Variety (Mar 1936)

hi US IC PLUG LISTS Warning: to the music irtdustry agawst-permitting singers on radio programs to change the lyrics of songs was issued last week by John G. Ealney chairman of, the Music publishers- Protective .Association^ Paine urged in a circular letter that publishers give thorough considera- tion, to* such, requests- and. that even, if they're: Inclined ta Extend pexmls> s^tt they should? collect heavily for the right, _ parodying- qfc.a song,, wrote Pains; Bejiausly endanger #s value, espe- clauy when the: tune/, is hroadcBtet; There '• 'is a bharicflt that the parody vttfi captors the public fancy and re - julfe in destruction of the commer- cial value of the original* It i» Faine's contention: that the heat way lot the' paWEsherst ta pra- Ktct theiir song properties. Is to make tte- exception- in any case and? insist that the. lyrics, be. sung, as. is ox not at ant Commercials frequently ask tor pevmfoion to substitute lines in the lyrics because they consider some thought contained therein to be inimical to the product. A case ra point of not so long, ago was Lucky Strike's editing of 'The Gen- tleman Obviously Doesn't Believe' (Shapiro - Benndtein}. The acconnt didn't like the line which described the. 'gentleman's HjpsT as never 'hav- '"T)een 'caressed by a cigaret.' Board of directors- o£ :,the Ameri- can Society ; " of Composers, Authors and* Publishers, Monday (IS), held its. deferred monthly-meeting for February,, with dlacussltma. mostly confined to routine matters-, because of the smalt attendance. Annual nxeetihg of the;,' organisation has been-set for -Thursday; .(2ft).. .,...-. It was learned: by the. publisher faction on thei'holardl: last, Weelc that Its cohcerh over personal liability that might ensue Warn; the failure Ub- notify the networks of Warner Bros.' withdrawal from ASCAP Jan» i had ne> basis lit fact. Such not- ice, it developed!, had' been sent; out h*.th«-.Society. eight weefe* ag».■' Nbi action was taken at Monday's gathering on the proposal' that Na- tlmin Burkant general- ASCAP coun- fcefcbe asked 1 tor define his position ta»regard to. the respective rights af a; publisher an* the writer in a .copyright. In helping, GBS- prepare .fts-answer to the WB infringement waits the Burkarr office 'argued that WB could not .stay'the network from using its works since half the copy ^ right ijfas. cbnffieUielct 1 by the writ- ers, who in turn had'assigned their 60% rights to the Society. The pubs fear that such theory will, if up* held by-the court, serve-to weaken their own position, which- has -aK Ways 1 been that the. copyright when taken out by the publisher is 100%- ms and that any benefits accruing therefrom, to the writer is at the consent of; the publisher. Monday's' meeting elected td the writer list four active members and six non- participating members. Ac - tive newcomers are At Jacobs, Larry Toell,. William Haid and, El- ^ Rtemiqk barren, while the non- Participating group consists of Boyd Bunch, Edward Harris; Du- 5S, He yward, Langston Hughes, William Grant Still an* Albert Hay Malotto. Bi»ke-Johnfia B Score for Crosby, Sefect Publfehmg Burke Arthur jonns lert Saturday (14) for Hollywood commence on the score of the ] auction that Bingr Crosby will 'Sir « I s lndle c °nteact with.Eman 25".- ~ heh ' Deal was s&t toy Weli-0> Keete( times? 0 ' itU3i<r w111 Polish. Johnson to pro- do n- Rock- the Most Played on Air To familiarize the trade with the tunes most on the air arou.id New. York, the following is the listing of the songs most played, on . the cross-country networks last week, in relative standing, according, to the approximate number of combined plugs on WEAF, WJZ, and. WABC* Let Yourself Go Goody Goody All My Eggs in One Basket "Alone Lights Out Lost Let's Face the Musi I'm Shootin' High Please- Believe Me- lt's Been So Long ; Lovely Lady ' Rendezvous in H'onoluli. Wake Up and Sing Sing- an Old- Fashioned Song You Hit the Spot Your Truly is Truly Yours You Started.' Me Dreaming; Melody f ront the Sky If You Love Me Alone at a Table for Two Cling. To Me Breakin' in a Pair Shoes BUit'ding Up; To a, Letdown l# You Love Me Green. Fields and Blue Birds EKFL Opposes Paine s