Variety (Aug 1939)

Wednesday. August 23, 1939 MUSIC-DANCE BANDS VARIETY 39 Morris Agcy. Holds Aloof From Band Bookers Ass'n in Line With Its 'Non-Entanglements Policy WiHIam Morris Agency is holding to its refusal to become a member of the band bookers association, ■which is now in process of organiza- tion. Morris office takes the .posir tion that it is acting in line with its policy of non-entanglements with managerial associations.. Also that since the three major organizations which have already joined the band bookers association are thoroughly established in that field, and Morris js practically a newcomer in the band business, it stood a chance of having its development stymied. Bernard L. Miller, lawyer, who has been picked as head man or czar of the trade association, is still wx>rk- .ing on' the organization papers. Committed as members of the asso- ciation are the Music Corp. of America, General Amusement Corp. and Consolidated Radio Artists, Inc. Rockwell's New Ta|r Albany, Aug. 22. Rbckwell-O'Keefe General Amus- ment Corp. has chahged its name to the General Amusement Corp. For- mal notification of the move was given the secretary of state Mon- day (22). Though the corporate change elim- inates all personalitiies from the title, Thomas J. Rockwell is still president of the organization, with Mike Nidorf and Thomas Martin as v.p.'s and partners. Radio Columnist's Poll Indicates Hot Bands Are Slipping on Air Des Moines,. Aug. 22. A poll of readers of the radio col- umns, currently being conducted by Mary Little in the Register and Tribune, indicates that symphony, educational programs and hour-long dramas are in demand. It looks like hot bands are on the way out. BERNIE MAY BE N. Y. FAIR'S 1ST H.O. Another Band B.O. Battle Impends, Tiiis Time Shaw vs. Miller ■If the dates on both bands hold true, Artie Shaw will be in a situa- tion comparable to his battle with Benny Goodman in Newark last Feb- ruary. At that time Shaw was the hottest band on the list and was challenging Goodman, the leader, ■who was playing an opposition house nearby. Booked into the Strand theatre, New York, week of Sept. 22, Shaw will have as opposition at the Para- mount, Glenn Miller, currently rated as the 'hottest' on the way up. Mil- ler is scheduled for the Par either the week of Sept. 13 or 20. If he opens the 13th he'll be opposing Shaw at least one stanza and maybe two, if each booking runs three weeks as expected. Another angle Is that Tommy Rockwell's General Amusement, the same agency, books both outfits. FROHUCH, PAINE TO ALA. ON ANTI-ASCAP BILL Louis Frohlich, of general counsel for the American Society of Compos- ers, Authors and Publishers, and John G. Paine, its general manager, left Monday l21) for Montgomery, Ala., for a hearing today (WedneS' day) before the State Senate's jU' diciary committee on an anti-ASCAP bill. The measure is similar to those introduced in Kansas and North Da kota, requiring representatives of two or more copyright owners to flle lists of their works with the secre tery of state. Alabama makes the 17th State In which legislation of this sort has been introduced during the . past three years. Profit Joins Goodman Benny Goodman adds pianist Clar ence Profit to his orchestra when the band goes into the New York World's Fair next month, probably Sept 7. Profit is currently leading .a colored trio at George's Tavern in Greenwich Village, New York, Pat Flowers replaces Profit with the trio Added pianist will not replace Fletcher Henderson, who recently gave up his own band to join Good man, but will work in the trio and quartet, etc. With Edgar Sampson now arranger-player with Ella FitZ' gerald's orchestra. Profit wrote 'Lul laby in Rhythm,' one of Goodman': standard tunes. THE HEAT'S OFF Jay Gomey Tarns Pub Sacramento, Aug. 22. Jay Gorney, songwriter, filed in- corporation papers for a music pub- lishing company. Jay Gorney Music Corp., with Gertrude Purcell, Lucy Lauren and himself listed as direc- tors. Capital stock is 5,000 share of no par value. FBIAidsMPPA In Prosecuting Music Pirates Ben Bernie will probably be the first band holdover at the N. Y. Fair, according to the socko biz he's been drawing into the midway under the expo's new jitterbug policy. The holdover decision isn't due until to- day (Wed.). Opening Sunday (20), and doubl- ing into the Hotel Astor roof at night, the afternoon sessions have been pulling unusually strong. Incidentally, with an NBC hookup from the Fair in the afternoon, and CBS and Mutual wires at the Astor all through the week, evenings, Ber- nie is the only name band on all three major webs. He resumes Oct. 8 for Half 'n' Half. MILLS PEPS UP STAFF; POLLACK, MYRO SWITCH Professional managerial staff of Mills Music. Inc., was considerably overhauled during the past weekend, with the moves affecting the New York, Chicago and Hollywood offices. Bernie Pollack, who has been N.Y. professional manager, becomes head of the Coast office, while Sam Myro leaves the latter post to take over the Chicago branch, and Billy Chandler moves into Pollack's former spot. Piracy investigation division of the Music Publishers Protective As- sociation attributes most of its recent success in nabbing and successfully prosecuting, songsheet bootleggers to the unlimited co-operation it has been receiving from the Federal Bureau of Investigation. This