Variety (Dec 1940)

40 MUSIC WednesdiBij, December 25, 1940 INDEX MISSING Mechahical and Perfbniitihte Rights Not A^ai to James Roosevelt in One Package , Negptiatipns between; the james RckisieveltTMiils Manufacturing coni' blnatlon Jind Harry Fbjc, agient and trustee^ for a liiusic! licensing con- tjfact covering film jukeboxes:, haye. struck I :• hopeless snagv Roosevelt "and Mills want a license form which will thclude. performing rights, and: that U spmethihg Avhich Fox sayf he "Tie k not. authorized -10 BiaiU.; ; ; . Fox has pointed but to the Roose- . yelt-Mills reps that all his clients will permit him to license .the iTiechahipal rights involved in - the. niakinf of the /flimv Th« R-M r^pS are anxious to obtiih. an. agreietne.iit which will exempt the; spots in which; the jukeboxes .are placed: from- any. further claims froin copyright own- ers. Fox's position is that the only license he can issue is one which makibs. the. contract- subject to ,any. other Tights /.which- the... copyright law, permits; Music puhlisjiexs, .whom. Fox rfepresenfs, . are; opposed! to link- ing mechanicai- - and ' pferforming rights in the same license. They also are not certain as to the future. de- yelppnient of - the film jukebqx; fijgur- ing that it might be-used; oh .a grand scale in i)lace.s 'where the nickelrin- thie-sljiit .feature will hot prevail and thereby making it a spurce of straight ' entertainment for the establishment. Roosevelt's associates afs saTSnp . hav^ insisted upon the dPuble. rights grant after it had been offered them by Broadcast Music, Inc. BMI's con- tracts with its Writers arid-publisher affiliates permit isuch practices. As a result of the inipasse with the pubs whom Fox agents, the Roosevelt out- fit will have to depend oh BMI en- tirely for its popular music; Qver- whelining majority of Fox's prinpi- .pals are; affiliated with ASCAP. .' . Will Be General Mi»naK«r>of Siiyer, . Horowitz Flrmi^-. . . Abiier:: Silver, pwner of the: Lin- coin Miisid Co;, aiid Willie Horowitz, hii co-partner in: the Mayfair :Music Corp.,. have w<)rked out an arrahgie- ment wh.er?by '; Henry Spitzer will fnnrti6n-i»s-geneFaWEHisinessJ^ of both flrms". Silver will continue: to - head; Lincpln and Horowitz to head" .Mayfair, with each ; concern maintaininjg its own -offices. When the radio situation involving ASGAl?; is. settled each company ;^yill have itsi..'pwh professional stafi, iacting undet $pitzer's guidjance. . • . " Mayfair; is the old Joe Davis c^tt^r log,, while Lincoln was bought from Artie Shaw, • More legal Postscripts Involve Reorganization Case of U S. Record Co, The U. S. Record Corp;, which filed a plea, for reorganizatiori in the N.V. federal court ijn Sept. 5, re- ceived another lease of life from referee Irwin Kurtz, when it w granted a stay to . Jan. 17, 1941, to produce a plan of reorganizaiipn. For the past coujple of months stays have been granted to allow the com- pany to secure, an adequate plan, ad ditional capital, or be. liquidated. However U. S. Rteord Corp.,. on Dec. 26, will have tp battle its chief creditor, the Pilgrim Trust Co., to which it owes $17,807, before referee ktirtz. Judge Vincent L. Leibell set a hearing before;the referee, Thurs, (19)j ordering U. S. Record Corp. to show cause on that day why the de livery. of 40,000 records returned by distributors or dealers to U. S. Rec- ord Corp., and subject tp its lien should not be turned over to it: • Also, why • all .-mothers, ; masters, stampers,, etc.r in. the possessiori of thie Scratitpn Record Manufacturing Co., belonging; to U.S. Record, should rioit be turned over, and why; a sale ojf these, aissets should not.bei maJde to be ; applied against • the mdney owed the Pilgrim, Trust Co. .Ori: June 7.. 