Harrison's Reports (1932)

Entered as second-class matter January 4, 1921, at the post office at New York, New York, under the act of March 3, 1879. Harrison’S Reports Yearly Subscription Rates: United States $15.00 U. S. Insular Possessions. . 16.00 Canada, Alaska 16.00 Mexico, Spain, Cuba 16.00 Great Britain, New Zealand 16.00 Other Foreign Countries.. 17.60 36c a Copy 1440 BROADWAY New York, N. Y. A Motion Picture Reviewing Service by a Former Exhibitor Devoted Exclusively to the Interests of Exhibitors Its Editorial Policy: No Problem Too Big for Its Editorial Columns, if It is to Benefit the Exhibitor. Published Weekly by P. S. HARRISON Editor and Publisher Established July 1,1919 PEnnsylvania 6-6379 Cable Address : Harreports (Bentley Code) A REVIEWING SERVICE FREE FROM THE INFLUENCE OF FILM ADVERTISING Vol. XIV SATURDAY. MARCH 12, 1932 No. 11 AN ENLIGHTENING DOCUMENT FROM ABRAM MYERS TO THE HOUSE COMMITTEE ON PATENTS A brief memorandum, dealing with music tax and film copyright abuses, has been submitted by Mr. Abram F. Myers, General Counsel of Allied States, to Honorable William I. Sirovich, Chairman of the House Committee on Patents. This memorandum is written so intelligently that it will exert, I believe, a great influence on the members of the Committee, inducing them to make the copyright law changes sought for. In his argument for music tax relief, Mr. Myers brings out three important points : First, that the exhibitor is charged twice for the same right; secondly, that he has no choice of rejection since the copyrighted music is recorded on the film itself, which he buys directly from the distributor and in which the American Society of Composers, Authors and Publishers hold no proprietary rights ; and thirdly, that he is given no protection in case the copyrighted music that is recorded on the film is an infringement of copyright held by some other author, not a member of the Society. .After going into details as to the manner the exhibitor was required during the days of the silent pictures to pay royalty to the Society — in accordance with his seating capacity, Mr. Myers says: “Since the introduction of sound the music comes to the exhibitor recorded on the film itself, and as the recorded music is all that is presented in the overwhelming majority of independent theatres today, it results that such exhibitors have no choice whatever as to the music they shall play. The American Society has contracts with the distributors which require the latter to stipulate in the license agreements that before the exhibitors shall show any, films containing copyrighted music they shall procure a license from the American Society. Thus a theatre owner cannot play a picture and defend a proceeding for copyright infringement on the ground that the composition is really not new, but must take out a license before he can show the film at all. “In this connection I would remind the Committee that copyright is a mere license to conduct a lawsuit or prosecution; it does not guarantee the originality of the composition. * * *” The manner by which the exhibitor is made to pay twice for the same right is e.xplained by Mr. Myers briefly as folloW'S: First, the exhibitor must obtain a license from the Society for the right to play any musical composition, the copyrights of which are held by any of the members of the Society ; and secondly, the producer forces the exhibitor to pay for the right to reproduce in his theatre copyrighted music, which is recorded on the film, a right he already has if he holds a license from the Society. The producer derives his power to demand such a payment from a clause in the contract between him (the producer) and the Society, which clause reads as follows : “6. The license herein granted and agreed to be granted in respect of public production or reproduction shall, as to any musical compositions which are or which may during the term of this contract be in the repertoire of the American Society of Composers, Authors and Publishers (hereinafter referred to as the Society), apply only for such public production and reproduction in theatres and places of public entertainment which at the time hold or may obtain licenses from the Society to publicly perform the musical composition in question. * * ♦” Connect this Clause with Clause g and it will be perfectly clear to you why the exhibitor is made to pay twice for the same thing: “Licensee (the producer) agrees to pay Licensor (the Society) for the license hereby granted in the following sums: “Two and one-half cents (2j4c) during the first year of this agreement for each seat in each theatre * * * in which any musical compositions covered by this agreement may be publicly produced or reproduced under this license. * * *” 'I his money, with a "revengeful profit,” is collected by the producer from the exhibitor in the torm, as you know from experience, of score charge. That is how the exhibitor is compelled to pay twice lor tne same right. As said in these columns before, this paper feels that those who compose music are entitled to a remuneration from those who use the product of their brains for profit. But the Society, which represents their interests, in trying to protect their rights by making it impossible for those who use their copyrighted compositions to evade payment, made it possible tor the producers to collect, not only what is due to the members of the Society, but many times more. In other words, the producers are enabled, because of the clause I have just mentioned, to profiteer, and the Society is unable to prevent them from so doing. Let us see how this profiteering is made possible : The producer pays to the Society five cents (assuming that this is the fourth or fifth year of the agreement between each producer and the Society) for each seat contained in the theatre of the exhibitor who plays the films of the licenseholding producers (and all the producers hold such a license.) Thus the producer pays to the Society, in the case of an exhibitor whose theatre has five hundred seats, twenty-five dollars a year. Assuming that such exhibitor rents films from three producers, the three combined pay to the Society, computed on the number of seats this exhibitor has, seventy-five dollars a year. But what is this exhibitor made to pay? If he changes three times a week, he pays, in the form of score charge, anywhere from five hundred to seven hundred and fifty dollars a year, for he is charged no less than two and one-half dollars a show for score. .And this figure holds true perhaps only this and last year ; in the old days, he was robbed, as you very well know. And the Society cannot prevent this abuse. Under the circumstances, the exhibitors are entitled to relief. So Mr. Myers’ prayer to the Committee on Patents is neither unjust nor unfair. The charge for the rights to use the Society’s copyrighted music should be made to the producers without any reference to the seating capacity of the exhibitor’s theatre, and the producer should amalgamate it with his film’s rentals; it is unjust and unfair for the Society to make it possible for the producers to “gyp” the exhibitors, and it is beyond human rights for it to leave no way out for the exhibitor but be subject to such an abuse since the music, if any, is recorded on the film and he must play the music if he must play the film. In dealing with the film copyright abuses, Mr. Myers brings out a point that should go a long way in convincing the Patents Committee the necessity for reforms. He points out to the fact that the producers consider the holding over of film, no matter what the circumstances, a violation of the copyright law and collect from the exhibitor damages that are based, not on the value of the film rentals for the days the film had been so held over, but on the provisions of the law, which stipulate fines ranging anywhere from $250 to $5,000. If the holding over of film by the exhibitor, even with the consent of the representative of the producer, is a violation of the copyright law, then the breach of contract also on the part of the distributor should be made a violation of the same law, enabling the exhibitor to collect, as damages, not the amounts determined by the contract, but the fines specified in the copyright law. Unless the Court of Appeals to which the Bijou Theatre case, of Boston, has been referred, decides against MGM, the copyright law should be so amended as to make a breach of contract dealing with copyrighted articles a breach of the copyright law by either party. In this case, the lower Court decided that holding over a film is only a breach of contract. Mr. Myers closes his memorandum as follows: {Continued on last page)