Complaint in $189,000 Suit as facomptete Electrical Research Products, Inc., last week sought to have the State Supreme Court, New. York County, dismiss- the 1180,000. suit of John G. Paine; as trustee* on the ground that the complaint does-not show that" the musical works-. involved were copyrighted in the- countries where the pictures were shown. Francis Gilbert, as Paine's counsel, opposed*" the dUjH>^sM-sjid~~$bt' "fi"e"Ef- ; mission froih the court to so amend the complaint as to include this, in- formation. Action, by Paine is 1 an outgrowth of a five-year contract which gave ERPI aub>agency authority to li- cense the works of American pub- lishers used on the soundtracks of pictures exhibited .in. foreign coun- tries. The agreement with. ERPI expired In 1932 and what Paine is trying- to- collect hr the residue that her claims due on licenses that ERPI issued toward the end of the con- tract Hei resorted to the courts af- ter two years of dickering- on a settlement. JAS. GILLESPIE REJOINS LOfEZ AS PERSONAL REP James Fl;'Gillespie has reioined; Vincent Lopez as general and per- sonal representative for the orches- tra, leader .at the Ambassador..hot3el,' N. Y: -The -combination- was orig- inally formed when Lopez started at the. Hotel. Pennsylvania^ N. Y., ( in 1921, Gillespie remaining; ae man- ager and; exploiter for four: years; .He then became general manager for Paul. Whlteman and; ,renialned with him for nearly eight years. When Gillespie resigned, the White- man connection about two years ago he started handling John Fo- garty whom he will also continue to represent. Lopez's was the first band to play vaudeville with scenic effects, under Gllle/pie. His, too,, was the first band on the air and the initial band with a commercial hook-up on radio. Set Waring Hearing Philadelphia,. March 17. Hearing of the exceptions of de- fense in- the Waring injunction case against WDAS will occur some time this week in Common Pleas court here before Judges McDevjtt, Kuhn and Parry. Bandleader was granted court stay against station's use of his phonograph recordings. Also re- ceiving adverse rulings on similar cases were a restaurant and a ball- room. They are likewise contest- ing decision, 1 'Most Played' Radio Graphs Are Synthetic Hypos, Says Vet Songsmith—At Same Time He's Delighted to See Himself on Top- with the Number of Plugs MUSIC AND PIX By; GECEEIA AGEE Because, with enough, plugging, pressure it's possible to.. force, a. 'popular song; on Variety's Most Played" iist before It belongs there, (if at all; Irvine Berlin challenges the value ot that, list, hpth to the music publishing biz and the picture industry. The. Moat Played: list has become ttte songwriters' and picture pror- ducers K blhlB, says- Berlin; Publish.-- ers with, picture, company. tie-upa- are harried and hounded by pro- ducers- and- songwriters worrying : about that list,, into hurrying their .songs, along,, propelling them onto that list and in so doing, giving them a false position; Bterlin him- . self can't wiait to see his 'own songs on that lis^ he admits—in fact, he . raises hell when they're not there^ he says, and gets as big a kick as anybody when they make it. But when Berlin, the. music publisher, overtakes Berlin, the songwriter, then, does Berlin realize he's been •kidding himself; that a song- cata^ :pulted' onta • that list before Its 'rightful time is- bad for "the life of the song and thus bad. for the writer,: --thepublisher and- the^pro- ,ducer; Then does he. question how healthy is that STost Tlayed list? He ponders how much good it does ; the publishing biz and: the picture biz. He wonders-hdw much. good a ' song forced up on top;' does a. bad picture. He knows it can't do the publisher any good, A'song.'forced? up on top. browa up as quickly^ as it arri.ves. Once it makes the list, the publisher lays off it. He'e got a- new crop' to, work on. Berlin has'no solution for that Most Played rating- situation, lie says,, but he feels- eventually if s goihg to have an unhealthy reaction-.. Throughout the- year there are only. ' a handful of great, songs. Those are the real' hits, he says; In; Holiyw.Qod. Aflai Berlin is again in Hollywood on a job for 20th Century-Pox,, which commitment many months; ago he had promised his friend Joe Sohenck he Would do as soon as he waa free. It concerns a musical w|th. sen all- 'star cast; said: Berlirr before depart- ing for California, and he shall be busy at it untiL May. It was with characteristic enthusiasm that he left. Though writing for pictures will never afford him the same kind of kick as dong an 'As' Thousands Cheer,,' it has its own points. More money, a wider audience, a bigger field; more prestige. 