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we are referred to as "standard" music publishers. I should note, however, that the line of division between “popular" music publishing and “standard” music publishing is, over the years, becoming less and less sharply defined.
Although there are certain technical and clarifying suggestions which have been or will be made by authorities on copyright law who are supporting S. 1006 upon which our Association's attorney will later express our agreement and may wish to comment in some detail, I need hardly say that our organization appears here to express its wholehearted support of the 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.
While music publishing like almost every other American business has experienced startling changes in the past five decades—unbelievable changes, in some areas—few other industries are as dependent for their very existence on a law and none, to my knowledge, on a law which has not been substantially revised in fifty-six years. The rights which the copyright law grants to our composers and authors is the foundation of our enterprise.
Music publishers, of all the publishing industries, have been the most dramatically affected by the changing conditions of the intervening years. Perhaps the clearest way in which I can describe the impact of these changes would be to compare the sources of income of the standard music publisher and the composers whose works he issues as they existed in 1909 and as they exist today. In 1909, the standard music publisher's income was derived almost entirely from the sale of sheet music. The printed note was the beginning and the end. A major part of the sale was of American reprints of European editions which were not protected by copyright, including both works of classical composers and pedagogical material for private study. There was a considerable body of light salon music composed and published in this country, and music for worship was of great significance. Other types of music which were issued by the standard music publishers might best be illustrated by reciting some of the works which were enjoying popularity and wide circulation during the period of the last copyright revision, and this brief sampling may also serve a useful purpose in giving a feeling of those times. Edward MacDowell, America's first notable composer of concert music, whose “To a Wild Rose" was his greatest success, had died in 1908. “The Merry Widow" was playing on Broadway, and everyone was dancing to its famous waltz. Recital singers were introducing Charles Wakefield Cadman's “From the Land of the Sky Blue Waters' as they were to feature “A Perfect Day" by Carrie Jacobs Bond, a year later. John Philip Sousa was frequently in Washington at the copyright hearings prior to his departure in 1910 with his band on an immensely successful world tour. Fritz Kreisler was performing his new “Caprice Viennois” as he toured around the country and another famous European performer, Sergei Rachmaninoff, was also playing one of his own compositions, the "Prelude in C# minor" in his American debut. Victor Herbert, that great crusader for the rights of composers, was in almost constant attendance at the copyright hearings. He had just written a new operetta, “Naughty Marietta”, full of lilting songs, the most successful of which was “Ah, Sweet Mystery of Life.”
Naturally, purchasers of all these varied types of music represented diverse groups. Most important was the individual who played or sang for his own pleasure and that of his family circle. He had studied, of course, with a private teacher who was responsible for the purchase of very large quantities of teaching and recital material. The church, the professional band and orchestra, and those small ensembles which played behind the palms in hotels were also factors in the market.
While there were small royalties received from the few existing symphony orchestras for their performances of copyrighted music, publishers of the day rceived no meaningful royalties from other sources, not even from the growing sales of the new wax cylinders for the talking machine. Such rights were to come into being only on July 1, 1909.
Today, the sources of the composers' and publishers' income have changed re. markably, although, unlike the situation confronting popular music publishers, in the field of standard music, sheet music sales are still the major source of revenue. The rapid and universal growth of music education in American public schools and colleges has resulted in the development of what is perhaps the largest single part of the present music market, although no precise statistics have ever been developed. The private music teacher (and her student), after a long period of
decline, is now an increasingly active customer. Churches have continued as constant purchasers. On the other hand, sales to professional performance groups are small. (Most music for concert performance is available today only on rental.) And purchases by the general music public have ceased to be a factor of any consequence.
Today, however, other sources of income have, by reason of the technological changes in the dissemination of the sound of usic, become increasingly important. Royalties from the broadcast performances of music, from recordings and other means by which music is reproduced mechanically or electronically have become substantial. Although the relation of these types of income to income from sales varies greatly among different publishers depending on the particulur nature of the individual enterprise, in almost every case they represent more and more an important element in the economics of our business.
Thus, substantial income to the standard music publishers today stems from areas which were non-existent in 1909, and only to clarify the rights situations brought into being by these developments, prompt revision of copyright statutes would be obviously and sorely needed.