co- operation has been extended to the MPPA by FBI offices in various sec- lions of the country. Several months ago there was an exchange of letters between Walter G. Douglas, MPPA chairman, and J. Edgar Hooger. head G-man. In his letter, Douglas described the spread of songsheet bootlegging and ex- pressed a request that the FBI lend its assistance in stamping out the evil. Many of the recent arrests have involved the wholesale dis- tributors of the sheets. NAPA Letter to Broadcasters May Touch Off More Litigation With Victor; Speiser Challenged Records' Air Time Figures compiled by the Fed- eral Communications Commis- sion show that broadcasting sta- tions as a whole devote 11.6% of all their time to the broad- casting of phonograph records. The percentage was derived from reports turned into the commission by licensees for a typical week in March, 1938. . The data also disclosed that almost 25% of all the popular music broadcast came from pho- nograph records. The percent- age of transcription music for the same week was 21%. Skidmore Catalog Active; Campbell, Stein Placed Skidmore Music Co., a subsidiary of Shapiro, Bernstein & Co., has put its catalog into active operation with the engagement of professional man- agers for New York and Chicago. Nicky Campbell is filling the local assignment, while Milton Stein has the post in Chicago. Skidmore's current plug tune is My Prayer,' on which American rights were obtained from the World Wide Music Co., a Peter Maurice subsid, in London. Skid.more hasn't been active for three yea'rs. BVC-DDG Merge Formally . Albany. Aug. 22. Publishing Arm of Donaldson Douglas & Gumble, Inc., has formal- ly merged with its purchaser, Breg- man, Vocco & Conn., Inc., last week as the result of papers filed with the secretary of state. BVC took over the DD&G catalog, assets and liabilities last year. Gilbert & Gilbert handled the legal details for DD&G on the merger of corporations. U. S. RECORD COMPANY ELECTS OFHCERS, B'D Officers and board of directors of Eli Oberstein's United States Record Corp. were elected last week. Charles M. Hemenway, of Paine, Webber & Co., Boston stock brokers, was voted president; Oberstein, v.p.; Lowell A. Mayberry, treasurer, and Mortimer S. Gordon, secretay. Board of directors named include Hemenway, Raymond S. Pruitt, at- torney; Sydney Newman, Wesley Simpson, Obersteini' Mayberry and S. Quackenbush, president of the Cham- ber of Commerce of Scra.hton, Pa., where Oberstein's factory is located. Also listed, as those in back of the company, are: Allan H. Sturges, pres. of Pilgrim Trust of Boston; William H. Hutcheson, pres. of Carpenters' Union of American Federation of Labor; Dr. Noble, pres. of First Na- tional Bank of Scranton; Weston Scranton, pres. of Scranton iron; coal and steel mills, and Vonis Oppen- heim, pres. of the Scranton Dry Goods Co. Oberstiein has only a 50% interest in the New York end of the com- pany and a 30% equity in the Scran- ton end. His latter piece consists of none of the physical assets of the outfit excepting the masters, which he alone owns. RCA ANSWERS HARMS' SUIT ONDISCS RCA Victor has set up the prin- ciple of common custom as one of its defenses in the test suit brought by Harms, Inc., for the ultimate pur- pose of collecting a special royalty fee on phonograph records used in coin-operated machines. .Victor filed its answer with the N. Y. federal court Monday (21). Issue on which the action is based involves the pro- vision in the copyright law which gives the copyright owner the ex- clusive right to the arrangements of his work. Harms seeks to have the court af- firm its contention that a recorder may not deviate from a stock ar rangement of a work without the consent of the copyright owner. For the purposes of the test case. Harms recorded a piano and vocal version of its tune, 'Rendezvous Time in Paree.' Without even obtaining a license, Victor recorded an orches- tral arrangement of this number. Victor in its answer set up three defenses. They are: 1. Under the copyright law if a recording is made of a number others are automatically entitled to make a similar use. An orchestral arrangement is similar to a piano- vocal copy. 2. There was a fair use. 3. Even though Victor made an orchestral arrangement, it has been the custom for years for orchestras to make special arrangements and record them without obtaining the expressed permission of the copy- right owner. This constitutes ac- quiescence. Black and Kostelanetz, as Arbiters, Rule 'Says My Heart' a Plagiarism More litigation looms between the National Association of Performing Artists and RCA Victor as the re- sult of a circular letter which the NAPA sent out over the past week- end to broadcasters. Also a letter addressed by the NAPA to the re- cording company itself. David Mac- kay, of Victor counsel, scored the NAPA letters as 'fla.?