'Top Hat' has •brought him letters from all over the world; not many, he says, but some, and he likes it. it's difficult to do a musical for the theatre today, he's found. No caste available. Stars will give you. two months out of the year; the rest they prefer to allot to pictures. Just as 'Jubilee* was starting to get its money back, Mary Boland is com- pelled to return to Hollywood. They want your left eye, and then they won't go on the road. New York only. Under such conditions, it's well nigh impossible to make money with, stage musicals. Money that compares to that to be made in pictures. He's had great breaks in pictures, Berlin says. A great break in writing for Astaire and Rogers, for the cast gives the picture its finality. Astaire gives his own quality .to-.a spng. in fact, gives the duality, says Berlin. It finds its own level after it leaveB Astairo, says Berlin. .And he's had a great break, his (Continued on page 55) Washington, Mai-ch 17. Factional committee fights, com- bined with intention to prolong hearings until the middle of April, have washed out hopes that legis- lation revising the horse-and-buggy copyright laws will be enacted by Congress at the. present session. , With Chairman. William. £, Sirp- vich determined to hold public gab.- ;fest&-for another month, the House Patents .Committee split into bick- ering groups last week with a hand- :ful of members vehemently assail- Ing conduct of the. hearings and an opposition group backing plans to i extend the discussions for some weeks to come. A show-down Is'expected at the 'end of the week, when Representa- tive Thomas O'Malley of Wisconsin, bitterest committee critic- of Amer- vican Society of Composers,, Authors .<& Publishers,, will present a motion : to shut off the- hearings; in accord- ! ance with original schedule an- to Side As Bearings Look Set for Extra Contrast Washington, March 17. Contrast between relative value placed on leaders of the two factions in. copyright, fight was shown by testimony '■ before the Sirovich Patents; Comniittee on, the Duffy bill; Gene Buck,. president of ASCAP, told the lawmakers that his annual compensation for protecting the rights, of creators is $35,0001 James. W, Baldwin, leading the bYoadcasters in the fight for - revision of licensing, sys- tem, placed his ; salary as man- aging, director of the National. Association of Broadcasters at only 111*000. nounced by Sirovich. O'Malley dis- closed his plans last, week after the committee head had. Issued a re- .vised) schedule allowing more than, a- dozen more days- for debate on the need for new. copyright meas- ures. The committee last Week contin- ued Its rambling hearings, marked by sharp- tiffs between committee- men and other hot-worded ex- changes between members and wit- nesses, without making any notice- able progress toward reconciling conflicting opinions. Most discus- sion, as during the previous fort- night, Was-related to the-$250 mini- mum, infringement penalty and the effect abolition of this feature would have on. ASCAP and the broadcasting industry, . Broadcasting industry opened its assault on the $250 minimum today (Tuesday) and was immediately placed on defensive by ASCAPs 'friends' on the Patents Committee, who repeatedly attempted to force the radio spokesmen to pass an opinion on the fairness of license fees. Principal, argument favoring the Duffy bill was made by Sydney M~ Kaye, N*ew York copyright attor- ney representing the National As- sociation of Broadcasters, who- tpld the lawmakers the 1909 copyright law was outmpded by development of films and radio, adding that pro- visions in the existing law 'intend- ed as a shield are being used as a sword.' Only