Variety (Apr 1939)

Wedneaa«7, April 19, 1939 MUSIC—DANCE BANDS VARIETY 4s ASCAP WINS FI RST ROUND Buddy Morris Quits as GenTManager Of Warners' Music Pliblishii^ Group Dorseys Private Puff Sheet Emei^es As an Adv.-Seeker; MPPA Talros It Attempt of John GIuskin,'a lawyer end personal manager for Tommy Dorsey, to solicit music publisher averting for the bandman's fan meg giveaway has encountered strong opposition from the Music Publish- ers Protective Association. In a cir- cular letter addressed to the trade last week, Walter G. Douglas, chair- man of the MPPA, warned that the taldng of space in Dorsey's throw- away monthly, 'Band Stand,' would be In violation of the association's code of ethics. .Douglas also wrote that at a meeting of the MPPA board last Tuesday (11) a commit- tee was appointed to 'formu- late and prepare an agreement for the elimination from the industry of all types of' subsidies.' ' "We think,' Douglas's letter stated, that it is hardly necessary to warn you that If you take advertising In Bandstand there will follow in all probability many publications of a sfanilar nature, and therefore for the good of the Industry and yourself In- dividually a potential evil of this ■Qrt should be.nipped In the bud.' .Gluskin, a lawyer by profession and brother of Lud Gluskin, conductor for CBS on the westcoast, has been scouting around the Industry for a music publishing house that Dorsey cbiild buy. Gluskin Is also personal manager for siich bandmen as Shep Fields, Jack Teagarden. Red Nichols, Gene Krupa, Glenn MUler, Ray Kin. ney and Buimy Berigan; also their lawyer. In a conversation with • Douglas, Gluskin stated that much money had been spent in building up the fan giveaway. Ked Sails in Sonsef Smt Dismissed; Shnberts Sned Shapiro in 1936 Suit which the Shuberts had brought against Shapiro, Bernstein & Co. In 1936 In connection with 'Red Sails in the Sunset' was dis- missed by Justice Isidor Wasservogel 111 the N.Y. supreme court Monday (17). A favorable decision would have permitted the Shuberts to bring an infringement action against Peter Maurice, British publisher of the tune. After Shapiro had acquired the American rights to 'Red Sails' from Maurice, the former noted that the first three bars were similar to the melody of "From Now On' from the score of The Street Singer,' by Rich- ard Myers, which operetta had been produced some 10 years previous by the Shuberts and had but a week's run. Shapiro subsequently worked out a deal with the Shuberts whereby the publishing house got a worldwide release of any claim against 'Red Sails' for the sum of ♦500, .'Red Sails' became a smash hit, doing over 650,000 sheet copies in this country and Canada alone. The Shuberta then through Its •ubsid. Century Library, Inc., brought suit against Shapiro, Bern- «tein & Co. asking that It be per- mitted to amend the contract It also asked the court to rule that the release was meant to apply to the United States and Canada only and Jhat the Shuberts were free to sue Maurice on all other uses through- out the world. Justice Wasservogel nUed that he interpreted the release as being in effect for the world. Benny Goodman Booked For First St L Theatre —-Benny—Goodman's orchestra will Play its first theatre date in St. touis the week of May 5, when the m (Fanchon & Marco) plays the aggregation In its occasional vaud- film policy. Goodman's only pre- vious appearance in St. Loula was a dancehall engagement some time ago. • Date at the Fox calls for a guaran- tee and percentage. Dorsey Explains Following Walter G. Douglas' talk with Lud Gluskin, Tommy Dorsey called together several professional men and appealed to what he termed their sense of 'co-operation.' Dorsey started off his speech by reeling oft the list of things that he does not do, Buch as holding raffles for plugs, free . special arrangi lents, de- manding publisher attendance at big openings, or insisting on cut- ins. Dorsey said that while he hoped the publishers -vould take ads, any opposition would not af- fect his friendship for the ex- plolteers. Those who attended the meet- ing were Jack Bregman, Jonie Taps, . Mack Goldman, Larry Spier, George Mario, Henry Spitzer, Irving Tanz and Rocco Vocco. [ COURT THE WHY &un Tabac Out; Spitahy Link Denied ' Sam Tabac has resigned as a mem- ber of the executive board of the New York musicians union as the result of a series of differences with the local's officials. Report that the pressure was brought against Tabac because he had attempted to get H. Leopold Spitalny's job as general contractor for NBC was ridiculed by John F. Royal, the network's pro- gram chief. Royal said that no one had ever approached him about the post ever since Spitalny was installed four years ago. COUNT BASIE FOLLOWS KRUPA AT SHERMAN Count Basic orchestra follows Gene Krupa at the Sherman hotel, Chicago, for six weeks with options opening May 20. Band Is the first colored outfit to go into the Sherman since Noble Sissle's band was .there a number of years