The overwhelming majority of these creative, highly skilled performers vs unknown to the general public and do not even enjoy a moderate inc de tra their professions. They are the nameless musicians that comprise Ate" av symphony orchestras; they are the faceless voices that accomjuly fur m. known stars; they are the instrumentalists who make possible the specta: NEKA that make American popular music so popular around the world. They parvar a cupations as singers, musicians and actors that are among the lowest pud in most highly unemployed in our country. The Congress has recognized this fam and has devised grant programs to aid people in these arts occupations. În 221 of this, it is difficult to understand why the Congress would want to * protecting the multi-billion dollar broadcast industry from the necessity of par ing these people for the profitable use of their work. H.R. 2223, as it now stands, would protect the writer from those who wisả exploit his published work; it would protect the composer in a similar nati It would insure that the broadcasters receive payment from cabie operators væ convert over-the-air broadcasts to their own use and profit. It would proape 130 publisher from the indiscriminant photocopying or Xeroxing of publicat as P: it would do nothing to provide America's performers with the right to e even the smaliest amount of remuneration from the exploitation of their reccrut performances. This Council considers this to be a fatal omission and, unless corrected, a ** ous subversion of the quest for true copy right reform. Along with the AFL we have urged your Committee to correct this oversight. Uniess apprope a “ recognition is accorded the artists who create sound recordings by inclusit performance royalty, this Council cannot, in good conscience, support li & 2 Nearly every major country of the western world recognizes the cya....** inherent in a performance and the need to provide performing artists with Har compensation for the commercial use of their recorded performances. It is!æ the U.S. brought its laws up to date and in step with the rest of the 2 we a world. We are aware, of course, that some have expressed concern that broadening opposition to payment of performance royalties might slow passage of expregăt revision legislation. Some legislators have even expressed fear of bronaster retribution. These fears should be viewed in perspective. The broadcasters have a variety of other legislative objectives in this C ngren and in the copyright legislation before you. Indeed, they rightfully are sees 12 royalty payments to themselves when their programs are picked up and retrate mitted for profit by cable operators, H.R. 2223 grants them such a roystr We respectfully suggest that if royalties are to be paid to broadcasters by es * operators under such conditions then they should also be paid by the br 1! as when they "pick up" and exploit recorded programs created by recording ba panies and artists not employed by the broadcaster. The principle is the se Those who use another's creative work for profit should help sustain and ea courage the creator by payment of some remuneration. At present, the American recording industry and the many fine artists it en ploys are supported by the average purchaser of records from the local rec ri store. The massive broadcasting jukebox and background music ind form, & tribute almost nothing to sustain and encourage this creative soure- T..... we contend, is unjust to the artists and forces an unfair burden on the rec rủ cog sumer. Fortunately, H.R. 5345, authored by Representative Danielson and en sored by 20 other members of the House, offers the desired copyright profecis and encouragement for the performer. We suggest that the provisions of this bill be made a part of any legislation that would seek to qualify as a serious modernization and reform of our gyrat laws. The principles embodied in these provisions are endorsed by the Na'i ne F dowment for the Arts, the AFL CIO, the Recording Industry Association d America, the Section on Patent, Trademark and Copyright Law of the Anger ma Bar Association, the U.S. Register of Copyrights, the Associated Con% 2% *** Arts, which comprises the various state and local arts councils, and named af artists and authorities on America's performing arts. We respectfuliv urge that you use your good offices to insure that the needs of America's performing arts and artists are given their rightful place in Aid revision of the nation's law governing copyright that your committee may pro We look forward to learning your views on this most serious matter, JACK GOLODNER, Executive Secretary, PS The enclosures should answer any questions concerning performancs rovalty and this Council. If not, we would