Variety (May 1941)

Wednesday, May 21, 1941 MUSIC 41 Inside Stuff-Music Amsco Music Sales Co.* Inc., Amsco Music Publishers Co., Inc., Abra- ham Schlager and Alexander Wise, filed one of the most complete answers and denials to a plagiarism suit ever seen in the N. Y. federal court, Thursday (15)- Action Is being brought by Alfredo Philipp and Marta Clsternas de Philipp, assignees of Osmon Perez Frelre, composer of 'Ay Ay Ay,' with the claim being the defendants published the song in a boolc called 'Let's Sing.' • The answer declares that there are no facts sufficient for a cause of action; that Freire is not the composer of the song, but that It is made up of melodies in the public domain; that it was sold in the Argentine with- out a copyright; a general denial of the infringement; that Freire assigned the song to others besides the plaintiffs, so they have no right to bring the action; that the defendants published the song in 1933 and the plain- tiffs by waiting eight years are guilty of laches; and lastly, others in the U. S. have printed the song in the last 20 years without any complaint. Sheet music sales of ASCAP-affiliated publishers continued at a low ebb last week. 'I'll Be With You in Apple Blossom Time' (Broadway Music) and Paramount's 'Dolores' are the only ASCAP tunes represented among the 15 top sellers. 'Apple Blossom,' revival, has been aided by the An- drews Sisters' recording plus their spot in the Abbott-Costello film, 'Buclc Privates." 'Dolores,* from 'Las Vegas Nights,' has also been helped by the pic in addition to recordings by various bands. Of the remaining 13 numbers, six are published by independent firms affiliated with BMI, two "by Southern, two by BMI Itself, one is in the public domain and Marks and Schubert Music (Sesac)' complete the list with one apiece. Mutual's return to the ASCAP fold is too early to register any effect upon sheet .sales. Suit of Hdrry Von Tilzer and the Harry Von Tilzer Music Publishing Corp. against Jerry Vogel Music Co., Inc., Jimmy LucaS, William Dillon, Jack Mahoney, Jennie A. Browne Tafuri, and the estates of Howard Graham and Jean Harvey was placed at the head of the non-jury federal court calendar for trial this spring by Judge John C. Knox in the N.Y. federal court last week. Action claims the defendants are infringing on the rights to seven songs, music to which was written by Von Tilzer, with lyrics by sorhe of the defendants. Von Tilzer claims the renewal rights, while some Of the lyric writers have turned over their renewal rights to Vogel, Decca Record Co. has raised the retail price of its small electric phono- graph machine from $19.99 to $20.95, giving the 'increasing cost of ma- terial' as the reason, and the trade is wondering whether this presages a boost in the price of phonograph records. Company sales execs gave it as their opinion several weeks ago that even though the cost of shellac and packing material has gone up there was no intention of hiking record prices, at least for the immediate future. Trenesi' Suit Hints Bat Does Not State Writer's AS(;AP Link Shut Him Out Leonard Whitcup, lyric writer and composer, filed a $25,000 suit in the N. Y. supreme court Monday (19) against Southern Music Publishing Co., Peer International Corp., a sub- sidiary, Promotora Hispano Ameri- cana De Musica, a Mexican publish- ing' house, Broadcast Music, Inc., Ray Charles and Samuel R. Russell. Whitcup is the author of the Eng- lish lyrics to 'Frenesi,' a song writ- ten originally in Spanish by Alberto Dominguez. It. is claimed that after having written the English lyric,- and as- signed them to Promot I \ which turned over the rights. to Southern for publication in this country, the oth^r defendants secured the ser- vices of Charles and Russell, and had them write an English trans- lation, substantially the same as that of Whitcup. The plaintiff was to receive one cent per copy on sheet music and 12Vi% on all mechanical royalties, and as a result he will receive, and has received nothing, it is claimed. Southern in the mean- time has transferred its rights to Peer and given certain exclusive rights to BMI. Plaintiff is a member of the Amer- ican Society of Composers, Authors and Publishers and hints are dropped throughout the complaint while no direct accusation is made, that the cause of the switch is due to his membership in ASCAP. An injunction, accounting 'of profits and :i25,000 damages are sought. Museum bt Modern Art, N. Y., at its first 'Coffee Concert' a couple weeks ago, served java provided by Joseph Martinson, head of the coffee concern