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Mr. HARRIS. That is all, Mr. Chairman,
Mr. GOODWIN. Mr. Raine, I don't know that this has any real pertinency to the bill we are now considering, and neither do I know whether you care to make any comments on it. But I have often marveled at the way record-makers contrive to record something, for instance, along the line of Miss Whitney's very excellent Far Away Places, and then, on the opposite side of the record, I find something that I don't care about hearing and probably never play.
Now, is my experience an isolated one or is it the fact that occasionally the companies do put two smash hits on the same record ?
Mr. RAINE. Well, if there are two smash hits on the same record it is a coincidence.
Mr. Goodwin. I am content to make the observation and not put it in the form of a question.
Mr. RAINE. I understand perfectly.
Mr. ROGERS. Some testimony has been given here to the effect that a large number of these jukeboxes are controlled by people in various territories. Now, in the manufacture and sales made by your company, what proportion would you say goes into the jukeboxes?
Mr. RAINE. I can guess for my company, which is Columbia. I don't know the figures for the other companies, and we don't make them available to each other. I think we are a little low. It is my judgment that we are low, and I think ours may be somewhere around 10 percent. I would suspect that the other companies have better treatment in the jukeboxes than we do.
Mr. ROGERS. Well, now, of that 10 percent are you in any position to know to whom they may be sold, that is to say, a large group that may have them? That is where one outfit may come in and buy a certain amount whether for this territory or that territory.
Mr. RAINE. We could learn. We could find out. We sell to distributors on an outright sale basis. Of course, we know the things they do. It isn't as though we sold and closed our eyes. We sell to them and they sell to dealers and to operators, and they have a system to facilitate the ready availability of records. I am sure that we could know if we wanted to know who bought them. I don't believe we do follow that.
Mr. ROGERS. You don't know who, but you do know that a certain percentage, as you say, 10 percent, goes into the jukeboxes, but as to how that 10 percent is controlled, whether by X over here and Y over here buys 1 percent of them or 3 percent of that 10 percent, you haven't any knowledge or information?
Mr. RAINE. I don't have any knowledge. It could be found out. It isn't secret information, but we don't have occasion to follow that closely, and the 10 percent is a rough guess, but it is somewhere near correct.
Mr..Bryson. Mr. Forrester has a question.
Mr. FORRESTER. Mr. Harris asked you whether you would have any objection to the charge being made on the basis of performance instead of on the basis of the record being retained for a week or more. How on earth would you arrive at the performance?
Mr. RAINE. That is a very complicated problem of administration that we have never thus far been troubled with. We haven't had to analyze that.
Mr. FORRESTER. The only way you could arrive at that would be to take the word of the jukebox operator?
Mr. RAINE. If we had to calculate that, I would probably get into some other business. I don't know.
Mr. FORRESTER. But you think it would be impracticable ?
STATEMENT OF CHAUNCEY CARTER, JR., WASHINGTON, D. C.
Mr. CARTER. My name is Chauncey Carter, Jr. I am associated with the law firm of Kirkland, Fleming, Green, Martin and Ellis of Washington, D. C. I am here in the absence of Mr. Hammond Chaffetz of that firm. We appear on behalf of the Automatic Phonograph Manufacturers Association and the Music Operators of America. The manufacturers association is composed of the four leading jukebox manufacturers who make approximately 97 percent of the jukeboxes.
The operators association perhaps represents 75 percent of the jukeboxes. We request that we be allowed to appear orally at a later date in January or February at the committee's convenience.
Mr. BRYSON. Where are you located ?
Mr. CARTER. No, sir. We are attempting to get some statistics and have gone to an accounting firm, and so forth, and will not be prepared for some time to come forth with them. We request that we be allowed to present witnesses at a later date, preferably after January, if that is convenient.
Mr. Bryson. Well, I don't know just what the situation will be. The committee will itself have to determine whether or not the hearing will be closed or whether or not the record will be held open. We do have a precedent for allowing personal appearances as you have heard today, making a brief introductory statement, and then filing written statements.
Mr. CARTER. Yes, sir.
Mr. ROGERS. Do I understand that you are counsel for the Automatic Phonograph Manufacturers Association ?