1940, and- again on ^ July lis, ;i940, U.:S. Record bbrrowed' $15,0100. and 15,000,'- respectt^ the Trust. Cb., secu,red by a lien on. these assets, • The ^Pilgrim Trust (Co. claims '$2,192-had- been paid- back,- ■ but that the Scrahtpn outfit is press- ing ftpm the\stampers in its jposesr . Sioji, rightfully bieionging " to Piir grlmi. It charges breach of faith, and asks ;for; the articles, oh /which it .has •a lien.'.•:';■ '■' HENRY SPITZER DOUBLES Mars ASCAP Volume bcallhf:With \ CopyHght .l<aw ; • ' Americari Society . of. Composer?, Authors, and ' Publishers lasts^Nveek distributed copies, of the Third; Copiyr right Law Symposium, with, a |or.Cr word by Dr. John H. Wigmpre, dean of Northwestern ■ University School ot hav/, who acted a'S judge -df the seven .wintiing ,essays contained in the book.- The cotitest, "condUcted as. the Third-Nathao; Burkan Memorial Competition, . wm participated in. by. 81 .law; schbols, . ; ■ . Book's value is ' lessened by ab- sence of an index. Judge Rules Writers Were on Paiyroll Wl»en THey Tuimied Out.^uiii m 1910 SHOO STREET HAWKERS Minneapolis Was Gentre of Boipitief ; ■.': ■VSohg, Sheeis ;-' 'SO^fARiSi) W SONS A. suit by' Charles Schrnall, Cbrit- poser, against. Words & Music;; Inc., publishers; ; Theodore Coof«r, mat);^ ager of;,W. fif M.,; Inc.; . Miller WTusic, Inc., •• publishersr- v Jaclc" La>wrence, Jimmjr Mundy and Eddie , White, songwriters; under; contract to .W. & M., was revealed Friday (20) in N. Y. supreme courj, when Justice Ferdi- nand' pecofa . ordered the examina- tion.befpre trial oh:'Jan..7 of.fred Waring, secretary of W;, & M.,; and Theodore Cooper. Action seeks $25,000 damages for the alleged plagiarism pf the title Of plaintiff's spng,'3p Far So GopdV : » Schmall wrote the , song pripr to Feb. 5, 1940, he sets .fotth; .and .on that date, at thie request of W- & M. and Cooper sUhmitted it.^ The thfee defendant sorigwriters were present at the .time, he states. It is claimed that Lawrencie, Mundy and White then lifted the title, and wrpte a song using the saine title which was published by Miller Music on Feb. 26, 1940. Com- plaint asserts that both ;Miller Music and W. & M. are .affliliated with one another, in that they are both part'of a parent orgsinization. [Miller is ac . : Mexico :City. pec, 24;;. Action of sho;wfoik and 'eharros' (Mexican; cbwboys); in staging ; a rpdeo-sbhg-dahce;. fiesta,. sdved Prof, Braulib M.;' Pineda,: veteran.: com>. poser .of such internalipnally fampUs' waltzes as 'Aljexandrai'; frpni';. the ^ poor house; . yenerable: cbmposer was found by; ineinbers ofi it. legit- rbad'show, ..near (ieith from starya- tiph in.'a hovel at'Mazatlan, a Pacific ■ cbagt port and. tourist resbH.; The .thespiahs;v aic(ed Pineda. with;.'fobd and drink, tiKen .-erilisted .aid of tlie. /eharros'' in putting oh the benefit show. , .- "Y Pineda is aissured at least a i^leirry : Christmas and perhaps a good New Year as well, :f6r.. those spPnsoring ;the benefit.are seekihg more royal- ties; for.him froni his compositions.. The composer sold most of his- rights to his. waltzes. : Sulcdiam Corners Clever Bbozekss Nitery Field Cleveland, Dec. 24. .: . Franchise on lifcker-less niteries, still ia distinct novelty here, has beeii yirtually cbrnered by Bob Sulgham, whb jool? over the .Cbllege Inn last week tb Install his second Bob .