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chairman of the Legislative Committee of the Music Publishers Association of the United States, an organization of which I am a past president.
Senator McCLELLAN. Does that have any relation to ASCAP!
Mr. FEIST. No; members of the MPA are affiliated with ASCAP insofar as performing rights are concerned.
Senator McCLELLAN. Off the record. (Discussion off the record.)
Mr. Feist. I am grateful for the opportunity to testify before this committee on S. 1006, the copyright revision bill
. Apart from all other considerations, it has a very unique meaning for me and I beg your indulgence if I make a brief personal comment. During the years from 1906 to 1909 when the last previous copyright revision was being considered, my father, a publisher of popular songs of some eminence and incidentally a founder of ASCAP—made many journeys to this city. He came on behalf of the publishers and composers of his day to participate in the development of a new copyright law for the United States which would be more effective and workable in the light of those conditions in the field of music which had developed in the first decade of this century. My own music publishing activities have been concentrated on concert music, but my purpose at this time is identical with that of my father in his time—to urge passage of a new copyright law which will afford proper protection for composers and publishers in terms of the situation which prevails today. And thus, in my journeys to this city, I feel a deep sense of historical continuity, both personal and professional.
The Music Publishers Association of the United States is the oldest of music's trade groups, having been established in 1895. It has a membership of some 50 leading publishers of concert, educational, and sacred music. Generally, we are referred to as "standard” music publishers. But as time goes on, the line of demarcation between standard publishers and popular publishers becomes less and less sharply defined.
Our counsel may wish and we hope will have the opportunity of commenting on certain technical and clarifying portions of the bill, but I wish to say at this time that our ogranization appears here to express its wholehearted support of this bill.
We would like, at this point, to congratulate the Register of Copyrights and his able staff and to express our admiration for the successful resolution of the many complex problems which faced them in developing a copyright revision bill that would be appropriate to the times.
The standard music publishing business has changed remarkably in the 56 years since the passage of the last copyright law. In 1909, our business consisted entirely of the sale of paper, of sheet music. We depended entirely upon that for our income and'it was a business of some profit. We did not even at that time receive royalties on phonograph records, because they became a subject of protection only on July 1, 1909.
Senator McCLELLAN. Is that when you first began to make phonograph records?
Mr. FEIST. The phonograph was invented, Mr. Chairman, in 1878. Music, I believe, was first recorded on records in 1904. But only with the passage of the 1909 statute were records susceptible of payment of royalties to the composer under the copyright law.
Senator M.CLELLAN. Off the record. (Discussion off the record.)
Mr. Feist. Our greatest market at that time was the general musical public, the person who bought sheet music and played it for his own pleasure and the pleasure of his family circle. I deal in my statement with the type of music which was current at that time and being published by our members. We did, of course, have a large sale to church groups. The church field has always been a very important area of our activity. There were some small royalties which we received from symphony orchestras for their occasional performance of copyrighted music, but it was the sale of sheet music which supported our industry.
During the intervening years, it is almost unnecessary to point out the changes which have occurred. The market among the general music public has almost completely disappeared. Today, our market is through sale to the educational world. We sell, of course, continually to the churches. We have no sale to professional performing groups, because music of that kind today is usually available only on rental.
Senator McCLELLAN. You heard me discussing this educational aspect of the copyright situation with the previous witness, Mr. Rosenfield ?
Mr. FEIST. I did, indeed.
do you? Mr. FEIST. Oh, yes, we have a very strong interest in it, Mr. Chair
I shall come to that later in my statement and make a passing comment on Mr. Rosenfield's statement.
Senator McCLELLAN. Go right ahead.
The total sales of all sheet music, including popular songs today, amounts to somewhat less than $40 million a year
Mr. FEIST. Without income from rights, broadcasting rights, record rights, and other subsidiary rights, there would, to most music publishers, be no profit.
Senator McCLELLAN. Do I understand that out of the royalty that is paid to the composer, you get a percentage of that as publisher?
Mr. FEST. In general, royalties from, let us say, phonograph records are divided equally between publisher and composer.
