Variety (May 1941)

42 BIU8I€ Wedn0dda7, Maj- 28, 1941 15 Best Sheet Mnsi£ Sellers (Week ending May 24, 1941) Intermezzo Schuberth Things I Love .CampbeU My Sister and I .'.. -BMI I'll Be with You in Apple Blossom Time. Broadway Maria Elena. Southern Amapola Marks South of North Carolina Porgie •Dolores ('Las Vegas Nights') Paramount Number 10 Lullaby Lane. .Warren Hut Sut Song Schumann G'bye Now 3MI Do I Worry? Melody Lant Walkln' by the River BMI San Antonio Rose Berlin Band Played On P.D- •FUmusical. Complete ASCAP Revamp jContlnntd from page I; Jack Mills in Pre-Trial Exam; Camtichael Suinir Jack Milb, president of MiUf Music, Inc., and Gotham Music Serv- ice, Inc., was ordered to appear for an examination before trial on June 6 In N. Y. supreme court in connec- tion with a $20,000 suit against the corporations by Hoagy Carmlchael, songwriter. Examination was ordered by Justice F. Carew in N. Y. supreme court yesterday (Tuesday). Carmlchael is suing for royalties on 12 songs which were delivered to the defendants between 1924- 1930. The songs Involved are 'Star- dust,' 'What Kind of Man is You,' 'Manhattan Rag,"Rlver Boat Shuffle,' 'Boneyard Shuffle,* 'Washboard Blues,'. 'March of the Hoodlums,' 'Harvey,' 'Barbaric,' 'High and Dry,' 'South Breeze' and 'My Sweet.' De- fendants claim to have paid in full. which it has been maintained have become obsolete as far as the law of the United States In 1941 A.D. is concerned. Some see ASCAP's ulti- mate function as a collection agency, akin to Harry Fox's (Music Publish- ers Protective Ass'n) trusteeship on synclironization and kindred rights. BevoloUonary Decision ASCAP had been founded upon the French system of royalty com- pensation and now the U.S. Supreme Court, obviously influenced by the many Industrial ramifications .at- tached to music uses, has laid down the dictum that a performing right ■4s no more free of monopolistic re- straints than a plant turning out aluminum pots. It's a revolution in legalistic thinking and destroys with one swoop the theories maintained by outstanding jurists for many years that the copyright law grants a copyright owner a monopoly in his work, end that this monopoly was not subject to the same regulations as other articles of commerce. The Circuit Court of Appeals which had passed on the Nebraska -case held that ASCAP, in fact, was a monopoly, but that the state law went too far In the amount of bur- dens and penalties Imposed on ASCAP ^d that the whole thing tended toward confiscation. Justice Hugo- L. Black, rated by ASCAP as one of ita bitterest foes when he served in the U. S. Senate, obvious- ly seized upon this monopoly ad- mission for the keystone of his far- reaching decision. BMI and SESAC These trade lawyers say that they do not see how Broadcast Music, Inc., can escape the'-business stric- tures of the Nebraska-Florida laws any more than ASCAP, or such other performing rights organization as the Society of European State Authors and Composers (SESAC) and Associated Music . PuKlishers, Inc. (AMP). BMI, they pointed out, might, de- spite Ita control by ihi broadcasting industry, be called an extension of the monopoly backward, and even though BMI is expected to do any- thing it's told to do in these states, it would still put in a none-too- profltable position the interests of publishers with whom it holds con- tracts, such as E. B. Marks Music Corp., M. M. Cole, Inc., et al. In ASCAP, the point stressed was licensing, so that the users In Ne- braska and Florida are free to deal direct with the members. ASCAP is confident that the user- groups that fostered the legislation, in Nebraska and Florida will find that they have gained a Pyrrhic vic- tory. They, and the state authori- ties designated to supervise the law, will be faced with constant turmoil and anxiety over obtaining rlghta from the individual copyright own- ers and the probabilities of having violated the Infringement provision of the copyright law. Of particular curiosity to ASCAP is how the picture theatres in those states will react to the situation, since the music ^hey use is already inscribed on the soundtracks of films coming into their houses; thus leav- ing them no choice