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Mr. REED. Now there is a division made of the balance and that goes to the members ?

Mr. COLLINS. That is correct.

Mr. Reed. Is there any particular manner in which that is divided? Do

you have a certain formula as to how much goes to the author, how much goes to the publisher, and so forth?

Mr. Collins. The fund is divided 50 percent between the composer and author, and 50 percent to the publisher. Then as to the individuals, I think Mr. Harbach has explained how it is handled, as to the individual composer and author.

Mr. BRYSON. Thank you, Mr. Collins.
Mr. COLLINS. Thank you, sir.

Mr. HARRIS. Before Mr. Finkelstein testifies, I would like to introduce several statements from members of the American Society of Composers, Authors, and Publishers, if I may.

Mr. Bryson. Do you propose to read them, or just give a résumé of them?

Mr. HARRIS. I would like to give a résumé of them.

Mr. BRYSON. All right, tell us whom it is from and what the substance of it is without reading it in detail.

Mr. Harris. This is a cable from Oscar Hammerstein II in support of H. R. 5473. He regrets his absence in London makes it impossible to appear, but he is heartily in favor of the objectives of the bill.

This is a wire to the chairman of the subcommittee from Richard Rodgers. Apparently Mr. Rodgers is aboard ship. He, too, regrets the fact that he cannot testify in person, but he heartily endorses the objective of the bill.

Here is a statement from Sylvia Dee. She is a writer of musical compositions. She has written some very outstanding compositions, which most of the subcommittee probably have heard.

She, too, is in favor of the bill.

We have a telegram from Irving Berlin. He heartily endorses the bill. He says:

I shall be unable to leave California in time to attend the hearings on your bill H. R. 5473, but wish to join my fellow writers in supporting your efforts to place the juke-box industry on a parity with others in paying a reasonable royalty for the use of copyrighted music.

It is a very interesting telegram and it will be incorporated into the record.

(The documents referred to are as follows:) Hon. JOSEPH BRYSON,

Chairman, Subcommittee No. 3, House Judiciary Committee,

Old House Office Building, Washington, D. C. Regret absence in London makes it impossible to appear personally in support of your bill, H. R. 5473, which is designed to protect authors against unauthorized performances of their works in jukeboxes. I heartily endorse your objective of making the distributors and operators of jukeboxes liable for performances while exempting individual tavern owners and other owners of only a single jukebox. Although your bill (by prescribing a statutory royalty) limits an author's power to bargain with the jukebox operator, it removes the outright exemption which these commercial users enjoy today. I believe your compromise bill will be acceptable to most authors, and I hope you find the jukebox operators equally willing to accept it. On my own behalf, and on behalf of the Authors League of America, of which I am president, I wish to express appreciation for your continued effort to improve the copyright act of 1909 and for your interest in safeguarding the rights of authors.

OSCAR HAMMERSTEIN II.

a

Hon. JOSEPH BRYSON,

Chairman, Subcommittee No. 3, House Judiciary Committee,

Old House Office Building, Washington, D. C. DEAR MR. BRYSON: This wire is written to give you briefly my reasons for supporting your bill, H. R. 5473. I shall greatly appreciate your filing it as my statement at the hearings on this bill, as I expect to be overseas when those hearings are held.

My name is Richard Rodgers. I have been a composer since my undergraduate days at Columbia University, where I wrote music for varsity shows in collabocollaboration with the late Larry Hart. Professionally, we wrote, among other shows: The Garrick Gaities, Dearest Enemy, A Connecticut Yankee, Peggy Ann, Present Arms, Too Many Girls, Heads Up, Love Me Tonight, I Married An Angel, Jumbo, On Your Toes, Babes in Arms, I'd Rather Be Right, Spring Is Here, The Boys From Syracuse, and Pal Joey.

A few of the songs from these shows were: With a Song in My Heart, My Heart Stood Still, Lover, Thou Swell, I Married An Angel, The Lady is a Tramp, and Bewitched.