other witness was James W. Baldwin, NAB managing director, who was heckled with nu- merous pointed questions' about in- dustry practices, and persistently refused to say whether the ASCAP take is too little or too. much. Counterattacking, the copyright pool, Kaye. who is on retainer for CBS also, told the committee that if previous proceedings were. as charged in the trial of ASCAP, 'then it was a mock trial staged by ASCAP for the purpose oC diverting attention from, the issues' in th*> copyright controversy. He pointed out that while <\erw Buck claimed the Society represented 44,000 mem- bers, the American roster includes only 1,082 authors ana composers, alive and. dead, and 108 publishers with 128 subsidiaries. Publishers and writer-members tooth collect from royalties paid for use, of music written by non-members and pub- lished by member houses, the. at-, torney emphaslzedv 'The' great bulk of music comes Out of the ASCAP repertory even today, when that 'repertory is temporarily depleted by withdrawal of the Warner, firms;; Kaye admitted; noting that the average broadcasting station puts on- 200 performances, of muslo daily. Tracy Denied- i. .Benylngy the? allegation, of piracy,. Kaye told the lawmakers- that 'a pirate is in no. substantial business and ia not- liable for any money judgments, The- honest man Jakes out four or five licenses) and yet. is continually terrified^ Ton,can }ook at a piece: of sheet music -and search the records' of the 'copyright office and not know, that ASCAP owns the pwforming rights. ASCAP does not give us a catalog, of the works we can. play -under our lir censes. We -play at our'peril, and over our - heads always hangs this sword- of Damocles.'- Citing illustrations of the way the $2£f0 clause has been used, to 'intimidate' music users, the NAB attorney told the committee that. If ASCAP loses its legal tiff with Warners ever the right to-contest- ed numbers, stations whfch, have been relying on. the- assurance that ASCAP has title would .be subject ' ;to destructive daatft^est - '.Ka$$-'al$o. pointed to. p'dSsible- injuries-' result- ing from. Incidental and accidental infringement,: 'discussing;.;bffefly some pending W^amer strirs; and de- claring- the- punitive features of the present law contain 'undemocratic power that..the broadcasting: indus- try, should not he compelled to< go on under.' . Committeemen, tittered when, Kaye , recited words of an old Ford jingle -I alleged to be inflpirationi for 'Music Goes Round,' and emphasized that if plagiarism suits over this num- ber had. been successful broadcast- ers, would have been, liable for dam- ages exceeding the national, debt. % In. reply to ASCAP assertions that the 'power trust* dictated the £>uffy Bill, NAB counsel remarked that 'power trust' also, has interest in music business as well, as in broad- casting through control of Associ- ated Music Publishers. Few copyright cases are found in. lawbooks, Kaye explained, because persons charged' with ^infringement, don't want to ,test their rights as long as the $2$0 damage prov slop, exists. Damage clause is used to force settlement on copyright owner's terms, he added. 'Under the present law the Judge fixes the damages between $250. and $?,Q0tf, Under the Duffy Bill he would' fix. them between $1 and $20,000. It's merely a difference of degree,' Kaye declaimed, answering-complaints from committeemen: that abolition of the minimum avfatd would wreck ASCAP. •Won't Hurt ASCAP' 'There are more remedies in this bill than a man has under any other law and more than the creator has in any other country/ he continued. 'In the light of that-it is my judg- ment that the Duffy Bill • v/ill not put ASCAP out of business. I am convinced It will not cost ASCAP a penny and is' quite likely td give them additional benefits.' The mini- mum provision puts judges in a /judicial straight jacket,' Kaye said, explaining that broadcasters can- not set along without ASCAP mu- sic, even if the $250 clause were abolished. While denouncing the method by which royalties are fixed, Baldwin endorsed the idea of copyright pool- ing, but said, under i»i'<r»eiH licens© system, broadcaster." are forced to (Continued on page 5C>