& Ann's Soda Bar nitery. What helped put oyer; his .dicker for the. spot, formeriy operated by - • ~Mihhe:apblis, .Dec. 24i,; Street hawking'. of sphg hits ^hasj lieen halted here ;andor a federal cbntt writ issued in connection with a $3i750; damage suit brought, by Leo Tel v.U Ii vi^^f^..pe >^K n ;nnd o ther-easU ern sbng publishers agiiinst ;Jacob Garber, local rejsiderit, .ahid the ■Com- mercial : Press, Inc;; printers ;here.: CppyriiSht, infringement isVialleged; '. Armed . with the -Writ; of seizure, U.;. S,: niai'shals seized ..-plates. and; -SDng ;sheets and shooed the ha>wkers off the • streets; . MinrteappUs.. has been a distributihg center ;for large supplies of these song sheets. PETRILLO'S AnEMPT 'y J,/:' Y.:\ ' ';;rWashin6tpn.rDec. :24:-..«. Recent- tempOfary .refusal / of the American Federation of Musicians fe; let Mutual pick up an Army band at Pott Dix,' N. J., drew; screaiths ih; Congress last week frpm Rep. Clare g; Hoffrhan,. Michigan Republicaii, yirho bias been deripuhcing lahoir Un-. ions ; interfering with the national defense program^' ; . It's a good thing :.thc ;Arniy..has given up bugle callis to direct man- euvers, Hoffman opined, .or battles would depend oh the whims of the walking delegates. The; indignant legislator, declared Janies C. Petrillp; the .A. F. M.. head, wants, tp^^ exercise a veto power, over the military com- inanders and the civilian authorities in the War Department.. . . .. Henry Leitson, was the. fact that tually a Metro subsid; Fred Warmg, | nearby Fenn College has been cahi- the maestro, bankrolls W, & M Neither is affiliated.] Defense in- terpbsed is that the title. is in the public domain,- having been used many times before. . Bunchuk OK Now Yas&ha Bunchuk left the Mt.; Kisco hospital in his hometown of Mt. kiscb, N. Y., Sunday (22) after 12 days' incarceration with painful in? j uries suffered In an auto crashi . "The maestro was injured when his car smacked up. in nearby . Chap- paqua. paignihig against all booze jpints in the • neighfiorhpod.; College unoffi- cially put its okay on ; Sulgham's, malted-milk yenture, which has, in- stalled Billy Manvp's jivers for stu- dent jitterbugs. .: Leitson is moving his Cbllege Ihh intact to a site, five blocks away to try a policy. Pf larger floor shows. Frank Curtis; formerly of local Statler hotel some years agp; will manage it when it blooms in mid- January. J>ave Dreyer to score 'Along the Rip Grande' at RKO.. INTO MAINE HRSt™ElN4TRS; Boston, Dec. 24i. , R. W. RoiTie, :New Eng% ihariager for American , Sbciety of .Cpmppseirs, Authors and Publishers, spent the past week licensing rradip: ; stations find giein.eral establiShmeht^ thrpughput Statie of Maine. First time in four years. ASCAP has doiie business .in Maiiie because of a State; statute, recently disinlssedi . ;, Now Bbston oflUce is; headquarters : iktr..entice;, six .New EngluuL'sfates^ l . Clertn Miller: is: In the' middle bf. a deal at the moment whith niay see him give Up $5,000 to buy the. cohtir&cts ot either Porpthy Claire, vocalist with Bobby Byrne, or. Dee Keatiiig, hew; singer, with Al Donahue.; Miller has been without a femme vbcalist for'more than a .week.;- Marion Huttpn, Who sang :with his band before it became prominent, left last Mohda^ a week (16), She retitedi: having recently been'married. ,: .■ . Thing which may^stymie MUfer's attempt to get Miss, Claire, frorn . Byrne is the fact that she's naihed in Byrhe's cbntract fo"r:'his fpr'thcbming radib cOmrtiercial; for Raleigh cigarets, . - .. ' : ; ■ : Jack-Mills declared Mppday (23): that the fl;'m: of Pro, Arte Music Pub-, licatipns which recently Was ordered by the Ni Y> supreme; court to change its name is nbt a subsidiary of; Mills; Musici lnV T^^ firm, which special- izes .in Latin-Am.eriCah hiusic, is ai.