Since Larry Hart's death, I have written in collaboration with Oscar Hammerstein II. Our shows include: Oklahoma (Pulitzer Prize), Carousel, Allegro, South Pacific (Pulitzer Prize) and The King and I. These shows included such songs as Oh What a Beautiful Morning, People Will Say We're in Love, Surrey With the Fringe on Top, If I Loved You, June Is Bustin' Out All Over, It Might As Well Be Spring, The Gentleman Is A Dope, So Far, A Fellow Needs A Girl, Bali Ra'i, Some Enchanted Evening, Wonderful Guy, Younger Than Springtime, There is Nothing Like a Dame, I'm Gonna Wash That Man Right Outa My Hair, We Kiss In A Shadow, and Hello Young Lovers.

Mr. Hammerstein and I have also been active in casting, rehearsing, and producing some of our own shows as well as those written by others.

According to surveys made by the American Society of Composers, Authors, and Publishers (of which I have been a member since 1926, and a director from 1941 to 1947) my songs rank among the top five catalogs, measured by the frequency of their performances in radio and television. Since I am not paid for performances in jukeboxes, it is impossible to furnish statistics concerning my contribution to the hundreds of millions of dollars reaped annually by the jukebox industry from the exploitation of copyrighted musical works. It would be reasonable to assume that the use of the songs mentioned above is responsible for a substantial part of this income.

There is a strange anomaly in the existing copyright law, which H, R. 5473 would correct. The fact that the operator receives a nickel every time one of my songs is played gives him an immunity from paying me any royalty. On the other hand, if the public were permitted to hear my songs in these jukeboxes without paying the 5-cent toll to the jukebox operator, the tavern keeper would be obliged by law to pay me a royalty. What an odd situation that is. If the operator exacts payment from the public, then the operator does not pay me for my songs, but if the music is heard by the customer without payment of a nickel, then the owner of an establishment has an obligation to pay. That is the existing law. It is the law only because the Congress in 1909 could not possibly have foreseen the development of jukeboxes through inventions which have revolutionized the entire field of entertainment in the last quarter-century. If the present state of the art had been known in 1909, we may be certain that the Congress would not have created this anomaly.

The Bryson bill (H. R. 5473) and its companion, the Kefauver bill (S. 2186) seek to bring the 1909 copyright act in pace with modern scientific developments in the field of mass communication by requiring operators of jukeboxes to pay royalties to the owners of copyrighted musical works just as they are paid when these works are used by radio or television stations, or by wired music or by means of mechanical or electrical devices which are not operated by a coin,

Some compositions, by reason of a special appeal, are more peculiarly adapted for use in jukeboxes than in other fields. My own works are not of this type, since they are intended for a more general appeal. But whether songs are especially suitable for jukeboxes, like Bob Merrill's Sparrow in the Tree Top, My Truly, Truly Fair, or Belle Belle, My Liberty Belle; or Sylvia Dee's Chickery Chick or Too Young or are part of a so-called standard repertory, like some of the songs which I have written in collaboration with Larry Hart and Oscar Hammerstein II, we who write these songs, and whose property they are, should have the right to determine the conditions under which others may use them

commercially. This right is given to us as applied to all uses except those which occur through the medium of the jukebox. H. R. 5473 does not propose to give us unlimited control of the right to authorize the use of our music in jukeboxes, but it gives us the minimum protection to which we are entitled while at the same time safeguarding the small user, and affording the large user (operator or distributor) the opportunity to avoid infringement by paying a very low statutory royalty.

The responsible writers are willing to accept the limitations imposed by this bill upon their licensing; the responsible operators and distributors should gladly meet us halfway and join in endorsing H. R. 5473. Respectfully submitted.

RICHARD RODGERS, Fairfield, Conn.

STATEMENT OF SYLVIA DEE (JOSEPHINE MOORE PROFFITT) My name is Josephine Moore Proffitt. I am known professionally as Sylvia Dee. I was born in Little Rock, Ark. I now reside at Levittown, N. Y. Although my present profession is writing musical compositions, I have written novels (Dear Guest and Ghost, There Was A Little Girl, and And Never Been Kissed) and a musical show (Barefoot Boy With Cheek).