Senator MCCLELLAN. All right, go ahead. Mr. Feist. You see, rights have come into being since the passage of the 1909 law which in fact do support our enterprises.
Now, if I may read, in the first decade of this century, music was essentially a matter of personal presence and was heard within earshot of live performers, and unless the performer had, by his diligence, committed the piece to memory, it was performed from the printed page. Thus, the sound of music and the printed note were completely bound together.
In the day-to-day musical experience of the public of the 1960's, the sight of the page of music is almost nonexistent. Most of the music which people hear comes to their ears through one or another of the
electronic devices which have come into being and which are becoming almost omnipresent. Indeed, today, a whole body of music never appears in print, since it is composed purely for purposes of performance without any expectation of the sale of copies. As a matter of fact, in the experimental areas of composition today, the sounds are not even made by live musicians, but are produced by electronic impulses in a laboratory, removing the written note completely from the communication of the sound. This makes the inclusion of sound recordings as an additional subject of copyright an important factor in revision, since it will not only give protection to the improvisational creations which are the essence of jazz and other areas of expression, but also to music created directly in sound for which no notation has yet, or may ever, be developed.
Senator McCLELLAN. Well, I am trying to remember; on the Lawrence Welk program, do they not have sheet music before them? You said it is never used any more.
Mr. Feist. Probably in the case of Lawrence Welk, special arrange ments are made for the particular instrumentation.
Senator McCLELLAN. I think I have seen them turning sheets.
But I wish to indicate that music comes to us through sound rather than through the concrete page of music.
Senator McCLELLAN. All right. Mr. FEIST. A matter, I think, of essential consideration in the area of copyright protection, and a matter of national consequence, I feel, is that growth of America as a creative force in the art of music. In 1909, for example, I believe that no American publisher involved himself to any degree with serious music, or what I prefer to call concert music, which was created by American composers. During the 1920's there was a real quickening of American creativity. We had composers who were providing something which was unique and native.
Following that, and as a particular gift of Mr. Hitler, the United States welcomed almost every composer of eminence from Europe. These composers were coming here as refugees, were invited to teach at our universities. They taught our younger composers. As a result of their influence and our own creativity, we have in the United States, in last decades, grown into a major creative force in music. It has been a growth that is remarkable in the history of music. There has never been one as quick; there has never been one that has been as explosive Perhaps some day, we shall become exporters of our concert music, just as today we are exporters of popular songs; the whole world dances to our American tunes. At the present moment, we are importers of concert music.
This cultural explosion, I think, is an important essential in our consideration of American copyrights.
I am proud that American music publishers have risen to the challenge of the "explosion" in American musical composition, and despite a timid beginning, are today assuming their professional responsibility for the musical art of their country. I must point out that this has been an act of faith, for, sad to say, the economic impact of the publication of this music is presently negative. The publisher's financial
investment is seldom recouped, even over a long period of years. His investment of his energies will never be recouped.
Genius belongs to the composer; risk, patience, and faith in our native musical creativity and its ultimate success are the publisher's contribution to the process of America's artistic growth in music.
The establishment of the works of serious composers as part of the general repertory is an exceedingly slow process. Thus, the proposed extension of the term of copyright to life plus 50 years has a particular importance to our serious composers and their publishers. Now, indeed, copyrights of numerous works expire almost coincidentally with their public acceptance. Often composers do not live to see their own success, and with the present term of copyright, their families do not enjoy the fruits of the composers' genius. It has been said that the extension of term will stimulate composition because the rewards will continue for what will, in nearly every case, be a longer period of time. Certainly, if the rewards are greater, more talented people will be persuaded to devote their lives to artistic creativity, and I believe it a valid hypothesis that the greater the body of creative artists at work in any country, the greater the possibility that genius will strike.