of Individual bargaining for their musical product ASCAP Leaders BMI Board hD.C. June3 On FCC Mission Board of directors of Broadcast Music, Inc., will not hold its sched ided meeting In New York Tuesday (3) because mpst of them will be in Washington that day attending the hearing on the White resolution be- fore the Senate's Interstate Com- merce Commission.' This hearing is slated to open Monday (2). The res- olution seeks an investigation of the FCC's authority to regulate the busi- ness, relationship between the net- works and their affiliates. ' The BMI board may hold the meet- ing as soon as the senatorial com- mittee has adjourned its hearing. NBC-CBS Plugs ANTI-ASCAP BILL WITHDRAWN IN CAL - Continued from page 4>s fensives can they hope to salvage and rehabilitate their interests. NBC 'Know Nothing* Last week representatives of^ ASCAP issued statements that the ^^utZ^ ^^TA^Jl!^!^iX^ir Sacramento, Cal., May 27. with NBC on a deal, but nigh NBC ^ , „ , . , officials kept insisting that they Jack Tenney, Los Angeles song, 'knew of nothing that had happened writer-assemblyman, has withdrawn which could justify such a predic- hU anti-ASCAP bill and placed it on tion.' ASCAP's conferenAs wi* the Inactive file, kiUing it for this CBS have not been so mtensive and L^j^.^ legislature. He gave yesterday (Tuesday) intmiations reason for abandoning the meas- came from network sources, that - further discussions might have to be deferred until web officials hav6 had an opportunity to study the impli- cations- of the U.S. supreme court's decisions in the Nebraska and Flor- ida cases. It was stated that they didn't want to enter into an agree- ment and then find that it was not operable under those decisions. ASCAP Adamant In ita discussions of the past week NBC has found ASCAP adamant about reducing the flat commercial fee (9%) contained in the Mutual agreement, but the indications are that NBC in ita negotiations will not concern itaelf with this point as much as ita drive to get such added di.scounta as to reduce substantially the total annual amount it will have to pay ASCAP on > network busi- Following compilation of plugs on NBC and Columbta'a Neio York outlets (WEAF, WJZ and WABC) lor th* week beginning Saturday, May 17 and ending Friday, May 23, Irom 6:30 o.m. to 1 a.m., was furnished intact by Broadcast Music, inc. Tht* data was not .collected via HstenlTiir post but from logs provided BMI by the networks. BMI expects to set up listening post through students at either N. Y. U. or Columbia University by June 9, so that a dally recap of plugs on these network stations can be available to those interested. Intermezzo Schuberth 41 My Sister and I —.. BMI 41 Do I Worry? Melody Lane 40 Things I Love : ..Campbell 35 Oh, Look at Me Now!.. Embassy 33 Amapola Marks 33 Maria Elena Southern 30 Wise Old Owl ..BMI 29 South of North Carolina Porgie 27 Number 10 Lullaby Lane Warren 27 Two Hearts That Pass In the Night....... Marks 27 Until Tomorrow r Republic 27 G'bye Now BMI 27 Walkin' By the River BMI 28 Georgia on My Mind Southern 23 With a Twist of the Wrist . BMI 22 Time and Time Again London 22 There'll Be Some Changes Made Marks. 21 Hut Sut Song Schumann 21 Everything Happens to Me ...Embassy 20 Mutual Network Plugs The following fobulafion of network popular music per/ormancej is con' fined to WOH, New York release for. Mutual Broadcasting System. The compilation herewith covers the week beginning May 19 (Itfonday) and ending May 20 (Sunday;, from 8 a.m. to 9 a.m., and is based on daily recapitulations furnished by Accurate Reporting Service, which maintains its own listening posts. TITLE PUBLISHER TOTAL Dolores...'Las Vegas Nighta Paramount .... 15 I Found a MiUion-Dollar Baby Remlck 10 Begin the Beguine Harms 9 Oh! Look at Me Now! ...Embassy 9 ~ ■ ■ .8 8 7 7 . 5 5 I Understand.. Feist .... My Sister and I BMI Intermezzo Schuberth Memory of a Rose Shapiro .. Amapola Marks ... Aurora ' Robblns . Don't Cry, Cherie Shapiro 5 Hut Sut Song .• Schumann .... 5 These Things You Left Me Regent 5 You're Dangerous. ..