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by that is, you recognize that you do not have to sell to any publisher of any type, do you not?
Mr. MERRILL. May I say this, sir? I know I do not have to. However, to survive and to make a living, I might be forced to. You see, these institutions have been set up. A young person coming into this business is imbued with a fire to create. I think in a sense he might be easy prey for any opportunity
Mr. ROGERS. Is that not true in every walk of life? Mr. MERRILL. I think, sir, it might apply a little more to a man who has written a word that he thinks the whole Nation should hear. Our people are a little more susceptible to it.
Mr. ROGERS. Because of that susceptibility, it is your opinion that Congress should go a little further in protecting their interests than other people? Mr. MERRILL. Sir, I think I speak for everyone in my society. I
I do not think we are after anything extra or any special consideration. However, if we were entitled to something, I think it would help us a great deal if we got it, because things are awfully tough.
Mr. Rogers. The thing I am trying to bring out from you is: What have you failed to get, that you are entitled to, up to this point ?
Mr. MERRILL. Sir, like I said earlier in the statement, I think possibly in the last year, more than a great many members of the society I have been affected by not receiving a royalty from a jukebox owner when my music was played.
Mr. ROGERS. At the time you sold that work to the publisher, you had some idea of the value, did you not! ?
Mr. MERRILL. Yes, sir, I did.
Mr. ROGERS. Of course, on the other side of the fence, the man you were making the bargain with expected to make a profit out of the transaction, did he not?
Mr. MERRILL. That is right.
Mr. ROGERS. If it went over as a smash hit, why, he would make more than
you, would he not? Mr. MERRILL. Yes, sir.
Mr. ROGERS. And if it failed to be a hit, then did he stand the chance to lose more than you did ?
Mr. MERRILL. That is a matter of opinion, sir, that has been argued pro and con_for a long time. Where this man sells, in a sense, a commodity, I sell a service. You have to weigh in a sense the commodity against service.
Mr. ROGERS. You feel the law as now drawn does not give ample compensation for services to those individuals like yourself who do compose popular pieces?
Mr. MERRILL. Yes.
Mr. ROGERS. The system, as set up by the publishers and the recording companies, is such that you would not share in something that you have put your life's energy in?
Mr. MERRILL. Sir, may I say this? I do not know the problems of the recording companies. I do not really know how they operate. I do not know too much about the way the publisher operates. I know it is difficult for a writer to make a living with things existing
as they do. Now, it would certainly help a great deal if we shared some of the jukebox profits. I know that.
Mr. Goodwin. Your position is that if somebody turns on the machine and grinds out tunes for public enjoyment and made money in doing it, whoever made the money in doing it ought to divide with the man who made it possible for him to get it to do it with; is that it?
Mr. MERRILL. Congressman, I say yes, especially if it is a nominal sum, especially if the man is not pressed against the wall like the writer is. I do not want him hurt, either.
Mr. BRYSON. Thank you.
Mr. BRYSON. Gentlemen, I wouid like to offer for the record a letter I have just received from Helen Sousa Abert, which gives some of the experience of her distinguished father, John Philip Sousa, who wrote, as you know, the immortal Stars and Stripes Forever.
Without taking any time to read the letter, I offer it for the l'ecord. (The letter referred to is as follows:)
PORT WASHINGTON, LONG ISLAND,
October 22, 1951. Hon. JOSEPH R. BRYSON,
House of Representatives, Washington, D. C. I understand that you will bring up this week before the Patents and Copyright Subcommittee, of which you are chairman, H. R. 5473, your bill to amend the Copyright Act.
I have given some thought to this bill, and have taken as a precedent, the conclusions my father, John Philip Sousa, came to, when testifying for an amendment to the copyright law early in the 1900's.
At that time it was whether the record companies could buy one copy of a piece of music, and by that 50-cent or $1 purchase, discharge all financial obligations to the composers and lyricists. The Congress at that time said "No."
I feel that the Congress was right in their decision that a 50-cent purchase was not sufficient compensation for those later profits of the record companies.
Though, here I might add for your interest only, as it's no part of my argument, that the early amendment was not made retroactive, and as Stars and Stripes was published before that date, no royalties had to be paid on the records until the renewal period, 28 years after it was copyrighted.
Your amendment of today seems to me to fall into the same category as that earlier one. Whether a jukebox operator by the purchase of one record has the right to use it over and over for profit without just compensation to the composer and lyricist. I hope the Congress this time will also say "No." Sincerely yours,
HELEN SOUSA ABERT. P. S.—The best of luck in the passage of your bill. We appreciate it. Mr. BRYSON. Miss Joan Whitney?
STATEMENT OF JOAN WHITNEY, FOREST HILLS, N. Y.