In the spring of this year, the Rockefeller Brothers Fund published a panel report-Mr. Alienikoff, yesterday, particularly thought some proponent of the bill would quote from this very able and searching study. Its title is “The Performing Arts: Problems and Prospects. I have attached to my statement exhibit A) the list of the distinguished Americans who were members of that panel. The report states that not every member of the panel subscribes to every detail of the report, but that the report reflects their substanial agreement. I quote the following from the section dealing with copyright as an influence on the arts in America:
There are other ways by which revision of the federal copyright law could better protect the creative artist. One of the most important of these is extension of the time span of copyright protection—now a twenty-eight year original period with a renewal period of twenty-eight years—to a term comparable to that prevailing in England and most of Europe, which is the author's lifetime plus fifty years. At present, many elderly artists are in the curious position of outliving the royalties on their early works just at the time of life when this income may be most valuable to them.
Another matter of justice and equity to the composers and their publishers is the elimination in the proposed bill of the present exemption of public performance of nondramatic literary and musical works where the performance is not for profit.” In 1909, as I have noted, the major part of the composers' and publishers' income came from sales. All music was printed and was available only in that form. Today, music, as I have said, is universally available as sound and its public performance is omnipresent. In fact, it must be the serious composer's chief source of income, if he is to be compensated for his creativity.
Just as the current statute takes note of the fact that the dramatist's compensation must coine entirely from performance of his work, whether for profit or not, since sales of plays are negligible, so too must the composer's present situation and his right to royalties from all performances of his work be recognized.
One of the greatest users of concert music, chiefly through recordings or tapes, is the educational broadcaster whose activities are now deemed "not for profit.”
Of course, radio makes much greater use of music in its programing on a continuing basis than television. Educational radio, in fact, competes with commercial radio for listeners to concert music. Performers, engineers, announcers and others are all paid in one or another. But the composer is not now compensated, and this seems neither equitable nor to give encouragement to the creative art of music. On this subject, the Rockefeller panel report had this to say:
But perhaps the most serious threat is the current advocacy to exempt educational institutions from the obligation to pay royalties for the performance of musical, dramatic, and literary works. Some educational associations are seeking to gain a very broad exemption in the revision of the copyright law on the use of artistic creation, extending even to an exemption for mimeographed material used by a teacher in a classroom. But their efforts are focused on gaining freedom from royalties and control by the author of material used by educational television. Although educational television, in its initial stages, clearly deserves concessions and intelligent cooperation in its development by artists, there seems no reason why it should receive blanket exemption from the payment of reasonable fees. Were it to receive this exemption-indeed, if any educational institution were to receive it-artists would once more be in a position of being forced to provide a partial subsidy for the general culture and intellectual development of the nation.
It would strike me as ironic, gentlemen, if educational broadcasters resist payment of some moderate royalties--some reasonable royalties—for the right to broadcast copyrighted music. It would seem to me to be out of keeping with the traditional cultural role of the universities and other institutions which support these broadcasting facilities, frequently out of tax moneys. One would hardly expect a university press—such as represented by Mr. Carroll—to refuse to pay royalties to the authors of their books, and, indeed, they, as a matter of universal practice, do pay royalties. They pay fees for permission to include excerpts from copyrighted works in their compilations and in their publications. Universities proudly maintain composers in residence, and it would be strange if they failed to acknowledge their obligation to composers not in residence whose music they use to such a great extent.
I mentioned before, Mr. Chairman, the growth of American music education to the point where it represented the greatest amount of our sales of sheet music. I was not aware of the fact that representatives of the ad hoc committee of educators would appear before my appearance here when I wrote my testimony: So I had anticipated in my statement some of the things which might be included in their testimony.
Music is especially vulnerable to what seems to be the position of some members of this group. Should it be proposed, for example, that a school be permitted to reproduce a single copy of a complete work, just one copy, I would like to point out that in terms of music for band or orchestra, which include the instrumentation and parts for all the performers, a single copy satisfies the total demand.
Senator McCLELLAN. Well, let me see if I understand. Here is a composer who has composed a march, we shall say. He arranged to have that published by the industry you represent. It is published. The sheet of music is sold. The school buys it. For that, it pays some royalty. Now, they want to get out on the football field or somewhere and play that march and they cannot copy the music without paying a royalty again, is that so?