ago. Basle will have net- work wires. Florida and WMhington De- cisions Now Make Possible Direct Test of Constitu- tional Issues—Majority Sees State Laws Impairing Property Righto in Music, biit Justice Black Sees Only Monopoly FEDERAL JURISDICTION Washington, April 18. Initial victory was chalked up Mbnday (17)°by American Society of Composers, Authors, and Publishers ,in fight against radio industry's at tempt to outlaw blanket licensing system. United States Supreme Court, without hinting' its feeling about vital constitntional. question, ordered further proceedings in copy- rightholders' assault on state legis- lation designed to force adoption of per-piece royalty basis. Decisions upholding Federal dis- tric court in Florida and reversing another in State of Washington were encouragement for ASCAP and cleared way for direct test of validity of the state acts through medium of injunction proceedings which 'prev- ent enforcement. Only Important bit of cheer for music users was series of unfriendly remarks about ASCAP by Justice Hugo L. Black, who dis- sented vigorously in the Florida case and declined to go along witlr the majority in the Washington tiff. Lineup was 5 to 2, with Justice Felix Frankfurter not participating in either decision. The litigation turned on a fundaT mental but. significant legal point— whether the Federal courts have jurisdiction in the attacks on the re- strictive statutes adopted in connec- tion with the National Association of Broadcasters' drive against the copy- right pool. In Florida row, the point was the refusal of the tliree-judge Federal court to dismiss the petition for an injunction, while the Wash- ington argument, with issues almost exactly reversed, revolved around failure of a similar tribunal to re- ceive evidence showing the con- troversy Involves at least $3,000, the amount necessary to establish right of action in Federal courts. Majority decisions were presented by Associate Justice Stanley Reed, former solicitor general placed on the bench by President Roosevelt. Observers were imable to find in his remarks any hint how the majority may feel toward ASCAP and the (Continued on page 55) ASCAP CHECKS NEW YORK Dick Powers Field Crew Takes Up Empire State Survey ASCAP field crew in charge of Dick Powers starts giving New York State a thorough goiiig over this week. Group wiU check up on spots that haven't taken out licenses and also work out readjustments with those licensees that have been com- plaining about their fees. Crew will make its headquarters in Syracuse.. ASCAP LAWYER 'GRATIFIED'BY DECISION Louis D. Frohlich, of general coun' sel for ASCAP, yesterday (Tuesday) expressed himself as gratified by the ground covered in the majority de' cision of the U.S. supreme court on the Florida and Washington State cases. Frohlich said that he was not in the least worried by the monopoly angle raised in the Florida opinion since Justice Reed declined to take this issue into account. As result of the decision, ASCAP, he said, will proceed in two direc- tions. First it will undertake to try out the question of a preliminary in- junction before a si>ecial circuit of three judges on the Washington State law. After the Florida attor' ney-general has filed its answer to ASCAP's plea for a permanent in- junction, ibe Society will then ask for a date of trial on this plea. In any event the Florida issue is ex- pected- to come back to the U.S. Supreme Court, with the losing side contesting the constitutionality of the state statute. ASCAP has been doing business In Florida since it obtained its pre- liminary injunction but it'd still shiit out of Washington State. The SO' clety hopes to get a hearing before the special statutory court on the Washington State injunction plea within a couple months. Huggay Spanler at Sherman Chicago, April 18. Muggsy Spanler orchestra, a noV' elty group, booked into- the Old Town Room of the Hotel Sherman, opening on April 28. Will also double occasionally into the Panther Room. Miller Threatens Action In Availability Distemper; Wants Inside Links Revealed Miller Music, Inc., one of the firms in the Metro-RobbiDs publishing group, has instructed its counsel, Julian T. Abeles, to bring suit against ASCAP, the latter's board of directors and the publishers' availability committee in coimectlon with the methods used by the.So- ciety in allocating royalty. The com- plaint will charge that the avail- ability setup is Infested with fraud and conspiracy and ask that the availability committee be ordered to explain how it arrives at the avail- ability value of a publisher's catalog. It will also call upon certain mem- bers- of-.the—committee jQ_disclo.se their investment relations with firms of which they are not officers and the part they have played in protecting the interests of such firms when attempts were made to re- duce the latter's availability ratings. The coilnplalnt will further charge that the firms represented by the 12 interlinking publishers on the ASCAP