be happy to respond to any queries from your office. LIST OF OFFICERS COUNCIL OF AFI CIO UNIONS FOR PROFESSIONAL EMPLOYEES J. G. President: Albert Shanker. President, American Federation of Teachers General vice president: Hal C Davis, President, American Federation of MNICATI Trouanter · Rodner Bower. President, International Federation of Professional and Technical Engineers AFFILIATES OF THE COUNCH OF AFL-CIO UNIONS FOR PROFESSIONAL EMPLOYEES Actors Equity Association Amer est: Federation of Musicians, American Feueration of Frachers Amery an Federation of Television and Radio Artists After.eun Gnd of Musical Artists Brotherhood of Robopy Asline and Steamship Clerks Con.mihi cations. Workers of America Insurance Workers international Union International Alli, nee of Theatrical stage Employees and Moving Picture Mach to Operators. International Pederation of Prof so penal and Technical Engineers National Association of Bradea & Fruployees and Technicians, A year ag· mille stators and the radio networks were prop?', nå sources of employment for America s performing artista. Networks had their own tas gave in alta e flaboj kortit (tres Ty the networks and the stations the recorded quite festend of 1 re 1958 and singers. On the average 75 » of ali comuneres 1 rides progresBtg 18 jevoted to recordes non- e The performance royalty principle embodied in this legislation is supported by the National Endowment for the Arts, the U.S. Register for right, the AFL-CIO, the Recording Industry Association of America, the Ar can Federation of Musicians, the American Federation of Television a.... i. Artists, Actors Equity Association, the Associated Councils of the Art comprises the State and community arts councils), the Section or P Trademark and Copyright Law of the American Bar Association and the of AFL-CIO Unions for Professional Employees. Senator Hugh Scott, a primary sponsor of this legislation in the s summed up the raison d'etre for the measure when he said, "The real is whether or not a person who uses his creative talents to produce music be entitled to compensation from someone who takes the music and makes a jeś from it". Supporters of this legislation believe it is unfair that an individes nization or industry can lawfully take the creative work of others and w compensating them, exploit that work for their own gain. Artists and ment ing companies make records for the enjoyment of the general public-te profits or commercial broadcasters. But, under present law, it is the at citizen who purchases a record from the store who supports the many am and recording companies that provide us with the bulk of our ma broadcasters and others contribute relatively little. The broadcasters allege that they do contribute by popularizing je”recordings. But who is to say whether the use of recordings by Elton Joh Boston Symphony is benefitting the artists' popularity or that of the box: station? It is a common practice of many stations to ascertain from loca at what records are selling well and then play them in order to attractie” listeners. Obviously, their purpose is not to popularize a record or an are rather to ride the coattails of already popular recordings in hopes that Perde will improve the stations' audience and justify high advertising rates It is now possible for people to tape recorded music off the air. As t; x;" tice becomes more prevalent, the use of recordings by broadcasters min actually curtail record sales. The myth that broadcasters are assisting America's artists and ree ni me panies is just that—a myth. There are other fantasies being conjured it ponents of performance royalty legislation. Primarily, they relate to tre stitutionality of the proposed legislation and its economic impact on the of i cast industry. We think the following dispels these myths : I. There Can Be No “Constitutional Doubt" That the Production of a Navi Recording Is a Creative Activity Deserving of Copyright Protects * 1. Copyright Protection Covers Wide Variety of Creative or Intelle Efforts.-Copyright protection has never been limited to the "Wr. 2 “Authors" in the literal words of the Constitution. To the contrary, Co 2**** has granted a copyright to a wide variety of works embodying creative of tellectual effort, including such "Writings" as musical compositjors El* works of art, drawings or plastic works of a scientific or technical ek n ng photographs, motion pictures, printed and pictorial illustrations, merchant se labels, and so on. 2. Constitutionality of Copyright for Sound Recordings I pheld —-Both Congra and the Courts have recognized that sound recordings may be granted net right protection under the Constitution. In the Anti-piracy Act of 1971 wiem Congress conferred limited copyright protection upon sound recordings Senate Judiciary Committee concluded that "sound recordings are cleariv the scope of 'writings of an author' capable of protection under the Constitit, it S. Rep. No. 92-72, 92d Cong., 1st Sess., pp. 4 5. The Committee resected !!