-waving' and challenged Maurice Speiser. NAPA general counsel, to test by litigation the statements contained in his two letters. Mackay charged that Speiser's let- ter to broadcasters sought by its statements to mislead and confuse ttie'Station ^men. Mackay stated the license which Victor has offered to broadcasters clearly provides for the restriction of discs whose radio per-r forming rights have been retained by the artists. These restricted rec- ords, he said, constitute but a small fraction of Victor's repertoire. In the Victor license they are not to exceed a third of the entire catalog. If they do, the broadcaster is privi- leged to cancel his license. In his letter, Speiser declares that the NAPA has never authorized RCA Victor, or any other record manu- facturer, to' license records made by NAPA artista for broadcasting, or any other commercial use. Nor has it authorized any record manufac- turers to collect royalties or fees in behalf of NAPA members. NAPA Members' RIebts Speiser'^ letter to the broadcasters restates the NAPA's position on the subject of record broadcasting, namely (1) the performing artist has a right of common law property in his renditions and interpretations which cannot be invaded or violated without his consent; (2) the perform- ing artist has a legal right free from any unfair competition, and (3) the unauthorized use of phonograph rec- ords in radio broadcasting is a viola- tion of the artist's common law right of property, and also of his right to be free from unfair competition. The decision in the Paul Whiteman case, states the letter, held that the records he made under his 1934 con- tract with Victor were subject to the control of both Whiteman and RCA, but not by one without ihe other. The letter added that the Whiteman case, .'which has not been finally adjudicated,' had 'no effect whatever' on the rights of other NAPA mem- bers. 'Except as indicated with re- spect to Whiteman records,' Speiser wrote, 'the rights of this association and its members are still intact.' Mackay said that the broadcasters who took out Victor licenses had nothing to fear from Speiser's claims as long as they didn't play the rec- ords restricted by the company. He said that he has assured the stations if, after abiding by these restrictions they get into any difficulties with ar- tists or their representatives, Victor will assume all litigatory costs and liabilities. Alice Kavan Set Chicago, Aug. 22. Alice Kavan, solo semi-ballet dan- cer, .set through the Music Corp. of America for four weeks of hotel nitery dates in Ohio, with further time understood to follow in the east Goes Into the Mayflower, Akron, for two weeks starting Saturday (26), followed by a fortnight in the Hollenden, Cleveland, Serving as arbiters in an infringe- ment dispute over the tune 'Says My Heart,* Frank Black and Andre Kostelanetz, composers in their own right as well as conductors, yester- day (Tuesday) handed down a ver- dict which held for the late George Gershwin and against Burton Lane, melodist of 'Heart.'' Arbitration of a controversy such as this one is unusual for the music publishing industry. Harms, Inc., one of the Warner Bros, music group, origi- nally brought suit on the issue against Paramount Pictures Corp. and its subsid. Famous Music Corp., but it was later agreed to resort to arbitration. Another unusual feature about the case was Warners declaration that if the mat'.cr went to arbitra- tion it would waive any participa- tion in the damages obtained from Paramount. Such' damages were agreed to in a supplemental' agree- ment before Black and Kostelanetz I heard the case. Suggestion that it I be left to arbiters came from A. M. Wallenberg and Austin Keough, counsel, respectively, for. Harms and Paramount. They pointed out that court trial of the issues would be a highly expensive matter and that since the claimant writers, who in- clude Ira Gershwin and Buddy De- Sylva, would be the only partici- pants in the damage award, it would be best to leave the contro- versy to the judgment of two out- siders. The (jershwin estate contended that 'Spys My Heart,' which was ' part of the score of 'Cocoanut I Grove,' was an infringement of a tune, 'Tell Me More,' which Gersh- ' win wrote for a Broadway musical I in 1925. Paramount retorted that ; even if 'Heart' were a lift, Tell ' Me More' was anything but an origi- ! nal melody and in defense sub- 1 mitted a list of 29 compositions which it alleged might have been the source of Gershwin's melody. I Black and Kostelanetz declared |n ' their verdict that .'Says My Heart' I was a plagiarism, but not an inten- tional one. Canadians Nix Licensing Montreal, Aug. 22. Canadian Assn. of Broadcasters, meeting here last Thursday (17), discussed plans for' offsetting any proposed licensing charges on radio stations from American or Canadian ' recorders. Canadian ■'^tions have not been using any Decca records since 1938. No notice has yet been received by local broadcasters from Victor, but understanding is that use of 'Victor records or others would be discontinued If any llcens- Inj fee Is asked. French-language station.s in this province plan to use French record- ings and figure on .naking records with leading French artists in Paris. Stations using dance records on a for free basis, thereby publicizing platters, have agreed to ban all ether p'.ugging for those recorders intend- ing to impo.se a licensing fee. 'Transcription manufacturers will likely benefit from the proposed changes, with bulk of biz probably going to U. S. platter libraries. Smith Joins Col. Record Moses Smith, ex-music critic of the Boston Post, American and Tran- script, has been appointed director of the classical division of Columbia Recording Corp. He'll oversee tal- ent and material. Smith will headquarter in the company's New York offices.