board of directors and availability conmilttee control over 85% of the avaUability points. If the undercover interests of some of these directors were included this would come close to 90%. Conomlttee's action this month of clipping the points of numerous small publishers without readjusting the ratings upward: of others has aroused considerable ' resentment among this element. Another peeve has to do with the committee's adoption of a rule which limits rating changes to 10% lor any one quarter. Those publishers who have for some time fought to get better breaks on their availability now hold that this rule'prevents them from getting an'''equitable adjustment "The firms clipped 10% this time included Ager, Yellen & Bomsteln, Breg- man, Vocco tc Conn, and Crawford Music Corp., while T. B. Harms was granted a 10% boost All firms with 50O or more points were also each boosted 10%. Without applying the added zero which the committee adopted at its last meeting, the availability por- tion of the royalties for the first quarter of 1939 was paid oA on the basis of 8,401 points. The distribu- tion for the quarter before last was based on 8,831 points. This reduc- tion automatically raised the value per point As a result of this differ, ence of 430 points publishers rated at 500 points were each able to col- lect $460 more for the quarter end- ing March 31, 1939. Commenting on the latest pro- cedure of the publishers availability committee in ASCAP of adding a zero to each member's availability points," Fred' Fisher said last weekr 'With all my protests all I've been able to get from the committee is zero. Now the committee has given me one without my ev^n saying any- thing. So that comlnnor going all the small publisher ctun expect to wind up with frotia the^avallabiUty committee Is a goose egg.^ Edwin H. (Buddy) Morris resigned yesterday (Tuesday) as vice-presi- dent and general manager of Warner Bros.' music combine, the Music PuIk- lishers Holding Corp., effective this Friday (21). Morris had InUmated a couple months ago that he was considering quitting but Warner ex- ecutives at the time discouiited it Morris suddenly decided yesterday that the best way to solve the situa^ tion was to make a quick break. He is leaving jUSt after the group had rung up one of the biggest quarters for sheet sales in Its history. During the initial quarter for this year the group had five best sellers dominat- ing the list week after week. Buddy Morris, son of Sam K. Mor- ris, WB v.p. in charge of for^eIgn sales, took charge, of the Warner publishing combine 10 years ago, rating aa one of the youngest exec- utives In the business. He has a couple of propositions, one of them a reported alliance with the Max Dreyfus publishing in- terests, or as an Independent pub- lisher, but he will spend the next few weeks on his Connecticut farm mullkig things oyer. Those close to him believe he will in some way wind up with Dreyfus. Morris is a director of ASdAF, president of the Music Publishers Protective Association and chairman of the ASCAP publishers' avail- ability committee. ' Coin Maciiines Started 'Beer Bairel ?oM In "Beer Barrel. Polka,' which gives indicationB of becoming a big sheet seller, Shapiro-Bernstein has a background story which runs almost parallel to the one about 'The One Rose That's Left in My Heart' In both instances the piano copy de- mand was Instigated by coin-operat- ed nbi^ograph machines. Without hardli'' any radio plugs, the sale on 'Beer Barrel Polka' has reached ain average of 6,000 copies a day. Shapiro-Bernstein first heard about the tune when songslide users in the midwest started writing to Harry Blair, who handles that phase of plugging for the firm, about furnish- ing them with a set of slides on 'Beer Barrel Polka.' At Blair's sug- gestion S-B undertook an 'inquiry 'and found that a 'Victor. version of the number, which had been import- ed from Europe, was receiving a big play on coin machines among Czecho- slovakians in the auto manufactur- ing belt, particularly Detroit S-B then traced the forelgii copy- right ownership abroad and obtained the rights of the number , to all Eng-' lish-speaking countries, but Great Britain. Lew Brown prepared a set of English lyrics, while Wladimlr A. Timm, of the Standard Phono- graph Co., which handles Victor's in- ternational list furnished a new title. The original title was 'Wasted Love.' Jaromir Vejvoda, a Czech, is the composer. . Unlike other polka melodic: that have reached the American market in recent years, "Beer Barrel' is in strictly polka tempo. The others have lieen treated as schottishe fox- trots so that they might attract the fancy of the modem ballroom shuf- fler. Bobbins Music Cc -p., is taking advantage-of-4he-click outlook of 'Beer Barrel' by reviving 'When They Played the Polka,' a number which it plugged extensively last year, but with slight success. Jack Fulton's new band opens April 25 at the Chase hotel. Si Louis, for a six-week run. Lynn Chalmers the femme warbler.