The Authors League respectfully requests that this statement be included in the record of the Subcommittee's hearing on H.R. 3521, introduced by Representative Boucher, which will compel composers of music for television programs to surrender to program producers the right to license performances of that music in non-network, commercial broadcasts ("broadcasts") of those programs. The Bill prohibits producers from granting TV stations rights to broadcast their programs unless the producers simultaneously grant the right to perform the music. At present, the right to perform those compositions in broadcasts are licensed on behalf of their composers and publishers by a licensing society (e.g. ASCAP or BMI) they voluntarily choose, under a system of blanket licensing which the courts have twice upheld, in dismissing broadcasters' antitrust suits against the licensing societies. On behalf of its 14,000 author and dramatist members, The Authors League urges Congress to reject H.R. 3521 because it is unfair, unnecessary, and unconstitutional; and because its provenance is a grave threat and affront to the legislative process. The Bill Is Unfair 1. Under the Copyright Act, the right to publicly perform a musical composition, by broadcasting a TV program embodying it, is a separate and divisible property right belonging to its author "which may be transferred and owned separately", as is every other right granted to authors by the Copyright Act. (17 U.S.C. Sec. 201(d)(2)) . The purpose of this "divisibility" is to allow authors to decide how and to whom they will license each of the property rights in their works, and to assure them the very choices that the Bill seeks to deny to one class of authors composers of music for TV programs which are - by transmitted by non-network broadcasts. From the birth of television broadcasting, copyright owners of music have been entitled to make separate grants of: (i) the right to embody a composition in a television program licensed to the producer; and (ii) the right to perform the composition in conjunction with the broadcast of the program - licensed to the broadcaster. As we noted, the composer's and publisher's right to license, through ASCAP or BMI, the separate performance right to the entity that uses it, the broadcaster, has been upheld by the Federal courts. And the courts have rejected the arguments that broadcasters now press on Congress to rationalize the Bill. In the nonpolitical forum of the courts, on the basis of non-partisan, painstaking and competent analysis of a detailed factual record, composers' and publishers' rights to thus license broadcast performances of their musical works has been found legal and workable. It would be grossly unfair for Congress to deny them those rights, and restrict the fundamental principle of "divisibility", in order to give an unnecessary and unfair bargaining advantage to one of the nation's most powerful and politically influential industries. 2. The Bill would compel composers of music for television programs to surrender their TV performance rights to the program producers although it is almost universally recognized that the bargaining power of a major producer is far superior to that of an individual composer, no matter how gifted he or she may be. While proponents of the Bill note that actors, writers, and directors of those programs receive "residuals" payments for each non-network broadcast, it must noted they are thus compensated for each use of their work because they are represented by unions whose collective bargaining power confronts that of a major producer... residuals for these artists are not the product of individual bargaining. Yet the effect of the Bill, and its obvious purpose, is to compel each composer to deal individually with a program producer, usually a powerful company, often owned by a large motion picture corporation or an entertainment conglomerate. Thrust into that inferior position, most composers will have all the "freedom of contract" of a 1910 steel worker negotiating individually with U.S. Steel or Carnegie Steel. Inevitably, most composers will be deprived of the essential right to have their compensation based on the success of their music, measured by the frequency of its use.* This is a right composers now enjoy through the licensing of their works *The Authors League agrees with composers' witnesses that the Bill's restraint effectively would limit their compensation to one fee paid when their work was performed, which would bear no relationship to the music's future value, thus depriving them of vast sums. by their performance rights societies. It is a right actors, directors and screen writers obtain through collective bargaining agreements negotiated by their unions. (Even if there were justification for a bill mandating source licensing of TV performance rights in music, that measure would be grossly unfair unless Congress also permitted composer to bargain collectively through unions of their choice with television producers and other users of their work product. [Cf. National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 127-8; ftn. 26 (1944)] The Bill is Unnecessary 1. There is something grotesque about the plaint of television broadcasters that they need the Bill to "protect" themselves against composers, licensing societies or program producers. Their exclusive licenses to use public property the television channels they control - have made broadcasters powerful and wealthy. They have ample strength to bargain effectively under present law for musical performance rights and ample income to pay fair compensation to composers.** Moreover, the courts have stressed that the broadcasters now have alternative means of varying the compensation they now pay for musical performance rights, if they are not satisfied with their ... **"In the past year, private investors made close to $10 billion selling broadcasting rights owned by the U.S. government. The Treasury received nothing. The Federal Communications Commission has allowed broadcasting licenses to be treated as if they were the property of broadcasters which they are not. U.S. taxpayers are the lawful (Sell the Airwaves and This Time Pay the Owner, Sanford Pensler; THE WALL STREET JOURNAL, Feb. 27, 1986.) - owners of these frequencies ... present ASCAP or BMI contracts. CBS v. ASCAP, 441 U.S. 1 (1979); Buffalo Broadcasting Co. v.ASCAP, 744 F.2d 917 (2d Cir. 1984), cert. den. 105 S. Ct. 1181 (1985). [See testimony of Register of Copyrights, Ralph Oman (March 19, 1986), pp. 13-21.] Among other things, they have the right to request the District Court to set a reasonable fee if they believe ASCAP or BMI ask too high a price for performance rights on a blanket license or per program basis. Indeed, broadcasters are now in the process of doing just that. We submit that this procedure of detached, impartial fact finding and determination is much better suited to achieving a reasonable solutions and fees than legislation to strip composers' of bargaining power, propelled through Congress by the enormous political power vested in broadcasters by their exclusive control over the public's television channels. The Bill is Unconstitutional The Bill is unconstitutional; it exceeds the constitutional limit on Congressional authority to enact copyright legislation because it "overreach(es) the restraints imposed by the stated constitutional purpose." Graham v. John Deere Co., 383 U.S. 1, 6 (1966). (1966). The Supreme Court repeatedly has held that the purpose of the Constitution's patent and copyright clause was to "supply the economic incentive" for authors that would encourage "their individual creative efforts by personal gain", in order to "secure a fair return for an author's creative labor", and thus to stimulate the creation of literary and literary works for the public good. Harper & Row v Nation Enterprises, 105 S.Ct. 2218, 2230 (1985) (citations omitted) |