bearing its name. Several music critics on the dallies said they liked the concert but the coffee was n.s.h. Martinson squawked that the museum was hurting his rep by preparing the mocha badly, whereupon he bought a pair of ducats lor the second concert to be on hand to prepare the entr'acte refreshment himself. Songwriters Must Give More Cause For Ra^o Suit Plenty of postmortemlng in Lindy's following the 'ASCAP Salutes Mutual Broadcasting System' show, deprecating its slowness and verbosity, the music men within the trade being the severest 'critics of their own program. Lew Brown and Ray Henderson, who have their own music publishing firm, turned .over 'Don't Cry, Cherie,' which .they authored, to Shapiro- Bernstein for a $3,000 advance. 16TH CENTURY 'COPYRIGHT' . Toronto, May 20. On a charge of copyright infringe- ment, the Church of England (Epis- copalian) In Canada, together with the Oxford University Press, are de- fendants in an action brou^t in the. Supreme Court here by Arthur Downing, Toronto publisher, who seeks an injunction, the delivery to him of all copies of the work in the hands of defendants, destruction of the printing plates, and damages of $25.000i Downing claims he holds the copy- right in 'The Office, of the Holy Communion,' set to music by John Marbecke in 1550 with modern organ accompaniment by Healey Willan. The work has been Included in the new Church of England hymn-book, with Downing stating that Willan asslgnisd all right and interest' in the new arrangement to him (Downing). The Church denies any knowledge of copyright; refuses to grent that Wil- lan is the owner of the ancient lOth Century composition; states that the . work has never been registered at Ottawa under the Copyright Act. Judgment is being reserved. Stoki's Kids Get Going Atlantic City, May 20. Some 4,000 turned out to hear the 1941 premiere of Leopold Stokowski's second AU-Amerlcan Youth Orches- tra In Convention Hall Sunday nigh^ Patrons jamming the large ballroom paid 50c to' $3.30 for seats and were as enthusiastic in reception as last year when idea was inaugurated here. Young musicians have been stay- "ing here as guests- of beachfront hO' tels.and holding rehearsals on Steel ■Pier. Monday they left on tour of U. S., Cancda and Mexico, closing next July with concert In Holly wood BowL CBS Gets Mnsic Pnb Charter-'Bot Only To Protect Use of Name' Albany, May 20. Columbia Music Publishing Corp. was chartered yesterday (Monday) to conduct a music business in New York. The capital stock was given as $20,000, with each share at $10. Rosenberg, Goldmark & Colin were the filing attorneys. Backp'onnd Check on the purpose behind the setting up of a music corporction by the Columbia Broadcasting System disclosed yesterday (Tuesday) a confliction in some of the statements. Ralph Colin, CBS counsel, declared that the network had merely organ- ized the company to prevent any- one else from using the same title and that CBS had no Intention of using the corporation for an active publishing operation. Colin said that the decision to in corporate the name had been pre- ceded by the discovery that a firm, known as the. Columbia Music Co. was operating In upper Manhattan and that there was some confusion' over the firm's identity with CBS. His office, stated Colin, had got in touch with the owners of the Co- lumbia Music Co. and with the pay- ment of some money Induced them to give up the 'Columbia' and as- sume another tag for their business, To avoid cny recurrence of such confusion it was decided, added Colin, to organize a dummy cor poration. The Columbia Music Co. is owned by four brothers, Gilbert, Charles, Samuel and Irving Engelman. Gil- bert Engelman disputed Columbia's version yesterday (Tuesday), de daring that there had been some dickering by CBS for the transfer of the name but that he and his broth ers had refused to sell the rights Gilbert said that the family publish Ing business has been In existence Jto^'ill, y/eara. ,, The 14 songwriters, all except one members of ASCAP, have been ordered to file an amended com- plaint against the rest of the music world whom they are suing. Justice Denis Cohalan in the N. Y. supreme court last week ruled parts of the complaint charging violations of the anti-trust laws to be federal matters only, and not proper subjects for the supreme court, and also declared that the plaintiffs must separately state and number their 21 charges. Action is directed against Neville MUler, NBC, Niles- Trammell, Lenox R. Lohr, Mark Woods, CBS, Edward Klauber, Broadcast Music, Inc., John Elmer, Walter