-separate entity,: stated wjills, in .Whibh he ifind his brother, Ifvingjimeirely own ari interest with^seyeral other.;per- ispns. Pro-Art Publications had: brbuglit InjunctiPn proceedings in cohnec- tibn : with the similarity of name and a cbn^^^^ decree was readily entered intp. by Pro Arte Music Publicatiohs.^^ Leonard Whitcup, an ASCAP member;;is considering startlh suit i^gainst Southern Music Co. :fpr dropping the lyric he had written fbr 'Frene^i/ the fltm's curi-ent No 1 ^long, and. using the ;wbrdS of-twb othef writers, Ray .Gharles and S; K, Russell. . Whitcup chairges that ;the dhahiile was taade after Ralph Peer,'bwner of Southern Music, had made a deal for part of his (Catalog with Broadcast Music, Ihc. • i Charles and ;Russell are;npt ASCAP .merhbers. ■ ...: Broadcast Music has equipped its subscribing stations :With the first Index volurne of its catalog. Outside ;0f ;the E/. B, Maries numbers, the 'volume lists 135,000 compositions. j^The Marks, suppleihent runs 5,200 numljerS.: Pre- ceding the Marks listing is, a. page pointing but the errors discovered in it jitfir:;the^&<>jnpilsition;had-b£€n,printed, ■ . Caii^t Force Public, Says ; Veteraa Leo Edwards New York. Editor, Vabiety;: ■' Lu.' AS . a pioneer in Tin Pan "Alley .(of 28th Street) and having served shbw business with, song material, from' light opera, ihusical comedy, bper- atic, symphbrtic to Fanny Brice's comedy songs fpr; many years, plu^ rny association With Brbther GUs throughput most of his career of son.g writing; and star making, 3 would like to asic. the radio officials and their associates >yhether they expect to create new talent with old songs. Will a hew Fanny Brice or a poten- tial Al Jolson show to advantage singing 'Turkey in the Straw' or 'Old Black Joe?' In bringing but new talent.we have always had to either create new. and novel song material purselyes or ob- tain it -from the best sprig writing- brains nibney cbuld; . bUy. Bill Shakespeare, saidi "The actor is the' mouthpiece of . clever author,' therefore you cannot take.;ia ;ppten- tial new 'gong stylist' arid; have he or she singing the 'Mocking .Bird' br fAnhie L^iurieV because no matter. ho\y :ybu triay try to disguise' and re-; arrange these tunes; with \sUper streaniline . ofchestratioris. it - Would .still be -Anhie L^urie;'; . ; :': ;• ; ■ ; / Tile : public bought: radib; sets . so they, could, tuhe . in bh the :music Victor; Herbert, SpUsa, Kerri,; Ftiml, Ybiimaris, Rodgers and Hart,.:Gepi'g;e M. Cohan, Irving iBerliri,; dus Ed- ;\vards, and the mariy;-other aong- smiths whb happen :to.be'members of ASCAP;- arid the. pubilic will 'turie in on the programs, 'they Want to heair' and not the prpgfanis they are. 'told toihear,' .:.;.:■.■■■.■;■■.-•--■-■■■■..:.;'■;;■ : Years igo .certain: music; publish- eifs spent as :-high as $50,000; to try and' force ,3 hit sbng ph the public, but the public ..wouldn't accept. It, and so it: Was with, the late (Election. Wall Str'eet ; and the newspapers tried to put;.o;ne man iri the White House but the: public waiited anbther man and they, got him.;^~^ ' .Leo Edwards. ;;'-3hapjro,; Bernstein &; Co. has been. ■ adjudged - the : perrnarierit 'Copyright owner ; bf 'Come ;josepifiihe "in ; My Fyirig; Machine' and as such entitled to the riglit: of ;ren'ev/al bn the song. Judge droyer. Moscowitz ih the N.Y;- federal cburt last ■ week ruled that . Fred Fisher and Al. Bryan had no rights whateyei" in the ■ nuniber since ■ these :Writers were in the hire of the . posed; in; .1910;...; Shapiro-Bernstein ■ had sued for an injunctiori against the pair and had aisp nained F.anious Music; C.bi'p; which^ had signatured a Cbntract with Byraii for bis shiaire of the ^ene^ya^; rights. . . ■The' main ;issue in the case.