5

-house publishing company was a condition of an artist getting recorded. Label owners could, with a stroke of the pen, split songwriting credits [and therefore royalties] by adding names or pseudonyms to the copyright. The most famous example at Chess was "Maybelline," credited to Chuck Berry, rock n'roll deejay Alan Freed and Russ Fratto, the man who was printing up the record labels for Chess at the time."

Chess/Arc Music was hardly alone in this practice; Atlantic Records was also notorious, and even famous composers such as Duke Ellington were forced to share authorship credits and royalties with their music publishers. In his book "Hit Men," Frederic Dannen stated regarding the independent labels:

The pioneers deserve praise for their foresight
but little for their integrity. Many of them were
crooks. Their victims were usually poor blacks, the
inventors of rock and roll, though whites did not
fare much better. It was a common trick to pay off a
black artist with a Cadillac worth a fraction of what
he was owed. Special mention is due Herman Lubinsky,
owner of Savoy Records in Newark, who recorded a star
lineup of jazz, gospel, and rhythm and blues artists
and paid scarcely a dime in royalties.

Dannen also quotes Hy Weiss, founder of the Old Town record label, as stating "What were these bums off the street?" and as defending the practice of giving Cadillacs instead of royalties with reasoning that evokes the memory of Earl Butz, President Nixon's one-time Secretary of Agriculture: "So what, that's what they wanted. You had to have credit to buy the Cadillac."5 Apparently even those songwriters without an appetite for Cadillacs had no choice but to give up their copyright:

[Levy] saw nothing wrong, for example, in putting his name on other people's songs so that he could get writer's as well as publisher's royalties. When Ritchie Cordell wrote "It's Only Love" for Tommy James and the Shondells, Morris [Levy], [Cordell] said, "gave me back the demo bent in half and told me if his name wasn't on it, the song didn't come out."6

...

Id. at 185. Freed was indicted in 1960 in a payola scandal and admitted taking $2,500. See Frederic Dannen, "Hit Men" 43 (1991).

5 Id. at 49.

6

as

Bunk Johnson, a pianist and bandleader, is quoted in Dizzy Gillespie's autobiography "To Be or Not to Bop" (page 298) follows:

A lotta guys who weren't keeping up with what was
going on [with copyright law] would get a [recording]
date, so the [record company's] A&R man, or some
fellow, ofay or whatever, would say "O.K., gimme a
riff. You know, just make up a head. We don't need
no music; we're gonna record."

So the cats would record, make up something. And
they're actually creating the music right on the
record date. Now, when it comes out, they wouldn't
completely beat them, but usually the guy, the A&R
man, had his own publishing firm or his buddy's got
one and right away he would stick in all of this
material because you have recorded it and you didn't
have it protected and in order for him, he says, to
save the material, he's put it in a publishing company.
The publishing company would give you one of them jive
contracts, where you'd never get no royalties. So this
was a rip-off.

The music industry's historically poor treatment of jazz, blues, and popular musicians led to a recent editorial in the June 10, 1995 issue of Billboard magazine, part of which states:

One of the music industry's best-kept secrets
for decades centered on an ugly period of
economic injustice often perpetrated by owners
of masters and song copyrights against artists
and songwriters who mainly made their way (if
not much of a living) in the R&B and blues fields.

An article accompanying the editorial notes that

Old recording contracts often saddled unrepresented
artists, most of them African-Americans, with
royalty rates as low as 3% of wholesale or 1%
of retail price. Still other artists accepted
no-royalty "buy-outs" of between $50 and $200
per record.

Mr. Chairman, I do not raise these points to disparage the music industry or to suggest that these represent today's practices. But this unfortunate past is relevant to H.R. 989, because as currently drafted, the bill will enforce these very contracts for another 20 years.

Nor Mr. Chairman, am I saying that all publishers are evil or

7

that all contracts are unfair. That's not the case, and some record companies/publishers are revising old contracts to give artists a better deal.8 Authors need publishers, and publishers need authors. I have an excellent, long term relationship with my publisher, and I am an avid purchaser of both books and sheet music. I appreciate the efforts publishers undertake to get a work to market and make it successful, and I agree they should get the full benefit of their bargain. But I don't agree that contracts entered into decades ago should govern a situation neither side bargained for a grant in 1995 of a new term of 20 years copyright. It is only reasonable and fair to grant the new copyright to authors, thereby permitting the author (or his heirs) to sit down in 1995 and say to the purchaser of copyright: "We now have a new right, how do we fairly negotiate a deal in 1995?"

No one can refute Mr. Bono's observation at the Pasadena hearing that 99% of songwriters or their families would want the copyright back if given the chance. It is my understanding that music publishers may not support a bill that does not give them the copyright. Indeed, music publishers may also seek to delay the termination of transfer provision in Section 203 of the 1976 Act for copyrights assigned on or after 1978. This section says that the author can get his or her copyright back 35 years after it was assigned. Music publishers are supposedly seeking to make the songwriter wait even longer. But there is no connection between extending the term of copyright and Section 203.