At the present time one of my songs, Too Young, is a jukebox favorite, as have been several of my earlier compositions, which include Chickery Chick, It Couldn't Be True, Stardreams, I'm Thrilled, Have You Changed? My Sugar Is So Refined, After Graduation Day, Laroo Laroo Lilli Bolero. I have been a member of the American Society of Composers, Authors, and Publishers since 1943. My annual royalties from the performances of my songs during the past 2 years have averaged $1,415.18.

I was startled when I first learned that performances of musical works in jukeboxes are not subject to the payment of copyright royalties because it is claimed that they come within the coin-operated machine exemption of the 1909 law. The law which protects dramatic works, such as my play, Barefoot Boy With Cheek, protects me against all public performances, whether they are for profit or not. Yet if I write a song it may be performed publicly for nonprofit purposes without my consent. I do not complain against this discrimination as between dramatic and musical works. But I do believe that whenever my songs are performed publicly for profit my right to receive royalties for the performanres should be recognized. It is recognized as to all such performances except those which are given by means of jukeboxes. Yet no performance is more clearly for profit than one where the patron must pay a nickel to an operator every time he wishes to hear one of my songs. Though the song is mine, I get no part of the nickel because of an outmoded law passed in 1909. Of course, loud-speakers were unknown in 1909, and the performances in penny parlors were hardly performances in public. No one can question that the performance by means of a jukebox is actually a public performance, nor can anyone question that the payment of a nickel makes that performance one for profit. H. R. 5473 is in the public interest and should be enacted for these reasons: First, the 1909 exemption is no longer logical; second, it creates an injustice to the writer; and, finally, it discriminates against other commercial users of music.

H. R. 5473 would correct this situation while safeguarding the small user against any possible hardship.

Hon. JOSEPH BRYSON,
Chairman, Subcommittee No. 3, House Judiciary Committee,

Old House Office Building, Washington, D. C.: I shall be unable to leave California in time to attend the hearings on your bill H. R. 5473, but wish to join my fellow writers in supporting your efforts to place the jukebox industry on a parity with others in paying a reasonable royalty for the use of copyrighted music. A desire to hear our copyrighted music is the only thing that induces the public to drop nickels into the jukeboxes. Wherever these boxes are located, our songs cannot be heard without paying toll to the jukebox operator, who contributes nothing to the creation of music. Only successful records are placed in jukeboxes. Yet the operators of these machines contend that their playing of our records helps to popularize them. That type of patronage which is given only to an assured success puts me in mind of Dr. Samuel Johnson's letter declining Lord Chesterfield's offer to have Johnson's dictionary published under his patronage. Said Dr. Johnson:

"Is not a patron, my lord, one who looks with unconcern on a man struggling for life in the water, and when he has reached ground encumbers him with help?''

Our songs that have become popular enough to find a place in jukeboxes have already reached ground. Those songs are placed in the boxes for only one reason: to attract the customer's nickels.

We believe we should have a right to say to the jukebox operators: Do not use our music commercially unless you, like other commercial users, are prepared to pay for it.

I have heard some users say that the very successful song writers should not try to increase their incomes because most of it will go to the Government in taxes. My simple answer is: "The United States Government is my Government, and I want to help to support it. I also wish to do it myself and not have others say they are doing it for me.” Besides, the jukebox industry is one that is notorious for its lack of financial data. No one knows exactly how many jukeboxes there are, who owns them, how many nickels are deposited in them, and to what extent certain operators commingle this business with the type of racketeering exposed in the Senate crime investigation.

I want to congratulate you and Senator Kefauver on the forward step represented by H. R. 5473 and the companion bill S. 2186.

I shall appreciate vour filing this wire with the committee as my statement in support of H. R. 5473. Sincerely yours,

IRVING BERLIN. Mr. HARRIS. Now, Mr. Chairman, will you please call Mr. Herman Finkelstein, counsel for ASCAP?

Mr. AHLERT. Mr. Chairman, before you call Mr. Finkelstein, I was going to read a few excerpts from some of these statements.

Now, Mr. Harris has read an excerpt from Mr. Berlin's statement, the same thing I was going to read. I wonder if you will bear with me so I could just emphasize a couple of lines here out of Mr. Rodgers' statement and Mr. Hammerstein's statement and Miss Dee's statement.