Damm, John Shepard, m, Paul Morency, Theo- dore C. Streibert, Sidney M. Kaye and Merritt'E. Tompkins, and seeks damages of $1,217,500, claiming that in 1938 the defendants entered into a conspiracy to put ASCAP out of business, and ruin the plaintiffs' chances of earning royalties. Some of the .more important charges al- lege the forcing of radio stations to play BMI music and reject ASCAP's, the formation of BMI to secure a monopoly on the air, and alleged violation of anti-trust laws. Plaintiffs are Frank Madden, Allan Flynn, Ira Schuster, Paul Cunning- ham, Nelson Cocane, Sammy Mysels, Ernie Burnett, Al Lewis, Vincent Rose, Larry Stock, Jean Schwartz, Stanley Adam's, Guy Wood and (Seorge Whiting, with Madden the only one not a member of ASCAP. Last-ForAwliiIe-%nnal Dividend' Is Expected From ASCAP Coffers AGIHA SUIT AGAINST PETRILLO UP MAY 29 KENNY 'LIFT' CASE Von Tilzer in Pre-Trlal Testimony on 'Little Skipper' Allegation Harry Von Tilzer was examined before trial Monday (19) in the N. Y. federal court at the request of teo Feist, Inc., whom he is suing. The Von Tilzer Music Publishing Corp. is another plaintiff, and Nick and Charles Kenny are defendants as well as Feist. Von Tilzer wrote 'All Aboard for Blanket Bay' in November 1910, and claims since January, 1939, the de- fendant Feist has been publishing 'Little Skipper,' which is claimed to be a plagiarism of Von Tilzer's song. The Kennys wrot'C 'Little Skipper.' An injunction, accounting of profits and . damages are asked. ASCAP BY-LAW OKAYING TO CUE PRONTO VOTE Members of the American Society of Composers, Authors and Publish- ers will meet at the Astor hotel Mon- day (2 pjn.), June 2 to vote on the ratification of the. organization's amended by-laws. These changes are to be ipade for conformance with the terms of the Government consent decree, which becomes ef- fective June 3. Within a few days of that meeting the Society with proceed with the election of six new writer and five new publisher directors. The mailed ballots, will have to be returned in 15 days. The next move will be to call a general meeting of the mem- bership to announce the names of the successful candidates. American Society of Composers, Authors and Publishers will prob- ably make a normal distribution of royalties for the current quarter, which ends June 30. By "normal distribution' is meant an amount close to what the divvy had been for the like quarter of the preced- ing year. Indications that such a distribution will be put through have already come from ASCAP officials, since there is now over $1,500,000 in the till, but the matter will not be decided until the June 26 meet- ing of the ASCAP board. The royalty purse for the second quarter of 1940 was around $1,- 100,000. When ASCAP made its dis- tribution for the initial Pi;'>.rtcr of this year it withheld SGOOOOO and advised the membership that the $850,000 which had been issued ps a special dividend just b'^tore the end of '40 was to be considered as part of the payment for the final 1940 quarter. If the proposal to pay a normal cut for the current quarter does go through, it will be the last sizeable divVy coming from ASCAP until some time after it has entered into agreements with NBC and Columbia and the vest majority of these net- work affiliates. The income from Mutual itself won't become Spe- cially apparent until the third quar- ter. . Ted Collins' Solo Co. Kate Smith states she has no in- terest in the new music publishing firm, Collwlll Music, which her man- ager, Ted CoUlns, set up within th« last two weeks. Her only connec- tion with It is that the firm now owns and publishes her net patriotic fave, 'We're All Atjierlcans.' Company has offices at Collins' management headquarters. • Suit of the American Guild of Mu sical Artists against the American Federation of Musicians and Its president, James C. Petrillo, sched- uled for Jiearing this week before the Court of Appeals, Albany, N. Y., has been postponed until May 29. Opposing lawyers, having already submitted briefs, will argue the case at that time. AGMA seeks to reverse the de cision of the Appellate Division, which refused to grant a temporary injunction against Petrillo and dis- missed AGMA's complaint looking toward a court trial for a per- manent stay. Plaintiff union is try ing to restrain Petrillo from carry ing out a threat of barring from radio, recordings, films, ete'., any In- strumental soloists who refuse to join the AFM and resign from YOtJBS or A STAB VTHV CBY EDWARD i R P O R T I 0 N Xif, M'>i"? '^.1' l-i'-i saV'- - -ii j-i ,\-•.<:'.: vrc- V:t-h .vli r