* constitutional objection once again only last year. 8. Rep. No. 16 Ai Ku Cong., 2d Sess., pp. 139-40, The Courts have expressly upheld the constitutionality of legislati m cording copyright protection to sound recordings. In Capitol Records. Įm Mercury Records Corp., 221 F 2d 656, 657 (2d Cir. 1955), the Court se 1 "there can be no doubt that, under the Constitution, Congress could give to de who performs a... musical composition the exclusive right to make and verd phonograph records of that rendition." In Shaob v. Kliendienst, 345 F. Supp. 589, 590 (D.D.C. 1972), a three-fer federal Court likewise concluded that the activities of sound recording 2014 "satisfy the requirements of authorship found in the copyright elsuse United States Supreme Court, too, has indicated that the copyright claus sa extend to “recordings of artistic performances,” Goldstein v. California, 412 U 8, 546. 562 (1973). Finally, the Copyright Office has advised that it is within Congress' constitutional power to grant copyright protection to sound recordings, 4. Creativity in Production of sound Recording. --Performers and record companies engage in creative activity when they use their artistic skills, talents, instruments and engineering to produce and record a unique arrangement and performance of a musical composition. The Senate Judiciary Committee has found creative copyrightable elements in the performer whose performance is captured and... the record producer responsible for setting up the recording session and electronically processing the sound and compiling and editing them to make the final sound recording' 8. Rep. No. 92-72, 92d Cong, 1st Dess, pp 4 5. II. Equitable and Economie Factors Overwhelmingly "Support a Performance Right for Sound Recordings. 1 Sound Recordings. Account for Three-Fourths of Radio Programming The bisic staple of radio programining is recorded music. The Senate Judi iary Committee has determined that 75 percent of commercially available time is used to play sound recordings Thus, recorded music accounts for roughly three quarters of stations' advertising revenges of a sout $200 million aiuta ly. Yet broadcasters who must pay for all their other types of programming pi nothing to performers or record companies for the prime programming nater, il they use to secure their audiences, revenues and equity values, 2. Recordings Have Repígood "Late" Performances Broadcasters used to pay for "live" performers but these artists have actually been replaced by their own recordings. It is inequitable for these recorded performances to be broadcast for profit without any payment being made to the performers, 3. Composers and Pubitshers Receive Perfo mance Royalties. Under the ex isting Copyright Law broadcasters pay the composer and publisher of the song that is played over the air in a sound record ng Bat the perform ers and recostal Company whose artistry and skill brought that composition to life in a recorded performance and whose creative contribution is at least equaj to, if not givater than that of the composer, are paid nothing 4. No "Fre Ride" for Record Companies The record companies do not get a free ride" from broadcasters Record compattijes purchase over $52 mail, f of advertising time from radio stations annus.lv about three times the futil projected performance rovalties under the bill Further, almost two thirds of the records played are "oldies" that enjoy few current sales if any Record companies and performers derive litte benefit from much mispray, but there recorded performances draw massive listening audiences for broadcasters and, in turn advertising revenues for the stations 5 Broadcasting Industry Very Printable The broadcasting industry in excvedingly healthy. Between 1967 and 1973 (the but year for which do ta are available) the pre-tax profits of radio stations rose 3 percent and advertising revenues rose 61 percent * 6. Royalty Fees Are Very Modest The proposed performance royalty fee to not burdensome. About one third of the nation s radio stations woud pay fore per day Another third wonid pay $295 ter das The renisining third of the stations large stations with more than $.90000 in annual advertising revenges - would make a modest payment of one percent of het advertising revenges This even a station earning revenues of $1 million annually would pay only 827 40 daily or $1 14 per hour to combetaste the ferformers musicians and record con.pin'es for the exploitation of their creative efforts. Clearly the pr formance poraities are fair and reasonable particnariy in light of the in,mete advertising revenues that recorded music produces The rate schedule is as followw More than 8.00 $ ཨ་༄། 8་་པཱ་ $.) under Annual Pee 1 per ent of net alvertising fever jos, Further, all news stations or others which do not rely heavily on rec råed music would pay only a pro rata share of the performance royalty pericnlage i hee attached article from Broadcasting Magazine for more recent data 7. Performance Royalty Consistent with Cable TV Royalties.