making the record by paying for the arranger, copyists, and musicians, which cost usually runs several thousand dollars per record. This sum is advanced by the record companies and is charged to the artist's account against any future royalties which may be earned from the sale of the artist's records. Not until a record company has recovered its costs and the record begins to show a profit does the artist begin to share in the royalties on sales. Then, before the artist is paid anything his advance payment is deducted, and his share of the production costs is deducted. Also, before the artist recovers any payment from a profitable record, his share of the production costs which have accumulated from all of his prior unprofitable records is deducted. As a result, almost all record performers are constantly in a deficit position, and never receive more than the $57.50 advance payment.

In contrast, the composer is paid a royalty, by the record company, the socalled "mechanical royalty", of about two cents per song for each record sold. This amounts to 24 cents on a long playing record of 12 songs. On the same record, the artist, would receive about 16 cents (at the usual 5% royalty) assuming that he sold enough copies to receive anything at all. The composer bears none of the production costs as does the performer, nor does he have to wait until the record becomes profitable. He is paid from the very first record sold.

In addition to the "mechanical royalty" which the composer receives from the sale of the record, he also receives a second statutory royalty when the record is played for profit. This is the "performance" royalty paid by radio and TV stations, night clubs and background music users, and collected on the composer's behalf by the various performing rights societies such as The American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music, Inc. (BMI). The performing artist receives no payment of any kind for the commercial performance of his records. The end result is that while the composer and the performer are jointly responsible for creating a musical rendition, the composer is paid both on the sale of the record, and for its commercial performance, while the performer receives a royalty only on its sale, if the record is profitable, and provided he has repaid the record company for his share of the costs of all previously unprofitable records.