*Road to Zanzibar Santly 5 • Filmusical excerpt. ure, but it's understood he feels that the Society is living up to the pro- visions of the reforms demanded in his bill and that there is consequent- ly no need tor the -legislation at this time. Gov. Culbert Olson signed a meas- ure requiring managers to guarantee wages for actors and others em- ployed in theatrical productions. Bill' provides that managers must post security for such payments with a bank or trust company to cover the wages. Law is effective 90 days after the adjournment of the legis- lature. that the Society will still.be oper ating, beginning with next Tuesday NBC also wante ASCAP to (3), under a Government consent make several basic changes in ita decree which legalizes it as far as ' ^^t sustaining fees on the ground the Federal courts are concerned. ASCAP -officials stated .that they could not see wherein the' Nebraska- Florida decisions would seriously affect the Society's methods of do- ing business in the future as far as the country in general is concerned. All th^ Society will do is to refuse to grant any licenses to broadcasters, dancehalls, theatres, hotels, etc., in these states, so that such users, to protect themselves against tlTe penal- ti^ of the Federal law, as provided for in the copyright act, will have to get in touch directly with the in- dividual copyright owners. ASCAP Stance These ASCAP officials hold that that while the terms contained ita the Mutual contract may be okay for the high income stations they will put the stations with incomes of from $150,000 to $50,000 in a position of paying more .than they have in the past. So iar, according to NBC, ASCAP has shown no tendency to make concessions on either counter propositions. Under the Mutual-ASCAP deal the reductions include a scale of sales commissions on net sales which range from 15% for the first $1,000,- 000 to 1% on more than <20,000,000. NBC contends that this sdale may be okay for Mutual, but because of NBC's far greater volume of income the Black opinion is not as sweep- \ it is much too limited and if there U. S. Record Reorg Plan OK'd in N.Y. Yesterday Black Decision Contlnaed from paie 41 ,^,^^ straint of criminal' proceedings is justified,' Justice Black commented. 'Yet from the lack of considera- tion accorded to this aspect of the complaint, both by complainanta in presenting their case and by the court below in reaching a decision, it is clearly apparent that th^e was a failure to give proper weight to what is in our eyes an essential pre- requisite to the exercise of this equitable power. The clear im- port of this record is that the court below thought that if a Fed- eral court finds a many-sided state criminal statute unconstitutional, a mere statemen^by,a prosecuting of- ficer that he intends to perform his duty is sufficient justification to war- rant the Federal court in enjoining all state prosecuting officers from in any way enforcing the statute in question. Such, however, is not the rule.' Not Irreparably Hart in.» t « • ...... There was no showing^of 'excep- The plan^oj reorganization of the jional circumstances' or any proof was approved j^at ASCAP was in 'great and im- U. S. Record Corp, formally yesterday (Tuesday) by Judge Vincent L. Leibell in N. Y. federal court, following approval of the plan by 92% of the creditors. An affidavit of Lowell A. Mayberry, treasury of the company, disclosed ^J^.?^ uTe-'flnf ^ay 'oT'u>e "=7"o? Florida laws, noting that while somr^ I adopted the Cashman resolution call- I ing for the enforcement of the law ! passed by'^'the 1941 legislature relat- 1 ing to ASCAP. The law requires li- censing of all ASCAP agenta in Wis- consin and stipulates that they shall pay to the State 25% of all gross re- ceipta collected for the playing of copyright music in the State. The Secretary of State Is held re- sponsible for enforcement. - Meantime Robert Hess, ASCAP at- torney, testified on Saturday that ASCAP has from 1,000 to 1,200 con- tracte with users of ita copyrighted music in Wisconsin, exclusive of ra- dio stations. The statement was made during an adverse examination be- fore Court Commislsoner Morris Stern. Hess has filed a suit for infringe- ment of copyright against Wiley Young, operator of the Allis House in West Allis, charging that Young played The Waltz