^wheri it was tried early in iNoyember was the question, of veracity arid fact. Bryan, . through his counsel, John Schulman,' contended that he was not working on a salary for Maurice ; Shapirp/; fpurider of the. firrii, at the time he wrtte the lyrics: for...'Jose- : phine.* ,; He claimed that, he turned •it put ' in . the spring bf 1910 whereas.;. his.;empioyrt^ent: with ' Shapiro be- . came effective, iri the falL.bf the same' \ -year::-'.;;''.... '^-^-.V- . Judge : MoscpWitz :ih his decision; upheld Shapiro-Bernstein's tveision: of, the composition .date as to.both.' Bryan, arid Fisher and affirmed, the puliiisheir's; prpperty; rights; tp the , sbng.'. In his;flhdirig.tlie,judgi?.;niade ' reference . tb . a ruling prt the same case by Judge ; Cpjce; which : inter- preted Section "23 of ;'ihe. copyright: law as meaning that wh^ri a w creates a vrbrk. while 'in the hire, of a publisher he. .parts ■ With hi^^^ property in the work and has. rip in- terest left to prbtect.'; Also that the ; 'right;of. renewal in a'Woirk :made for hire is not given to the- authoi-. nor tb the employer as author but to the: ^ proprietor.' In this instance, addedv the court, 'the proprietor was the plaintiff (Shapiro-Bernstein) ; whb ;: properly olitairied the renewal copy- right on Oct; 19i,. 1937:' Leo J. Ros- sett handled the action for-Shapiro- Bernstein, :This litigation , goes be-^ yon.d the noted Tob,ani Case, since it involves an... emiplbyment : contract that carried a' royalty provision; ^s well as a guaranteed .weekly niirii-' mum drawing, nbt subject to returii. Fisher, Bryan, and Famous Music ; declared Monday . (23) that they , are appealing from the decision; In the case" of Carl Fischei-y. Inc^ vs. TPbani the court ruled on the .employiTient angle chiefly. Tobanl, an arrangement composer, had nb compensatory royalty deal; his was strictly a straight employririent con-' tr^ct on a weekly salary. > 'OH, JOHNNY' ACTION NEARS A DECISION Jlmmle Lunceford has been paid in full and the bandmembers ha:ve been paid; bff ori. a date they won't play fot twb weeks. UriUsual;buyer .had the creW for a spot at. SUriirriit, N. Syracuse, Dec. 54. • Motions by rival attorneys will be heardby Supreme Court Justice Riley H. Heath at Ithaca E|riday (20) in the equity action, brought by Wi A^ Dillon of that city against Abe Olman, of the Rbbbins publishing, Co.;Testimony in the action in wJiich:. Dillon ciairiis an-interest in the song, . 'Ohi: Johnny,' resurrected ai.,year ago and again made, into a hit under the inipetus\provided; by;'Bohnie Baker, was -completed' Friday (20) but Jus- tice Heath .reserved deGiSipn. potil itter he hears argument this week.... .. Diilpri :Seeks ari accounting Qf-;half the profits on the song hit,'coritend- irig that *6h,. Johnny,':cbpyrighted.,by blirian in 19l7. is strangely similar In both Wording arid- rhythm to his, song,; 'Oh: Honey,' which he; wrote.. back Iri 1908 when he :was i.ri. vaude- . vilie.,writing his bwn tuhes.. . : ; ■ ■' Dillbn .testified ■ that he worked • over tlie .sohg -with .Olman : back .in 1913 and that he had not heard pf the tune , again until ; IMt' wheni he . heardV.a Cbrnell ;old .grad siriging it in an Ithaca hotel. - ' Olriian testified that he had copy- righted the song nearly a quarter of a century ago arid denied he ha* ever talked to IDillon about :the. .Qn,. Hbney"number. He said a obUabora- tor came . tp him with : the ^ On.: Johnriy'; Word.<5 iri. Chicago and that, they had sat down, arid worked'-out., the riiusic, usirig the brie.-.step rhytnm .; popular at that time. ^ He said the song sold IjOOQ.OOO copies during ,th? world war day.s. when it. waS tne rage at-all army Cambs. community :sbng fpsts lajid iri vaudeville .