Variety (Sep 1938)

Wednesday September 7, 1938 MUSIC - D ANS AP ATION VARIETY 39 CPRS Vs. Can. Expo Dispute to Court; Goodman, Rogers, Lombardo Figure ispute between ian Perfor ing Rights Soci and the Canadian National , on whether dance orchestras and mili- tary bands at the expo may play lections held by CPRS under copy- ithout first obtaining formal permission and paying dues, will be taken to court by CPRS (collection agency in Canada for ASCAP and the British Perfor ing Rights So- ciety). Regardless of this announced in- tention, Elwood Hughes, g.m. of the expo) has ordered the. musicians to go ahead and play whatever music tbey please. Affected in the prom- ised court - action are Benny Good- man, Buddy Rogers, Guy Lombardo and Lieut. , O. W. Geary, conductor ■of the Royal Artillery Band, ace army band attraction at the C. N. E. Tommy Dorsey is skedded to appear at the expo's dance pavilion Sept. 8-10 and, presumably, will also be pencilled into the complaint of CPRS. Baton wlelders were delivered let- ters by messenger from CPRS which read:.'You may not perform any per- formances of our music without our permission.' Both Goodman and Geary were handed the identical ad- monition as they were registering at their hotel desks. After confer? ring with C. N. E. officials, all band leaders decided to ignore the com- munication and are heeding Hughes' instructions to 'play what you like.'- Expo's g.m. declared, The Canadian National Exhibition does not' have to take but a license from the Ca- nadian Performing Right Society to use any music. We are exempt from •any such compulsion. Our exemp- tion was given by Federal Act of Parliament ithin the last few months.* Exemption referred to was an amendment, to the Copyright Act, passed oh June 24, 1938, which ex- empts 'the performance without mo- tive of gain , of any musical work at any agricultural or agricultural- industrial fair which receives a grant from, or is held under, Dominion, provincial or municipal authority by the directors thereof.' Position taken by CPRS hinges upon the Canadian courts' definition of 'without motive of gain." Inas- much as admission to the dance pa- vilion is $2 a couple, CPRS spokes- men claim they have grounds for ac- tion on infringement of copyrights. Philly Bands Shift Philadelphi , Sept. 6.. General shift is taking place in nitery bands here with start of the new season. Bill Honey orch is out of Benny the Bum's and into the Anchorage. Johnny Graff, formerly at the Anchorage, into Benny's. Graft was last at the Arcadia-International, where, he, is being replaced by Clem Williams. Herb Woods out of the Anchor- age and Joe Frasetto is out of the Aflelphia, after playing there for a full year. Harry Wharton's band inked into Harvey Lockman's new Village Barn, set for opening Sept. 14. Snow White's Whistle Figures in New Suit Vs. Disney Pic's Score Score of 'Snow White and the S>even Dwarfs' has another infringe- ment claim against it. Latest suit, Bled by .Olis Altschuler, band leader, In New York supreme court, charges that 'Whistle While You Work' has much in common with an unpub-, "shed composition of his, the •Rus- sian Soldier Song.' It is understood Wat Irving Berlin. Inc., publisher of we -Snow White' score, will contend "iat the Tjasic melody of 'Whistle' is aerived from 'London Bridge Is Fall- ing Down,' which is in the public domain. Another action filed against the same score involves 'Some Day My prince Will Come Along.' Thornton «uen, composer, and the Robbins music- Corp., are behind the latter "tigation. Small Orchs For Discers to Duck Boosted Scales Recording and electrical transcrip- tion companies, are lining, up de- fenses against the recent upping of musicians' wage scale for disc em- ployment Increase goes into effect Sept. 15 on ' national scale, hitting pressers of general and commercial platters. Angles of the manufactur- ers are to use small combinations in- stead of larger bands and fancy in- strumentation. Around New York, transcribers are already dickering with band booking offices . for available cock- tail units and similar small combos. Recorders are also looking into eight and nine-piece bands With an eye to tricking up instrumentation. Idea- is to so orchestrate- crews as to make them sound like full organizations, while actually playing with about one third less than usual. Scales were recently upped to $24 per man for two hours, with men permitted to work only 40 minutes out of each hour. Old scale' was $20 for three full hours work. Means an increase of ITCp in money for 66% less' work. Last week union also revised its ruling on social security payment to read: The making of any contract or agreement for the payment of such tax by a leader, contracting member, booker, or personal agent of a band or orchestra, composed of members of the Federation^ or any assumption of liability therefor, will be considered a designedly unfriend- ly act toward the Federation, and will leave the Federation no alterna- tive except to cancel the booker's or agent's license.' Licenscrcanccllation phrase was injected into revised reg- ulation, first issued July 5. ASCAP in Mi Contracts German and Austrian Societies- Latter Taki , Not to Important Composers Now in Exile Copyright Renewals Take New Angle as Pubs Demand ASCAP Checkup Before Giving Credits 2 DET. DANCE SPOTS SHUT FOR WINTER Sam Pokrass and alter Bullock Hue, 'Three Musketeers' at 20th- idney Clare and Jule impy Dimp' for 'Hold at 20th-Fox. Detroit. Two of Detroit's outdoor dance spots, Westwood and Jefferson Beach, shuttered for the winter yesterday (Monday) following fair-lo-middlin' season. Other top emporium, East- wood Gardens, plans to remain open through September. Bunny Bergan, current, will be succeeded by Artie Shaw on return (late. Eastwood by far had. the better name attractions through summer, and as result clicked off the best grosses, chief among them being chalked up by Ben Bernie and Eddy Duchin. Westwood enjoyed spas- modic activity, due partly to its re- mote location,. but. biz boomed with Phil Spilnlhy's band and Horace Heidt. Jefferson Beach also had an in-and-out season. All three spots consider .they were lucky, however, in view of general biz conditions hereabouts for past eight months. The. American Society of Com- posers, Authors and Publishers is. in the middle of a peculiar situation brought about by the Hitlerizing of Austria, and its effect on a score of topflight Viennese composers. any of them are now emigres in France, England and America; most of them refugees, voluntary or involuntary, as their race or reli ion may be. What has happened is that the Austrian society :pf composers and authors continues' to collect large sums from ASCAP, the most valii-. able of their copyrights being au- thored by non-'Aryan' tiinesmiths. ASCAP has a contract, with both the German and the Austrian perform- ing rights societies, and while the. 1938 political 'anschluss' has sup- posedly made the Austrian republic non-existen;, us a nation, and sup- posedly part of a 'Greater Germany,' the. Viennese songwriters society thinks otherwise, so long as it can collect funds from ASCAP, the Brit- ish Performing Rights Society and the French Society. Catalogs Important ASCAP is in a spot because, of all the foreign catalogs it offers to radio broadcasters and other music licensees, the very fertile catalogs of the Viennese composers is among the most important, if not the most valuable. If ASCAP refuses to remit to the Austrian society, there is the danger of alleged breach of contract, a pact, that doesn't expire for an-, other two or three years. On the other hand, the refugee Viennese tunesmiths aver that' since they're no longer permitted to share in the royalty dividends, and par- ticularly since Austria is now. part of Germany, politically, they—the Austrian songwriters—refuse to rec-: oghize their former contractual com- mitments to the Austrian society. Hence, say these refugee songsmilhs, they'll join ASCAP, or the perform* ing rights societies of other friendly nations, and be in position to collect for their creative music. ASCAP is in sympathy with the thought, but recognizes the fact that there is an existing contract. Mean- time, as a step toward clarification, possibly, many a non-Nazi Viennese songwriter has written the Austrian society to the effect that it must can-' eel the writer's contracts because (1) of political diserifranchisement, and (2) non-payment of royalties. Paper 'Credit' The Austrian society, now o Nazi subsidy, however, has written back that the contracts must be deemed in force and that while no cash can be paid the refugee composers, they will get a paper 'credit.' Such farcical interpretation of the issues is what prompted ASCAP to realize (hat it's a ridiculous situation: Furthermore say the Vi se composers now in the U. S., London, Zurich and elsewhere, if they should combine their own copy Kemp's One-Nighters Closing an engagement at the Astor Roof, : N. Y.; which extended over most of the summer, Hal Kemp wound up there Labor Da/ night (5) and today (Wed.) leaves for a tour of one-nighters. The swing band is going into Rich- mond, Va., first on a trip through the south, returning to New York later in the. fall. Nat Bra'ndwynne suc- ceeded at the Astor Roof. WB Files Suit Vs. Par, Famous On Heart' Tune arner ine last week took-its controversy with Para- mount Pictures and Famous usic Corp. over the tune, ' eart,' to N. Y, Federal court. iled charges claim that 'Heart! is an infringement on'Tell Me More'.and asks the Para- mount and its music subsid give an accounting of the profits on the song and the filmusical, 'Cocoanut Grove.' in which the tune was used. . WB claims that 'Heart' sold over 100,000 sheet copies: and 7,500 orchestrations, while the picture had over 20,000 exhibitions. 