Miss WHITNEY. My name is Joan Whitney. I am a composer and author of musical works as well as a singer, and since 1942 have been a member of the American Society of Composers, Authors and Publishers. In addition, I have produced shows on radio and have been engaged in the music publishing business, though on a rather modest scale. Born and educated in Pittsburgh, I now reside at Forest Hills, N. Y.
My first successful composition was High on a Windy Hill. Since that time I have written more than a hundred compositions, of which the most recent hit song is Far Away Places. I also wrote So You're the One; It All Comes Back to Me Now; My Sister and I; When Your Heart Goes Bumpety-Bump; It's Love, Love, Love; Candy; That's the Beginning of the End; Ain't Nobody Here But Us Chickens; Money Is the Root of All Evil; Comme Ci Comme Ca; I Only Saw Him Once; Love Somebody, Yes I do; Dangerous Dan McGrew, and My Own Bit of Land.
In supporting H. R. 5473, I do not wish to elaborate on the theme of. my song, Money Is the Root of All Evil, but I do humbly submit that a serious evil exists when an industry is permitted to derive as much from the use of copyrighted musical compositions as does the jukebox industry, and pays nothing to those who create the works which make this income possible. Other industries making similar uses of copyrighted works are required by law to respect the rights of copyright owners, and from my observation willingly do so as a means of encouraging the creation of new works necessary to the survival of industries which profit from the use of music.
In urging passage of H. R. 5473, I plead not merely for the writer of today, but for the writer of yesterday and the writer of tomorrow. Most songs have a very brief life span. To the extent that certain authors are sufficiently fortunate or sufficiently able to create works which become part of the established musical life of the Nation, it is their hope that they and their families will enjoy an income from those works commensurate with their contribution to those who make a business of exploiting these works for commercial gain. The distributors and operators of jukeboxes should discharge their responsibility along with other users of music in rewarding the creators of these works for the limited period of copyright.
I suppose my concern for my future would surprise the gentlemen of this committee, but as a creative artist I know that my span as an author is apt to be very limited. While I have the ability to produce works which are pleasing to the public, I must make the most of my opportunities and do all in my power to make provision for the time when my works may no longer capture the popular fancy. The muse does not favor an author forever. Unlike other professions, authorship is one in which sometimes even the greatest diligence often fails to produce satisfactory results. Every author knows that he will have more failures than successes; all are constantly haunted by fear of the well running dry. I have had a fair measure of success to date but it is impossible to assume that this will continue no matter how much attention I may devote to my work. I am therefore very much concerned that the laws shall protect the form of property that I create in the same manner that it protects other forms of property. The only adequate protection which an author of musical works may have today is in seeing to it that he or she receives adequate royalties whenever copyrighted works are performed in public for profit. My annual royalties from the performance of my songs during the past 2 years have averaged $3,011.51.
We do not ask any more than what is in the public interest, namely, that writers should be encouraged to create new works by receiving a reasonable fee for the use of their works. H. R. 5473 would promote our established public policy by removing an existing discrimination and at the same time making our works available on a reasonable statutory basis to those who now benefit from a provision in the existing copyright law which we feel sure was never intended to apply to: jukeboxes and has given rise to a very serious invasion of the legitimate rights of authors. Mr. Bryson. We are very much obliged to you. Miss WHITNEY. Thank you.
Mr. AHLERT. Mr. Chairman, this is the last of our ASCAP witnesses. So, at this stage, I would like to have your permission to file in the record an excerpt from the Congressional Record of an article by Dr. Virgil Thomson, who is the music critic of the New York Herald Tribune. He has some comments on this bill. It was put into the Congressional Record by Senator Estes Kefauver. I would like your permission to submit that.
(The article referred to follows:)
MUSIC AND MUSICIANS
(Extension of remarks of Hon. Estes Kefauver, in the Senate of the United
States, Friday, August 10, 1951) Mr. KEFAUVER. Mr. President, I ask unanimous consent to have printed in the appendix of the record an article published in the New York Herald Tribune on July 29, 1951, under the heading “Music and musicians,” in reference to S. 1553.
The author of the article, Dr. Virgil Thomson is not only a distinguished American composer, but a critic of note, who has served as music critic of the New York Herald Tribune since 1940, and is the author of books of musical criticism, including The State of Music and The Musical Scene. A native of Kansas, Dr. Thomson is a member of the National Institute of Arts and Letters, and a chevalier of the French Legion of Honor. He holds degrees from Harvard and Syracuse Universities.
Among some of Dr. Thomson's distinguishe: contributions to American music are two operas, two symphonies, a number of choral works, and works for small instrumental groups, as well as incidental music for plays and films. His most recent film score was the music for the documentary film The Louisiana Story, which won for its composer even more acclaim than his previous musical scores for the United States Government documentary films, The Plough That Broke the Plains, and The River.
