Variety (May 1941)

Wednesday* May 28, 1941 MUSIC 41 ASCAFsBeenTakm'Ita-Plenty Wiitain a period of two montbs the American' Society of Composers, Authors and Publishers has had to take it from Judges, who, when they gerved in the U. S. Senate, were considered as the most implacable Congressional foes that the Society had ever had to contend with in all its history. It was Federal Judge Ryan Dufly in March who im- posed the fines In the settling of the Government's Milwaukee anti-. trust case, and on Monday (26) it was Justice Hugo Black's view- point on price-fixing that served as the basis for the U. S. Supreme Court's unanimous ruling against ASCAP. Recalled in ASCAP circles yesterday (Tuesday) was an incident in which Judge Black and ASCAP figured in the early '30s. the occa- sion v»as a hearing before the Senate patents and copyright committee, and during It Black and the lata Nathan Burkan, as ASCAP counsel, engaged in a passage of bitter acrimony that remained the topic of conversation In the music businesa for a long time. Justice Hugo Black Writes Opinion Supporting States Versus ASCAP; Probably Encourages New Attacks BACKGROUND OK FLORIDA'S ACnON The Florida anti-ASCAP matter had its second inning before U. S. Supreme Court on Monday (26). The first round was. staged on April 17, 1939, with ASCAP the victor. At that time ASCAP had locally ob- tained an injunction against the Florida statute, whereupon the State of Florida hauled the whole thing into the Supreme Court on the i grounds that such an injunction could not be issued without demon- stration that ASCAP was suffering $3,000 or-more in damages. At the same time -ASCAP won a decision over the State of Washington which had refused to admit a complaint by ASCAP leMfe S^ StallerS^ Feeling Grows Society's Future Demands Aggressive Meth Jack Kapp to L A. Jack Kapp, Decca Recording prez, has gone to the Coast for a fast couple of weeks. Won't supervise any name waxing now, as is usual, when he sits in on the Bing Crosby and kindred plat- ters, but will set plans for an in- tensive recording schedule as soon Wadilngton, May 27. State legislatures can outlaw price- flxing 'combinations' of copyright owners, the U. S. Supreme Court held Monday (28) in two unanimous decisions (with one Judge not par- ticipating) setting the American So- ciety of Composers, Authors and Publishers back on Its heels. New York Federal Court consent decree j does not constitute carte blanche for Tin Pan Alley to join hands in lay- ing down ■ uniform reproduction terms. In a decision by Associate Justice Hugo L. Black, the highest tribunal upheld the validity of both the Florida and Nebraska statutes at- tacked by ASCAP, declaring the Federal copyright law does not establish the right of copyright- holders to pool their resources and take actions which state legislatures forbid as restraints of trade. What- ever the legislatures deem contrary to the public interest can be forbid- den as long as the Federal Consti- tution is not impinged. Justice Black said. I Opinion In which all members ex- cept Associate Justice Frank Murphy (former U. S. Attorney. General) joined was a green light for antl- ASCAP legislatures. At least, until Congress gives legislative sanction to pooling of copyrights. Specifically, the final umpires re- versed the decision of the three- judge Federal court which enjoined enforcement of all of the 1937 Florida law and part of the 193S Florida statute, affirmed the failure to ban application of the remainder | of the 1939 Florida law, and reversed. the injunction against the Nebraska act A complete loss for Gene Buck & Co.- I The lower courts committed errors In holding that aU of the 1937 Florida and the Nebraska statutes were un- enforceable because parts of . them were deemed to violate the Federal Constitution, Justice Black ex- plained. Separability clauses are enough to save the remainder of the j statutes—the portions which are most unpalatable to ASCAP. The sections not considered, the Supreme Court spokesman explained in his, oral summary of the formal, written. opinion, were the most pertinent and | the only 'ones that really should have. been taken into account. | Thus, in back-handed fashion, the highest court gave a go-ahead sign to state attorneys general who want to compel ASCAP to do business on a, per-piece basis If Tin Pan Alley i wants to operate in their states. The copyright pool clearly comes within the challenged laws. Justice Black remarked. Be: Injunctions - •Federai~c'6urt"'lnjunctlsns prevent- ing enforcement of state laws should \ not be granted as a matter of course, i the decision said, even if they are unconstitutional. Mere apprehension that damage will be dorie is insuf- ficient to justify restraining orders, and the statements of local prosecu- [ tors that they will cradi down on anybody who does not obey the state statutes cannot be construed as 'threats' of immediate and irrepara-' ble dtunage. "The imminence and immediacy of proposed 'enforcement, the nature of the threats actually made, and the exceptional and irreparable injury whibh complainants, would sustain if those threats were carried out are amo;pg' the .vital allegations which mu^ be shown to exist before re- (Continued on page 42) ' Is That Bad? Hollywood, May 27. Being placed in class 3A by his draft board isn't such a bad break, opined Ben Oakland, songwriter. 