You Saved for Me' without permission of Leo Feist, Inc, owner of the copyright or paymenf of a copyright fee. The ASCAP attorney admitted for the purposes of the record that ASCAP has* been operating in Wis- consin without a license as required by a law passed in 1939. He said also that he felt the law in^question was aimed at ASCAP.alone. Fred Wright, Jr., attorney for Young, asked if it were true that mediate' danger of being Irrepar' ably hurtr^ccordlng to the Supreme Court spokesman. Justice Black added that, under the dual system of government, the Florida Supreme Court—not a Federal tribunal—has ASCAP collected $75,000 a year from ing, in so far as the Society's re- vised business structure is con- cerned, as they might seem at first fiance! The decisions merely pro- vide that^ any substantial group which fixes a price for music is in restraint of trade, but, according to is to be a deal ASCAP must revise the scale all along the line. Sustaining Scale The sustaining scale that NBC ob- jects to provides for the monthly payment by a-station of an amount equal to ita highest one-hour pub- ASCAP, there-is nothing in this con- , lished rate, but this at no time is to straint' which prevente it from con- 1 exceed one and a half times the rate tinuing to function as a policing and the station paid in 1940. NBC's con- coUecting agency. Under.' tha''coa^ jitention: is-.>thati this .- arrangement aent decree ASCAP has no exdu9tver.'''wouldiiUtvthe&:outtttB>lh ihe-middle right to grant license' a3te-''ciS}>y-;jibr&Cla(is.ihai:!d niRb'itbat!^ tbtt-'^sOgile Tight owners allied with ASC^AP fit'Ymust^bs xevlBed>^t(iat''th'e8e"itatidni tain equally rlghta of bargainih|^<ftnd)>wduld be required to pay slightly $43,881 allowed, 53 which amounted to $40,827 approved the plan. The plan provides for a transfer of all property to a group of officers and directors of the old company, headed by Eli E. Oberstein, with these officers agreeing to pay 14% to unsecured creditors and all priority and administration claims in full, Administration claims will amount to $3,490. A total of $67,000 in claims have been expunged. U. S. Record applied for reorganization in September, 1940. less and not more than they did in 1940. NBC has yet to enter into a dlsr. cussion with ASCAP on a par pro- gram plan which it can offer ita affil- iates as an alternative to the blanket ararngement NBC holds that the per program plan as contained in the Mutual. contract provides for both a floor and a ceiling, which, ac- cording to NBC's viewpoint. Is tan- tamount'to> a flat fee proposition. features may be unconstitutional, others may pass the test. 'Passing upon the possible sig- nificance of the manifold provisions of a broad statute in advance of ef- forta to apply the separate provi- sions Is analagous to rendering an advisory opinion upon a statute or a declaratory judgment upon a hy- pothetical case,' Justice Black repri- manded. The Supreme Court, while leaving the way open for ASCAP to con- tinue challenging Individual provi- sions of the statutes; directed the lower courta to tear up their re- straining orders. The Nebraska case was settled In a curt decision refer- ring to the Florida litigation, with Justice Black commenting there was even less evidence in Nebraska of any threata to do irreparable harm, • . Unfriendly Wisconsin Milwaukee, May 27. The State Senate last Thursday Wisconsin users of copyright music outaide of radio. Hess refused to give any figures in reply beyond stating that the $75,000 figure was not true. The hearing was adjourned to to- day (Tuesday), 3% In Carolina Columbia, S. C, May 27. South Carolina makes the latest state with a law requiring the American ' Society - of Composers, Authors and Publishers.to pay a tax on the re^nue collected locally. This one, as passed by the legisla- ture last week, call for 3% on the gross royalties. Law also required ASCAP to file copies of Ita composi- tions with the controller general, Under the act the theatre, radio, hotel, etc., user must deduct the tax before forwarding the license fee to ASCAP. Milton Bcrle and Bert Pelllsh sold their song, 'Boogie Woogle Rookie,' i to the 'Jump for Joy' stage show.