—The pro ́" underlying the bill is identical to that supported by the broadcasters it 2 general revision bill. Broadcasters assert that cable systems should be revie to pay the broadcaster and copyright owners when cable TV picks up the he ca casters' over-the-air signal. In directly parallel fashion, broadcasters at s be required to pay the creators of sound recordings when broadcasters use da programming material for their profit. 8. Performance Royalty Recognized Abroad.—The principle of the bill wor at all radical. Almost all other Western nations require the payment of per formance royalties to performers and recording companies. Some of these payments are currently denied to U.S. artists and companies because our cam offers no reciprocal right. The primary reason that the principle has not test established here is that the last revision of the copyright laws took place in long before sound recordings became a significant source of progratulog ka terial for commercial exploitation by broadcasters and others. [From Broadcasting, Sept. 1, 1975.] RADIO 1975: BIGGEST YEAR IN THE MAKING National radio business has taken off this year as in no other of recent mer eft The radio networks are virtually sold out in key day parts and ser ori to make this their best sales year in more than two decades-collectivei) a 2 st for sure, and in some cases individually. National spot radio is more erratic but according to most accounts is rur- nt ahead of last year's pace by at least two or three percentage points and peras by several- either way, by enough to make a record. The status of local business is less clear. In some markets it's ahead of 374 levels and in some it's behind, depending on several factors, includi z the aggressiveness of local sales staffs and the extent of the recession's lo a., cat Generally, observers tend to think 1975 local sales will rise in total-whicż w mean another new record there, too--but that the old pattern of almost automat.f annual 6%-85% increases will not hold up in some markets. Network business, where much of the excitement used to be in prefelett a days, has of course dwindled to small potatoes by comparison with na 4 spot and local. In 1973, the latest year for which FCC ngures are avarate fr all three components, network billings totaled $59.4 million, national »p««£ €£°3@ to 83×2.8 million and local reached $1.2 billion. But although network is now the smallest component of radio business, late t it has become the liveliest. "Super," one network head said last week. "12: believable." said another. Both were talking about sales this year. Some trad of being almost sold out for long periods of the day. Others, though obs! St elated avoided the "sold-out" term as a matter of principles or of voterstition As one put it, "There's always a spot at 2 o'clock in the morning—or some time--that you can sell to someone out there." The best estimates available suggest that for the first seven months of 1973 national network sales in total-for ABC Radio's four networks and the CBS Mutual and NBC Radio networks-exoveded the comparable 1974 tupicada ber somewhere between 20 and 30%. Looking at it another way, C. Edward Little, president of Mutual, estimated that if total network bilings men Y match 1974 monthly totals for the rest of 1975, the year will still cote est 12-15% ahead of last year. Nobody apparently expects the rest of 1975 to fall back and merely keep stride with the last half of 1974. Even if it did. authorities figure term " radio would still have its best year since 1972, one of the best network ra years in recent history. And if gains maintain anything approaching the 200, 30% upside rate of the first seven months, 1975 should be network radox test since 1954, when FCC put network billings at $78.9 million. That, in 1**** is more than double what they were in the bottoming-out years of 165 While the radio networks agree their business is on the upswing stay@ reps and other sales officials offer differing assessments of spt me to Mostly they say sales are up, but they disagree as to how much “Ta bdness is just pouring in,” according to the head of one major-market arat ig group. A station rep with both large and middle-sized markets on his last ⚫H R. 5345. ༄ |