There being no objection, the article was ordered to be printed in the record as follows:
MUSIC AND MUSICIANS: THE KEFAUVER AMENDMENT
(By Virgil Thomson) One of the curious results of the recent investigation by a senatorial committee into organized interstate crime has been the proposal in Congress by Senator Estes Kefauver, of Tennessee, of an amendment to the Copyright Act. This law, passed in 1909, determines, along with other matters, the royalty due to copyright owners of musical works whenever these latter are made into gramophone records for purposes of sale. It also provides the legal basis for the collection by musical copyright owners of performing-rights fees. Such fees have been held collectible by Supreme Court decision for the use of music in restaurants, dance halls, hotels, and the like places, whether or not admission is charged. Other decisions have established the principle that radio broadcasts constitute performance for profit, within the meaning of the act, and are subject to copyright charges. Also that public playing of mechanical reproductions constitutes performance of a musical work.
JUKEBOXES PAY NO ROYALTIES
Our copyright law is far from ideal, but it does offer protection to authors and composers in all the main marketings of their work save one.
That one is the nationally popular jukebox.
For reason unknown to this commentator the authors of the Copyright Act specifically exempted from any payment of performing-rights fees musical uses that involve coin-operated machines in establishments where no admission is charged. In 1909, of course, such uses were minor-in a few nenny arcades and the lower saloons. But in the last 20 years the jukebox has become hugely popular. And although it contributes, along with all the other forms of mechanical transmission, toward reducing radically the composers' and publishers' profits from sheet music sales, efforts to remedy the injustice through amendment of the copyright law have consistently failed in Congress.
RACKETS IN THE INDUSTRY
Senator Kefauver has found a new approach to the problem, namely, the interest our Federal Government has in not being defrauded of taxes. It seems that there are 500,000 jukeboxes in operation in the country and that the annual gross intake of these is around $500,000,000. They are mostly owned and serviced, moreover, by large organizations in which criminal elements seem to have penetrated. Evidence of widespread gangster control of the jukebox owner-distributor industry was found by congressional investigators, in cities as far apart as New York, Los Angeles, Chicago, Kansas City, Miami, New Orleans, and Duluth. Nobody knows just how much money is made, who gets it or what methods of brute force are employed in its collection.
AMENDMENT'S TRIPLE ARM
Now the Federal Government not only enjoys receiving the taxes due it, it also aspires to put down criminal organizations. And prosecution for nonpayment of income tax is one of its arms. The Kefauver amendment to the copyright law gives it a further arm. It requires all companies owning or servicing jukeboxes to declare to musical copyright owners (or their agents) every month all the records that have been available in all the machines under its jurisdiction during that time. The great collection societies such as ASCAP and BMI are thus brought into the picture, with the same rights of policing public tavernş, demanding certified accounts and suing for redress in the courts that they enjoy with regard to other royalty collections. These certified accounts will be available, moreover, to the tax authorities. The whole jukebox industry will be thrown open to inspection through establishment of the copyright owners' right to collect performance fees. The fact that composers and their publishers will receive money hitherto denied them by law corrects a long-standing injustice; and this advantage is reinforced by two others, which facilitate the collection of Federal taxes and hiuder the operations of organized interstate crime.
HOW IT WORKS
The amendment specifies the payment of 1 cent per record side per week (a side being defined as 4 minutes or any fraction of that) as due for the presence of any disk in any jukebox. The charge is small and the accounting not difficult. Establishments charging admission are exempted, since they already pay, no owner or licensee of a jukebox being liable to pay a copyright owner twice for the same usage. Tavern-keepers owning a single jukebox are also exempt, unless the machine is serviced, under contract, by a larger firm.
The amendment seems to have been carefully reflected and phrased. The benefits offered composers are obvious. A loophole long obnoxious to them in the copyright act would be closed by its enactment. Congress has previously refused, however, to vote for that closing. The Kefauver amendment now offers Congress the inducement of augmented Federal revenues and also an instrument for exposing to public view and court action-criminal parasites that have fastened themselves onto a legitimate industry.
Mr. AHLERT. And, last but not least, an article which appeared in the New York Times—and I am sure this is a coincidence, it appeared on October 21, last Sunday. It is by Brooks Atkinson, the dramatic critic of the New York Times. He is here making a critique of the current Hammerstein show which opened in New York, "Music in the Air," a revival of that show, and I would like to read his opening paragraph. It is very short.
To see “Music in the Air” again is to be reminded of a dismal fact: There is not much good will in the world. But the great composers and songwriters are entitled to some of the credit for whatever good will there may be. In every part of the world their songs awaken sociable responses that have nothing to do with