Mr. CARTER. I am substitute counsel, sir. My senior is counsel.
Mr. ROGERS. And that that association has within its confines or has the ability to ascertain how many jukeboxes there are in operation?
Mr. CARTER. We hope to be able to do so, sir, and we have embarked on that task.
Mr. Rogers. Can you supply for this committee the approximate number and, if so, how many own or operate only one and how many two or more jukeboxes ?
Mr. CARTER. We will try, sir. We will do our very best, sir.
Mr. Rogers. Do you think you could get that information to us by January?
Mr. CARTER. I think we can, sir. I think we can get a great deal of additional information. We have already sent out questionnaires to the operators, and we will try our best to get all of the facts. It was my understanding with you, Chairman Bryson, that we would be given a chance to present witnesses at a later date. We intend to bring people from all over the country to testify.
Mr. BRYSON. I did not intend to give any impression other than the one I have just stated, that it would be up to the committee itself to determine about having future oral hearings. But we do have a precedent for the filing of statements.
It would be interesting to the committee, and I am sure generally, to know how many jukeboxes there are in operation and what their income is. We have had some staggering figures here this morning.
Mr. CARTER. Yes, sir.
Mr. BRYSON. We would like to have more information as to the estimates.
Mr. CARTER. Could we not have the opportunity to bring before the committee some operators and some of the manufacturers' representatives before these hearings are closed? I don't think it would be sufficient for us to present written statements.
Mr. BRYSON. We have given adequate notice, and these witnesses here have come from distant points.
Mr. CARTER. Well, there are several thousand operators. The figures that have been given here today certainly have been very general and challenging. We would appreciate your giving us consideration, if you can do so.
Mr. Bryson. The committee wants to give everybody a full and free opportunity to present their views in this controversy. It is important.
Mr. CARTER. There are several thousand persons involved on this side and a comparative handful have appeared on the other side here today.
Mr. Bryson. I believe we were told that there were about 3,000 members of this Association of Musicians and Artists.
Mr. HARRIS. Mr. Chairman, excuse me, but at this point I would like to introduce a letter from the National Licensed Beverage Association. The Association asks to present a witness or submit a brief at a later date. They state in the letter:
This letter is to advise that the National Licensed Beverage Association will not be able to present a witness on October 25 for the reason that there has not been sufficient time for consideration of the bill by the board of directors, the members of which are widely scattered throughout the country. It is, therefore, respectfully requested that the National Licensed Beverage Association be allowed to present a witness at a later date if there are to be continued hearings, or if not that it be allowed to submit a brief for the record at a later date.
Mr. Bryson. I will have to ask the committee to determine whether further hearings will be held. I will take the responsibility of ruling that sufficient time, probably until January, will be given to file statements; but I would like to confer with my colleagues as to the right to present oral witnesses. I shall do that before the afternoon is over.
Mr. CARTER. Sir, may I add that we have 30 daysMr. FORRESTER. That would naturally bring up the fact, Mr. Chairman, that these people on the other side, if the further testimony to be presented isn't oral, won't have the opportunity of rebutting it. Mr. Bryson. It will make it necessary to practically have the hearing de novo all over again if the request that you have made is granted. But we will endeavor to reach a satisfactory solution to your request.
I take it you do not care to testify generally?
Todd, DILLON AND CURTISS,
Washington, D. C., October 23, 1951. Hon. EMANUEL CELLER, Chairman, Committee on the Judiciary,
House of Representatives, Washington, D. C. DEAR SIR: Your letter of October 10, 1951, announcing the hearings on H. R. 5473 by subcommittee No. 3 is greatly appreciated.
This letter is to advise that the National Licensed Beverage Association will not be able to present a witness on October 25 for the reason that there has not been sufficient time for consideration of the bill by the board of directors, the members of which are widely scattered throughout the country.
It is, therefore, respectfully requested that the National Licensed Beverage Association be allowed to present a witness at a later date if there are to be continued hearings, or if not, that it be allowed to submit a brief for the record at a later date. Sincerely yours,
RALPH E. CURTISS, Washington Counsel, National Licensed Beverage Assn. Mr. Bryson. Well, thank you so much. Our next witness is Mr. Sidney W. Wattenberg.