'It's better than my ASCAP rating,' he quipped. More ASCAP Coin FromCafes^Hotels; U.S. Spending More License income of the American Society of Composers, Authors and Publishers from such sources as nightclubs, hotels, and dancehalls has picked up substantially dur- ing the past two months. As compared to the income for a like period a year ago the increase amounts to 10%. John G. Paine, ASCAP general manager, thinks that this development reflects a general upswing In spending for diversion. Not only are more spots being opened up, according to Paine, but many established places are install- ing live music. The Maine and New Hampshire territories are now being operated directly by ASCAP through Its Bos- ton office. Licensing In these states had previously been handled by local lawyer-reps. SAYS PU6UC HAUS ASCAP MUSIC RETURN as the crooner gets clear of his film ASCAP against its anti-ASCAP law,' chores later in the season. also on the grounds that there weren't $3,000 In damages. { In short, the first court round was ^ If O * on ^ technicality. At that time, the I ^\plf > ^NPrViPP majority decision expressly said: WVIl Mwl .TlvV 'We find it unnecessary to decide whether this unincoroporated asso- ciation (i.e., ASCAP) has standing^ sue and confine our decision to ine amount in controversy between the members of the Society and the de- fendants..' Thus ASCAP won sim- ply because it could show enough damages requisite to Federal litiga- tion. In both of these instances, Justice Black dissented. Said he: 'I be- lieve the decree enjoining and suspending Florida's law prohibiting monopolistic price flxii^g should be reversed because (1) no showing has b^ made that casts any doubt upon a State's power to prohibit monop- olistic price fixing, (2) complainants (ASCAP) failed to susUin their Musk Racks Working WeH Members of the Music Publishers Protective Association were In- formed Monday (26) of the effective- ness of music racks In chainstores as a merchandising medium in a let- ter received from the MPPA's chair- man, Walter G. Douglas. The infor- . . , ^ , ....... matlon came in the-form of a re- burden of showing $3,000 in con- port for the period beginning April troversy, as required by statute, (3) the court below failed to require a bond or other conditions adequate to protect the people in Florida who might be injured by the injunc- Itlon...' Minneapolis, May 27. Return of ASCAP music to WLOL stimulated listener interest from the very outset, according to E. P. Shu- rick, manager of the station. Mutual outlet here. "There was much com- ment after the opening Sunday night coast-to-coast broadcast,' says Shu- rick. 'Telephone calls that night and the next day were more numerous than for some time, and we had many inquiries regarding the extent to which the ASCAP numbers would be on the air. .,,'Return of such old favorites as •Tea for Two' in the programs of the remote control bands after 10 p.m. seems to be arousing particular en- thusiasm.' As fast as It can negotiate the con- tract, Shurick- says, WLOL will ob- tain a complete ASCAP license, per- mitting it to broadcast ASCAP num- bers originating here. Alfred Settles Suit Suit of Alfred Music Co., Inc., against Bregman, Vocco Sc Conn, Inc., Joe Audino, Nick di Rocco and Bill Keeshan. was settled and dis- continued out of the N. Y. federal court. Action claimed plagiarism, in the song, 'Let's AU Sing Together' of plaintiff's song, 'Valzer Trullallero,' Plaintiff's song was written by C. Bruno and E. Di Lazzaro, and it was assigned to Alfred Music, July 26, 1938. Defendants' song was pub- lished Feb. 1, 1940. An Injunction, accounting of profits, and damages had been asked BMI ROYALTY CHECKSUTE Broadcast Music, Inc., last week sent a circular letter to its writers advising them that because of audit- ing difficulties it has been foimd nec- essary to postpone their royalty statements for the first quarter of 1941. The letter stated that these statements, which were due AprU 30, would be mailed out at the latest June 15 and that thereafter the ac- countings would 'be available regu- larly on the 30th of the month fol- lowing the particular quarter. BMI also has yet to determine how much is due for performing uses on works broadcast by its subscribers prior to Jan. 1. Writers involved I were paid off for that period on an estimated basis and Informed that the differences would be forthcom- ing after the performance auditing system had been perfected. 1940, and ending April 1941, and dealt exclusively with the J. J. Newbery stores. There, were altogether 121 self- service racks in operation during this period, 71 of them installed in 1940 and the balance this' year. In the course of the 12 months 97,173 copies of music were shipped for these racks and 21,276 copies were returned, Aiaklng a net sale of 75,659 copies, or 78.6%. Appended to the report was i statistical breakdown showing the actual percentage of sales for each location, Douglas' letter remarked that when music conditions returned to normal aqd all publishers had radio networks available for exploitation an effort would be made to induce other chains to adopt the rack de- vice for the resumption of sheet music as an article of sale in their stores. By BEN BODEC Board of directors of the Amerl- 1 can Society of Composers, Authors and Publishers met yesterday after- ■noon (Tuesday) to review the progress, if any, made In contract I negotiations with NBC and CBS, and to determine what action should be taken to bring about a showdown with these networks. The special meeting was called after a majority of the directors had in private con- versations come to the conclusion that NBC and CBS had no Intention of consumifiating a deal in the im- mediate future and that regafdless