'Tell My Heart' was written by the late George Gershwin, Ira Gersh- win and Buddy DeSylva, and pub- lished in 1925 by Harms, Inc., now part of the WB group. Burton Lane composed the melody of 'Says My Heart,' which WB contends is a. close takeoff of the Gershwin work. MPPA MEETING ON DISC COIN Board of directors of the usic Publishers Protective Association is slated to meet tomorrow (Thursday) in New York to discuss the proposed campaign to collect a special royalty on phonograph records used in coin- operated machines. Also the ques- tion of establishing a flat -tee' of 50c for transcription rights. At present it's 25c for pop tunes and 50c for restricted numbers. Matter of retai ing A. M. Wallen- berg and Francis Gilbert as special counsel in the coin-machine move- ment will likewise be laid before the board. WB SETS CATALOG DEAL FOR ITALY Controversy oh the . question of copyright renewals took a new tack, last week, when several major pub- lishers notified the American .Society of Composers, Authors & Publishers, that -they expected that organization to check with them before giving performance credits for any old works in their catalogs involving re- newal rights. They want'ASCAP to make sure that if any of the re- newals-were 'sniped' from them it was done lawfully and that the actual renewal registration isn't un- der dispute. The new approach to the issue was inspired by Irving Berlin, Inc.. In a registered letter addressed to most of the pop publishers in the trade the Berlin firm pointed out that un- der its printed publishing agree- ments it was entitled to the renewal rights to all compositions published by it. and that it intended to take all necessary steps to enforce such rights. Letter also stated that the warning had been prompted by the fact that 'one or more writers, some of•' whom collaborated wi -Irving Berlin and some with others, have attempted to assign or have offered to assign to other publishers the re- newal rights' of compositions -pub- lished by this firm. Various recipients of the Bcrli tetter discovered that their old con- tracts were worded very much along' the same, lines and decided that un- - der these terms the writers had no alternative but grant the renewal rights to . the original publisher. These old contracts not only .sell, as- sign and transfer the composition to the publisher, but grant him all re- newal rights deriving from the orig- inal copyright. It is contended by this group of publishers' that accord- ing to the Tobani; vs. Carl Fischer, Inc., decision, a writer bound by one of these contracts must either assign such number to the original pub- lisher, or stand the risk of having it thrown in the public domain. Fisher Asks Accounting Fred Fisher, songwriter and pub- lisher, last week countered the. re- straining action filed against him by. Shapiro, Bernstein & Co. with a de- mand that the. latter firm give him an accounting on all the income from 'Come, Josephine, in My Flying Ma- chine.' Demand was in letter form and came. from Fisher's counsel, O'Brien, Discoll & Raftery. Shapiro-Bernstein's suit, brought in the Federal court, N. Y., seeks an adjudication of the renewal rights to 'Come Josephine.' Al Brytn, one of the - authors, had assigned his re- newal rights to the Famous Musi Corp., while Fisher took out a copy- right renewal in behalf of his own publishing concern. S-B contends that Fisher and Bryan have no re- newal rights whatever to 'Josephine,' since they wrote it under an em- ployment agreement and that: the FMG's registration is in viblation of that provision of the copyright law which makes a work, of that type the absolute property of the original publisher. Letter from Fisher's counsel asks that Shapiro-Bernstein furnish the writer with a detailed statement o revenue received on 'Josephine,' from sheet sales, synchronization rights, phonograph recordings and all other sources since the publica- tion of the tune. Shapiro-Bcrnslei slates that it is not obligated to sup- ply this information, since Fisher Warner Bios, publishing group has ,!„;,, ; , ',,„ „„,u.i,.,..,„.J„tt signatured a three-year contract wilh i wgndluied a complete, bill of sa c in rights it may create embarrassment i „ v> ... .. Yv.nnoeimn .■.n't, • i.- . for as<-:ap 'n„,i iiw nihor nrrfnrm. * ranchi & Co., Rome publishing ejection w,lh Joseph. over 15 for ASCAP and the other perform- ing lights societies. Because, then, it could becloud the issue of copy- right ownership; it could create a doubt as to whether ASCAP, for example, is in legal position to' li- cense the Austrian works; consider- ing the fact that the Austrian com- posers now deny it. Important Composers There are a flock of such irnpor- tant composers whose wealth of ma house, giving the latter the agency rights to the Harms, itmark and Remick catalogs for Italy and its colonics. E. B. (Buddy) Morris,-gen. mgr. of the WB music, combine, who returned from Europe last week, also reported that his organization has taken over the representation of its own catalogs in France from G. Fcld- man on a 50-50 basis. While, abroad, Morris ro-sigried with Chappeli & Co. on the Harms tcrial is almost self-evident from a C ai a i 0 g for Great Britain, and gave reprise of some of their names.. They . B; FeWman similar rights to the Wit- (Continued on page 53) mark and Remick catalogs. years ago. The 'Josephine' suit is regarded in the music industry as likely to de^ velop into ah important test ease o the issue of copyright renewals. AUGER WITH B.V.&C. Fred Auger, formerly New Eng- land rep for Leo Foist, Inc., has signed up wjth Brogman. Vocco te. Conn, new music combine. Will, headquarter in Boston and cover all N. E. and upper New York State. Auger has been in the pop music field for about 25 years.