Mr. Bryson. Just briefly. The statements will be admitted in the record in full.

Mr. AHLERT. Yes.

Reading from Mr. Hammerstein's cable; he is over in London producing South Pacific [reading]:

I heartily endorse your objective of making the distributors and operators of jukeboxes liable for performances while exempting individual tavern owners and other owners of only a single jukebox.

I believe your compromise bill will be acceptable to most authors, and I hope you find the jukebox operators equally willing to accept it.

Now he speaks as president of the Authors' League of America. That is a large organization of book authors and I suppose, some play authors. I hope sometime we will hear from some other people on their behalf. That is insofar as Mr. Hammerstein is concerned.

I would now like to quote from Mr. Rodgers' wire, which was sent from the boat. He is on his way over to England to join in the production of South Pacific [reading]:

There is a strange anomaly in the existing copyright law which H, R. 5473 would correct. The fact that the operator receives a nickel every time one of my songs is played gives him an immunity from paying me any royalty. On the other hand, if the public were permitted to hear my songs in these jukeboxes without paying the 5-cent toll to the jukebox operator, the tavern keeper would be obliged by law to pay me a royalty. What an odd situation that is. If the operator exacts payment from the public, then the operator does not pay me for my songs; but, if the music is heard by the customer without payment of a

*

nickel, then the owner of an establishment has an obligation to pay. That is the existing law. It is the law only because the Congress in 1909 could not possibly have foreseen the development of jukeboxes through inventions which have revolutionized the entire field of entertainment in the last quarter century. If the present state of the art had been known in 1909, we may be certain that the Congress would not have created this anomaly.

Mr. BRYSON. From whom was that?
Mr. AHLERT. That is from Richard Rodgers.

Now, this is one little excerpt from Miss Dee's statement. Miss Dee is the young lady who wrote probably one of the biggest jukebox numbers for the year 1951. She wrote the lyrics of the song called, Too Young. I suppose you gentlemen, if you are jukebox listeners, would recognize it.

She says here:

I do believe that whenever my songs are performed publicly for profit my right to receive royalties for the performances should be recognized. It is recognized as to all such performances except those which are given by means of jukeboxes. Yet no performance is more clearly for profit than one where the patron must pay a nickel to an operator every time he wishes to hear one of my songs. Though the song is mine, I get no part of the nickel because of an outmoded law passed in 1909. Of course, loud-speakers were unknown in 1909, and the performances in penny parlors were hardly performances in public.

You know the old-style earphones as against that one thing that circulates throughout and across the street, in the hall, and outside the hall.

Thank you for your consideration.
Mr. BRYSON. Mr. Finkelstein.

STATEMENT OF HERMAN FINKELSTEIN, NEW YORK, N. Y., GEN

ERAL ATTORNEY, AMERICAN SOCIETY OF COMPOSERS, AUTHORS, AND PUBLISHERS

Mr. FINKELSTEIN. My name is Herman Finkelstein, 440 East Fiftysixth Street, New York. I am general attorney for the American Society of Composers, Authors, and Publishers.

Mr. Chairman, if I may, before going through my general statement, I should like to try to answer some of Congressman Rogers' questions addressed to Mr. Collins, and make one correction.

In talking to the controller of the society, I find that in Mr. Collins' department the cost of operation is 30 percent because of these branch offices; however, the general expenses of the society are approximately 21 percent. That is because in collecting from radio and television the expense is much less than in the branch offices to which Mr. Collins referred.

So that the general cost of operation of the society is 21 percent rather than 30 percent, if we may correct that figure.

Mr. Rogers. That is, the over-all expense in connection with the collection so far as ASCAP is concerned is 21 percent rather than the 30 percent that Mr. Collins testified to just a moment ago?

Mr. FINKELSTEIN. That is correct, sir.
Mr. ROGERS. He was testifying as to his particular field.
Mr. FINKELSTEIN. That is correct.
Mr. Rogers. So that leaves about 79 percent.
Mr. FINKELSTEIN. For distribution to members.

Mr. Rogers. For distribution on this credit performance formula that ASCAP uses.

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