This proposal will place songwriters in a worse position than they are under today's law. For this reason, the Nashville Songwriters Association has said that they would rather have no bill than a bill that includes the music publishers' proposal.

But the unintended negative effects of the bill as drafted aren't limited to assignments made from 1978 on. For works that were first published between 1920 and 1933 and for which a termination of transfer notice under Section 304 of the Act has not been filed, the author cannot get his copyright back for the new 20 year term, even if he wants to, because the 5 year window for termination is past. As ASCAP's lawyer testified at the Pasadena hearing, in response to a question from Mr. Becerra, barring these authors from getting their copyright back was deliberate. The reason given was that if the work was valuable, the author would have already terminated. This response blames the victim. If a work is commercially valuable for the publisher, it is valuable for the composer. And, of course, how could a composer have known in 1978 that he was supposed to file a notice with the Copyright office because 17 years later Congress was going to grant an additional 20 years copyright?

8

8

Fortunately, the problems with H.R. 989 can be easily fixe and your good intentions full realized. As discussed more below, all you need do is either vest the proposed extra 20 years automatically in the author, either following the approach already taken in the bill, or, alternatively and this is my preference - by going to a life plus 70 term for all works, regardless of when published.

A Brief Review of Term of Protection in the United States

In order fully to understand the provisions of H.R. 989, a brief review of the history of the term of protection in the United States may be helpful since H.R. 989 reaches back as far as works first published in 1920.

Article I, section 8, clause 8 of the Constitution empowers Congress to grant authors the exclusive right to their writings "for Limited Times," but without any guidance as to what the phrase means, other than, obviously, not permitting perpetual copyrights. Congress has not been particularly generous in granting copyright protection, so the limits of the Constitutional power have never been tested.

10

11

The first U.S. Copyright Act, the Act of 1790,9 began the pattern, only broken 186 years later in the 1976 Act, of measuring copyright from an event other than the author's life. From 1790 to 1908, that event was filing a prepublication title page of the work either with the clerk of the district court where the author resided (from 1790 to 1869) or with the Library of Congress (from 1870 to 1908). From 1909 to 1977, copyright was measured from the date of first publication of the work.

9 Act of May 31, 1790, 1st Cong., 2d Sess., 1 Stat. 124.

10 The 1976 Act was effective January 1, 1978.

11

12

By contrast, the first French Act, that of 1793, was based on the life of the author. In 1814, the British went to a term of 28 years plus the remainder of the author's life if he or she was alive at the end of the 28 year period. 53 Geo. III, ch. 156. In 1842, the British switched to a term of 42 years or life of the author plus 7 years, whichever was longer. 5 & 6 Vict., ch. 45. In 1911, England, as a result of its adherence to the Berne Convention, went to life plus 50. (The 1908 Berlin Berne Convention had stated a desire for a life plus 50 term, but that term did not become a requirement until the 1948 Brussels Convention).

12 An exception was provided for so-called "Section 12" works: unpublished works that were typically performed and not sold in copies, such as motion pictures and speeches. Although the statute.

9

Beginning in 1978, the basic term was switched to life of the author plus 50 years.

The 1790 Act

15

13

The term set forth in the 1790 Act (like much of that Act) was derived from the 1710 English Statute of Anne:14 an original term of 14 years from the date the title of a prepublication copy of the work was filed with the clerk of the United States district court, followed by a second renewal term also of 14 years for the benefit of the author or the author's executor, administrators, and assigns if the author was alive at the expiration of the first term and the work was again filed with the district court. If the author died during the first term, the work fell into the public domain at the expiration of that term. And if the author lived until the renewal term, but failed to timely renew, the work also fell into the public domain. If the author died during the renewal term (and a timely renewal had been made) rights were owned according to the author's bequest, or if assigned, according to the assignment.

The 1831 Act

In 1831, at the request of Noah Webster, Congress doubled the original term of copyright to 28 years. The renewal term stayed

16

did not provide a term for these works, the courts held that the term was measured from the date of registration with the Copyright Office.

13 17 U.S.C. section 302 (1978). For works created by corporations the term could not be measured by the life of the author, and is instead set at either 75 years from the date of first publication or 100 years from creation, whichever occurs

first.

14 8 Anne c. 19 (1710).

15 Interestingly, the Statute of Anne and all of the colonial statutes, as well as the Continental Congress's May 2, 1783 resolution urging the states to adopt interim copyright laws measured term from the date of first publication of the work. No evidence has turned up explaining the 1790 Act's departure from this prior practice.

16 Act of February 3, 1831, 21st Cong., 2d Sess., 4 Stat. 436; W. Ellsworth, COPY-RIGHT MANUAL 21-22 (1882). Ellsworth was Webster's son in-law, and a member of the House of Representatives at the time of this Act (including the Judiciary Committee, upon whose behalf he reported out the bill), 52 ANNALS OF CONGRESS,