STATEMENT OF SIDNEY W. WATTENBERG, NEW ROCHELLE, N. Y.,
APPEARING ON BEHALF OF THE MUSIC PUBLISHERS PROTECTIVE ASSOCIATION AND THE NATIONAL MUSIC COUNCIL
Mr. WATTENBERG. My name is Sidney W. Wattenberg. I live in New Rochelle, N. Y. I talk for the Music Publishers Protective Association, Inc., and the National Music Council, Inc.
Mr. Bryson. Mr. Wattenberg, do you have a prepared statement? Mr. WATTENBERG. Yes, sir; I have filed a statement on behalf of each of the associations I am talking for.
Mr. BRYSON. Those have been filed with Mr. Harris?
Mr. WATTENBERG. Mr. Chairman and members of the committee, I listened to the written statement of Senator Kefauver and I have heard the statements of the witnesses who preceded me, and it would be an unjustified intrusion on the time of the committee if I were to repeat the arguments and the conclusions of these people.
The associations I represent support the passage of H. R. 5473 for the very reasons that you have heard several times today.
Mr. BRYSON. Did you state the names of the associations you represent?
Mr. WATTENBERG. Yes, sir; I did, but I will repeat them.
Mr. WATTENBERG. The first is Music Publishers Protective Association. That association is a trade association of the popular music publishing industry. Mr. BRYSON. Sheet music?
91590—51—ser. 11, pt. 1-46
Mr. WATTENBERG. Sheet music-and it has among its members some of the foremost publishers of popular music in the country today.
The National Music Council is also a nonprofit membership corporation, and it consists of 45 organizations of national scope and activity who are interested in the development of music as an art and the welfare of the creators and the performers of music generally.
There is one thought that I have heard expressed a couple of times today, and that is that this H. R. 5473 is an attempt to create a new right for the benefit of the creator of music, the authors and composers. I don't think that that is the correct way of stating the real purpose of H.R. 5473.
As I see it, the purpose of this bill is to remove from the statute a loophole, a free ride that was given to an industry 42 years ago. The only justification for the present coin-operated machine industry in taking advantage of this loophole is the identity of the name of the device. Outside of the fact that there was a device in 1909 known as a coin-operated machine and that there is such a machine today, there is no identity between the machines or their purpose or their method or manner of reproduction or their effect or any other characteristic.
Mr. ROGERS. You say that no new right is created under this bill? Mr. WATTENBERG. No, sir. We are not asking for a new right.
Mr. ROGERS. You are asking for 1 cent a week from an operator of two or more machines, are you not?
Mr. WATTENBERG. Yes, sir.
Mr. WATTENBERG. The right to collect for a public performance was recognized in 1909.
Mr. ROGERS. And they recognized it by giving 2 cents a record, did they not?
Mr. WATTENBERG. No, sir. That is not the right of public performance. That was the mechanical right. That was recognized under the compulsory license provision, and for which a 2-cent statutory royalty was provided. The Congress in 1909 did not fix any royalty or fee insofar as the amount is concerned for public performance for profit.
Mr. ROGERS. Well then, if they didn't fix any then and we are fixing it now, that is a new right, is it not?
Mr. WATTENBERG. Well, sir, I don't know whether I am splitting hairs or not. I feel that the right was recognized, and it is just a question of to what industry the right should be extended, whether it should be extended to this industry, which is, as I see it, just as new as the television industry, which came into existence long after the passage of the act.
Mr. ROGERS. What is your definition of a right!
Mr. WATTENBERG. A right is an intangible property or chose in action, as we lawyers would call it. It is a property that can't be seen. It is very effective in that the law recognizes it.
Mr. ROGERS. Well, the law recognized it when they passed the act in 1909, did it not?
Mr. WATTENBERG. They did. They recognized the right of public performance.
Mr. ROGERS. But they didn't provide any payment for public performance, did they?
Mr. WATTENBERG. Not directly, but they certainly_recognized it and made it possible for the author to collect for it. But wbut they