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 non-existent. 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.
If only by reason of the revolutionary change in the means of communication of music and public access to it-the change from live performance from printed music itself to the sound of music in space--there would be great need for the revision of the law.
There is, however, an additional factor of deep significance and one which is, I believe, worthy of emphasis because it is a matter of important national conse. quence. That is the state of American music as a cultural force at home and abroad. Before the First World War, American standard music publishers were almost entirely uninvolved in the publication of serious American music or, as I prefer to call it, concert music. Perhaps this was because there was so little of real interest being composed. Some of our composers, such as MacDowell, were published first in Europe.
In the 1920's and early 1930's, a notable quickening of American creativity became evident, and the talents of some young American composers began to be recognized as promising and unique. Undoubtedly, this native cultural growth would have developed and become increasingly strong without any outside influence. Music education was helping to develop an audience for concert music without which, of course, the art cannot flourish. Through radio and recordings, the art of music would no longer be concentrated in a few metropolitan centers but would become available in every part of the nation, no matter how removed from the concert halls.
However, a most powerful impetus to American musical creativity arrived from a strange and unexpected source--the Nazi regime. In the 1930's and early 1940's, almost every European composer of eminence sought refuge in the United States. Stravinsky, Schoenberg, Bartok, Hindemith and dozens of other world-famous masters became a part of the American musical scene, composed their works here, and most of them were invited to teach in our universities and schools of music. The native talents of our new generation of American composers have been immensely benefited by this rich infusion of European genius and Hitler's unintended contribution. I think it is safe to say that no other
country has ever become a truly major force in musical creativity as rapidly as
In terms of musical history, it has been overnight. American concert music is today being increasingly performed and accepted throughout the world. Perhaps the day will come when it will have become an important export as our popular songs have been for so many years. All the world dances to American tunes. Our concert music could, one day, reach a similar state. At this moment, however, we are still primarily importers of concert music.
It is hard to escape the expression “cultural explosion” today. In no area of the arts is this phrase as pertinent as it is to the art of musical composition. I am proud that American music publishers have risen to the challenge of the "explosion” in American musical composition and, desipte 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 pub lisher'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. An increasing number of our publishers are undertaking this commitment.
The composition of concert music is a very small part of the overall musical output of the United States; in terms of economic impact it is, as I have men. tioned, rather inconsequential, but in terms of its intrinsic importance, it should, I submit, have special consideration and should be recognized as a vital factor in the need for copyright revision. It is from this small area of our musical output that most of America's permanent contributions to the common musical heritage of the world will come.
Moreover, the influence of this relatively small body of work is and will be felt in every other part of America's musical life. The serious composer's leadership in musical thought and innovation is often adopted as a part of what amounts to the general music expression or a common musical language, so that all areas of music are in some way and at some time influenced and benefited.
We are now talking about people who are ahead of their time, and it might be valid to say that these are the people who create the shape of our art and our thought-creators whose appeal is not momentary and transitory, but permanent and profound. Thus, in our thinking on copyright for the future we would do well to concern ourselves with how we can assist in the development of the future of this American music and what problems may develop in relation to its special and peculiar nature. Much of its development will depend on the nature of this present revision. Consideration of the convenience of users at the expense of the protection and rewards of creativity would, I contend, impede our cultural development.
The establishment of the works of serious composers as part of the general rep ertory is an exceedingly slov process. Thus, the proposed extension of the term of copyright to life plus fifty 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: "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 non-dramatic 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 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 come entirely from performances of his work, whether for profit or not, since sales of plays are negligible, so too must the composer's present sit. uation 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." Performers, engineers, announcers and others are all paid in one way 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 artisitc 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-aritsts would once more be in a position of being forced to provide a partial subsidy for the general cultural and intellectual development of the nation."
It would strike me as ironic, gentlemen, if educational broadcasters resist payment of some moderate 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 to refuse to pay royalties to the authors of their books, and, indeed, they, as a matter of universal practice, do pay royalties. 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 believe that the language of Section 109 (3 & 4) of the bill which exempts certain types of performances from the payment of royalties is equitable even though it may be argued that if music is worthy of playing it is always worthy of payment. In fact, as Jasques Barzun, Dean of Graduate Studies at Columbia University, has recently written in his book “Music in American Life" :
"As for free performances, which many users deem a great favor on their part, they butter no parsnips."
