NAB reports (Jan-Dec 1935)

PUBLISHERS QUIT ASCAP New complications in the swift-moving music copyright situa¬ tion arose this week when the firms of Harms, Witmark, New World Music, and Remick, controlled by Warner Brothers, notified radio stations that their agreements with the American Society of Composers, Authors and Publishers terminate on December 31, 1935, and that after that date stations would be required to obtain licenses from these publishers or face injunctive proceedings or damage suits. The letters followed signature of the NBC and CBS and Station WCAU with ASCAP for five-year extension of their present contracts and after the government suit against the Society was adjourned until November 4. This action means that ASCAP will be without this important group of publishers after December 31, 1935. What action these publishers will take with respect to the Government suit, in which they are named defendants, w'as not known. MANAGING DIRECTOR UPHELD Near the close of the meeting the Managing Director stated that the second letter of Mr. Levy, including the telegram from Presi¬ dent Ward, addressed to the NAB membership stated that his act in sending Mr. Hostetler's letter to the membership w’as not an official act of the NAB. He asked that the Board either approve or disapprove his action. The Board unanimously approved the action. SPENCE MAKES REPORT E. M. Spence, chairman of the NAB Convention Committee, re¬ ported that reservations at the Broadmoor Plotel had exhausted all space at that hotel for the Convention and that the Antlers Hotel was caring for the overflow. He said that most of the set speeches for the meeting had been cancelled in order that adequate time would be provided for discussion of copyright and other important matters. This last minute change was desirable, he said, because it would be impossible to crowd into the sessions of the meeting all of the speeches previously planned and give ample time for members to discuss their mutual problems. In view of the late¬ ness of the date, he said, it was virtually impossible to change the date of the Convention although he expressed regret at the fact that the Broadmoor Hotel was unable to take care of all delegates at the headquarters hotel. ASCAP TRIAL ADJOURNED The trial of the United States Government against ASCAP alleg¬ ing violation of the Sherman anti-trust laws was postponed on June 20 until November 4. The recess came by agreement among counsel with Federal Judge Henry W. Goddard, who announced at the out¬ set of the trial June 10 that he would have to move to the motions bench on July 1 and desired to have argument completed by that time. At the time of adjournment William J. Benning, program director of WTMJ, Milwaukee, was on the stand. He had been asked to produce program records of WTMJ going back to 1922 and a delay of several days seemed inevitable before this data could be accumulated. It was agreed by counsel that a postponement W'as desirable, particularly since it was obvious that the government could not complete its case by July 1, when Judge Goddard would leave the bench. There was little of particular import developed during the few days of the actual trial. Great numbers of exhibits were placed in the record by Nathan Burkan, chief counsel for ASCAP. Direct examination of witnesses called by Andrew W. Bennett, special assistant to the .\ttomey General, was comparatively brief, but the cross-examination by Mr. Burkan was lengthy. On several occasions during the trial, Mr. Burkan referred to the five-year extensions which the networks and WCAU, Philadelphia, had negotiated with ASCAP on the eve of the trial’s opening. He said there was no question of oppression or reasonableness of the charges for music involved in the suit, because several of the “most important units” of the industry had entered into the five-year extensions at a figure even higher than what they had paid before. The first witness was Dr. C. B. Jolliffe, chief engineer of the FCC, who appeared June 12 and testified to the interstate commerce aspects of broadcasting. The next witnesses were Ravmond V. Robinson, chief of the cat¬ alog and index section of the Copyright Office, Library of Congress, and William P. Siegfried, clerk in the same office. They described the procedure followed in the registration of copyrights, numbers in the public domain, and similar routine data on copyright regis¬ trations. Thomas Belviso, NBC music librarian, was then called and he sought to show, under examination by Mr. Bennett, that the station and the network cannot function without the ASCAP catalogue. Mr. Burkan objected to the testimony, and sought to bring out that broadcasters and other music users had available to them the cata¬ logues of the SESAC, AMP, and Ricordi, as well as the public domain music. The testimony of Richard Bannier, CBS musical librarian, came next. He explained how musical selections were cleared for net¬ work use, including restricted numbers, and testified also that it was impossible to build network shows without the use of ASCAP music. Mr. Benning testified that WTMJ had endeavored to operate without ASCAP music and found it impossible to meet the public demand without it. WTMJ, he asserted, held numerous licenses from other copyright groups, but found that some 90 per cent of the music performed was from the ASCAP catalogue even after efforts had been made to eliminate ASCAP music. Mr. Benning declared that a daily record of musical compositions performed on musical programs on WTMJ had been kept, and Mr. Bennett sought to get into the record a table showing the propor¬ tionate use made of ASCAP music. To this Mr. Burkan objected, and was sustained by Judge Goddard. This was down on the contention that the programs themselves were the best evidence of the use made of the music. Finally, the government agreed to produce the program logs of WTMJ on subpooena, and at the same time Mr. Burkan subpoenaed all of the program records of WTMJ from 1922 to date. It was then brought out that several days at least would be needed to gather this data, and following Mr. Ben¬ nett’s visit to Washington the parties agreed in chambers with Judge Goddard for the postponement until November 4. DUFFY BILL FAVORABLY REPORTED The Senate Committee on Patents reported favorably to the Senate the Duffy Copyright Bill (S. 3047) which would eliminate from the present copyright laws the $250 statutory minimum dam¬ ages for innocent infringement of music copyright. The bill was considered by a subcommittee of the Senate Patents Committee consisting of Senator Homer T. Bone of Washington and Senator Wallace H. White of Maine. The report deals with the subject of copyright groups and mini¬ mum damages in the following language: “In regard to the infringement portions of the bill, the outstanding problem is that of statutory damages. Under the present law, for most types of literary and artistic works, an author or composer, whose rights have been infringed, is allowed a minimum of $250 without proving any actual damage from the infringement. “The existence of such a provision, as well as some others of the remedial provisions, has a significance much larger than the mere matter of collecting damages. Producers and consumers of literary and artistic works make use of these provisions as bargaining points in their original contracts of purchase and sale. It is believed that such use goes far beyond what should be expected from the nor¬ mal reliance of property owners upon the law to defend them against unauthorized uses of their property. Indeed, it is believed that both producers and consumers find their chief use for these provisions of law as aids to the ulterior purpose of endeavoring to extract better bargains in their dealings with one another. It is believed, further, that this constitutes the true reason why the pro¬ ducing and consuming interests exhibit such profound concern re¬ garding them. “The committee is firmly of the opinion that to eliminate the statutory minimum of $250 for infringement without proof of dam¬ age is to eliminate the chief factor in the use of the law for bargain¬ ing, sometimes for coercive purposes, between producers and con¬ sumers of copyrighted works. Moreover, since 1909, w'hen the present law was enacted, the methods of using copyrighted works have developed with amazing rapidity. The range of the use of such works has correspondingly increased. A piece of copyrighted music may thus be publicly performed on a phonograph in a boot- black stand or on a broadcasting network covering the continent. For the law to attempt to fix a specified sum as minimum damages, in view of the breadth of this usage, would seem wholly un¬ reasonable. “Accordingly, entirely apart from the ulterior use of the minimum statutory damages under the present law, it is deemed necessary to make the change w'hich the bill contains. This change does not • Page 860 • 4