of the several discussions that NBC and CBS representatives have held with ASCAP executives during the past week the two webs were set on stalling the matter until the fall. As the ASCAP directors went into' their conference yesterday there was a strong disposition among the more influential of them to meet the situ- ation with drastic strategy. This group has been expressing itself as favoring the immediate filing of a se- ries of conspiracy suits against NBC, CBS, the National Association of Broadcasters and numerous stations affiliated with the two networks. The amount of damages cited in the discussion of such triple damage ac» tlons has ranged from $25,000,000 to $100,000,000. These ASCAPltes hav« taken the position that the worst aa far as they are concerned has al- ready happened and that only through a series of hard-hitting of- (Continued on page 42) WARNERSWARN OTHER PDBS ON RENEWALS KWK Steps in as ASCAP Status SInts Out KHOX From SLLonisGTic Event As the result of its victory In th» 'When Irish Eyes Are Smiling' cas* the Warner Bros, music publishing group, in a^ circular letter to the trade this week put all concerned on notice against acquiring the renewal rights to works published prior to 1032 by WB firms. The Warner letter points out that prior to the adoption of the Standard Uniform Popular Songwriters Contract in 1932 by the Industry the agreements used by the WB firms granted the latter the re- newal rights of a work as well as the original copyright 'This advise,' states the WB letter, 'Is sent you so that you may not, as others have done, act to your own disadvantage in attempting to secure rights In or under renewals of copy- St Louis, May 27. Because music-Iyrlcs by Slgiiiund Romberg and Oscar Hammerstein 2nd, of 'New Orleans,' which will be Sidney"M. Kaye, BMI v.p., stated J world-preemed In the alfresco thea- J righr whlVhT)re'''aiready° ovra tre in Forest Park on June 5, is con- us.' The assignment of the renewal trolled by ASCAP, the local CBS out- ; rlghU, in the pre-1932 contracts, ac- , ,„ ^ - , . . , let here, KMOX, will not broadcast 1 ^'"■'^'"e *^ Warners, was an auto- tlon for 30 days and give a detailed guarantors' dinner of the breakdown of useages by publisher Municipal Theatre Assn..the night I reached the point where one girl can ' audit in two days the logs of a sta' and writers. DOWN MEXICO WAY Bobbins Veers From Concarhomlm To Mex Sonpsmltbs Jack Bobbins held a Pan-American powwow at his New York offices Friday (23), which was attended by several of the leading Mexican songs- writers, including Maria Grever CTl- Pi-Tin"), Alberto Dominguez CFren- esi'), Jorge Negrete, Chucho Mar- tinez Gil, Gonzalez Cureal, Ramon Armengod and Mario Ruiz. Purpose of the meeting was to seek means of obtaining, greater recognition for Mexico's popular music. Robbins informed the writers he was opening larger offices In Mexico City within the next few weeks. This would be added to his Latin-Ameri- before the 12-week season gets un der way. In previous years song hits from several of the pieces pre- sented during the season have been warbled by top singers and the en- tire proceedings carried by approx- imately 65 CBS owned and affiliated stations. > It will be the first time In four years that KMOX, which paid all of the expenses except those of the or- chestra and chorus, will be out of the picture. KWK Is the sole Mutual station in St. Louis and Ray Dady, station manager, Romberg, Ham- merstein and Paul Belsman, mgr. of the Municipal Theatre Assn., are i huddling on plans to air 'the dinner affair. The acoustics in the Gold ' Room at Hotel Jefferson, where the dinner will be held, are none too , good and there Is a possibility a re- cording of the top tunes in 'New Or- , leans' will be made elsewhere and ' matic one, so that the writers In- ' volved have no choice as the renew- I als become due, but to turn such rights over to the WB catalog con- ! cerned. The Warner catalogs are I'Harms, Inc., M. WItmark 4c Son, I Remlck Music Corp. and New World ■ Music Corp. ! Judg<: Edward A. Conger In the , N. Y. federal court Monday (26) is- { sued his findings of fact and conclu- sions of law in the 'When Irish Eyes Are Smiling' case. The defendants in this suit were Fred Fisher Music Co., Mills Music Co. and George Graff, Jr. Song had been written by Ernest Ball, Chauncey Olcott and Graff. Witmark's action was primarily di- rected against Fisher and Graff, who had' just before the renewal rights became due assigned them to Fisher. Witmark contended that Graff had assigned to it this same right when he made his original royalty agree- ment and Graff's counsel advanced can network of outleU, which now piaygj back for the diners arid other , the counter-arguhient that such an comprise offices in Havana, Rio de Janeiro, Buenos Aires; also in Barce- lona, Spain. Robbins Music has signed - Ruiz, to an exclusive songwriting contract. First tunes to be published tinder the new agreement are 'Estoy Enamo- radb,' 'Fe,' 'Coral,' 'Enigma' and 'Cuando Tu Vuelvas.' Mutual stations. - Given Scboeh, who operates . a professional-model studio in Philly, authored 'Rise Up and -Shine vUp Amei^ca,' -music by .Dave Balidock and Duke Morganj. Independently published in Philadelphia. • i assignment was invalid because it had been granted years before the renewal rights became Graff's under the law. Judge Conger in bis ruling ' stated that as long as the writer waa J&UWe when the renewal became dua "hp/had no choice but to convey the nights'he had agree to yield, in the ' original .•'contract. • • •