I have mentioned the growth of the educational market for printed music to the point where it represents the most important single area of sales for printed music today. During the course of these hearings, I am quite confident that representatives of the educational world will urge special considerations in the bill, as they have in the hearings before the House Subcommittee dealings with copyright revision. It would not be appropriate for me to recite what I believe these special pleas may be, but I would like to indicate the special vulnerability of music to what seems to be the position of this group. Should they propose that a school be permitted to reproduce a single copy of a complete work, I would like to point out that in terms of music for band or orchestra the single copy satisfies the total demand. If they suggest that schools should have the right to reproduce a brief work in reasonable quantities (meaning one for each member of a class), I would like to point out that this could completely destroy the school market for choral music.
The relationships which have existed between music publishers and music educators represent, I believe, a model of intelligent cooperation and mutual accommodation. I am sure that their organization, understanding the music publishers' essential contribution to their work, will not urge the exemptions which may be sought, but I want to make clear the possible impact of proposals of other groups of educators on the special area of music.
Other witnesses with the highest qualifications will testify later on behalf of music concerning the bill' in general from the point of view of their particular field of activity. Their broad knowledge and profound understanding will also be brought to bear on certain specific aspects of the revision. Therefore, I will limit my comments on these special points although my brevity should by no means suggest anything short of the strongest support of these provisions of S. 1006.
I would like to emphasize that our association considers the increase of the statutory royalty for recordings long overdue and particularly the need for this revision as it concerns recordings of extended works which, on long-playing records, can today be reproduced in their entirety on a single side.
Our association also considers the present jukebox exemption immoral and would like to point out that while most of the music played is popular music, nevertheless the performing rights organizations distribute to the serious composer a larger proportion than his strictly prorated share of the royalties they collect, so that some part of whatever monies are collected from jukeboxes will, on the basis of established practices, be distributed to composers of concert music.
There is a provision of the bill which, although it has no effect on music, I feel must be mentioned. That is the manufacturing clause. Unlike books, music by American composers printed abroad may be imported without restriction and without endangering the copyright and subject only to the payment of the established duty. Yet the total quantity of such production is infinitesimal. It is perhaps 100th of one percent of all music printed for American publishers. If foreign manufacture of unrestricted publications is so completely inconsequential, I think that it follows that such restrictions are equally meaningless in relation to books and that such a provision in a copyright law protects no one and serves no useful purpose. It is, however, damaging in that, although not realistically protecting printers, it may threaten the copyrights of American authors. I mentioned earlier that some American composers were formerly published in Europe, and some of them still are. If there were a manufacturing clause applicable to music, though it would be completely inconsequential for printers, it might destroy or invalidate the copyrights of all these composers.
It was with great satisfaction that the world of music noted the recent passage of the Arts and Humanities Endowment Bill by the Senate. This bill indicates, more than any other of the many manifestations of America's cultural explosion, the commitment which the United States has come to acknowledge toward the arts. I submit, gentlemen, with all deference, that the growth of our national culture through any of the stimulation presently being so vigorously developed will, of necessity, be shallow unless the roots of our national creativity are encouraged. The deepening and strengthening of these roots must be the aim and will be the consequence of a strong and enlightened copyright law. Thank you.
MEMBERS OF THE PANEL OF THE ROCKEFELLER BROTHERS FUND REPORT, “THE
PERFORMING ARTS— PROBLEMS AND PROSPECTS" (1965) Patricia M. Baillargeon, former assistant to Mrs. Eleanor Roosevelt; board
member, Seattle Repertory Theater and Seattle Youth Symphony ; Seattle. Walker L. Cisler, chairman of the board, Detroit Edison Company; director,
Detroit Symphony Orchestra ; Detroit. Kenneth N. Dayton, vice president, Daytons; director and past president,
Minnesota Orchestral Association ; Minneapolis.
Educational Broadcasting Corporation ; Albany.
Orchestra and Atlanta Music Festival Association; Atlanta.
on the arts to President Kennedy; trustee, National Repertory Theater Foundation; New York.