Variety (July 1924)

^^nesday, July 80t M>i MUSIC VARIETY 87 TEST CASE SUGGESTED FOR 2c ROYALTY PER DISC IMPOSED UPON RECORDERS l^y^n Gay'« Arguments That There Is No Monopoly Among Music Men—^Record MaJiers Hare Legal Right to Tai^ Numbers in Open Fidd, Once Released—Contends Law Unconstitutional—^Also Claims and Explains How Change in Law Would Bo^efit Record Companies Also AUTHORS* RIGHTS Vynn Ofty. popular compoanr and trrUtft and autbor of rach aoiiK fcKa a» "Th* Vamp." "Sand Dunes," "Ok!" Tata." •t •!•» ta on« «' tl»« f«w braln^i firMlanc« aoaswrttecp in «k* ITasliMM -who ctvM ator* than tumt»t thtMgit to fhm (ood and wMmf of tk* «B«ie Indoatry. JiMt how deeply Gay baa pondered over tka altmtloB beeome* aelf-evident fMm hi* lengltiy opinloaa In tb« gUtement herein. If aotblnr elae, it poreaenta an In- genleiia teelcbt Into the baslneos. Tbere are teelnded a nmnber of aa- lient arguments wblcl), for all their Iconoclaam are more than the out- burata of a radical. Gay'a radical- lim ia of a conatructlTO order and M to bla bineat regret that clrcum- atlnoee do not permit or afford him the privilege of devoting the rest •f his life to the eradication of these evOa without malice to any one, but for the good ef alt Gay's own story, told in bis own way, best covers it. The basic ar- gusent has to do wltb monopoly as applied to the "mechanicals" <word roU and disk record manufacturers), the music publishers and the song- writer, day's contention is that the nnsie business is the only in- dvstry In the United States which la Bot controlled by Itself, but dic- tated to by the U. S. Government particularly as applied to the two- c«at record royalty. Gay argues that the fundamental principle of the Copyright Law of 1909 vraa to protect the property rights of the writer and composer, and yet the promiscuous leasing of the record- tag rights to every mechanical •oaapaiiy defeats that very purpose. Claims Unconstitutionality Qay'a practical interpretation of the sltuaUon concerns Itself chiefly With the record people. He main- tains that were the leasing of the recording privileges restricted to one or a few companies on terms best aoitable to them by apecial agree- ment It would be to mutually greater advantage. The lesser companies, particularly the fly-by-ntghts, are in bnainesB a few weeks or months, and after making a try at floating a popular-priced record, go out of boslness, leaving a trail of unsatisfied royalty debts to the music men be- hind them, having in the meantime accomplished the added damage of cutting in on the sales of reputable conif)anies. With this purpose In mind Gay 8oes ao far as to contend the Fed- eral copyright statute of 1909 is un- canstltutionol and points out why. In sequence Gay's arguments are: XAII those who profess to know what's wrong with the music busi- ness never have the same story, for the simple reason none has the *Won to survey the general sltua- "•n from the heights anS see what "• wrong. "That there should be anything J»w>ng with as fertile, creative and beneflclal an industry as the popu- lar song business can be only as- »lbed to the fact that the source ^Si.'TDav. SILVER BELL ■■ BANJOS , ^eu; Catalog — Just Out .HE BACON BANJO CO. Inc. GPOTON. CONN. and supply of their own material la not protected. . N* "MoMiMly'' ''When any attempt to achieve Bvdt protection 1« made up goes the ery of IConopoIyl* tnm the me- cbanlcah people. But there is not one lota of truth in such a ory, which la only an ovttMurst ia fear of what wlU happen. When any nnlawfn) Mmhiaation ia prwrad ander Fad- era) Sbennaa aatl-trast law ehargee it riiould be aoaaethiag not concerned with the copyright law and its protective measarea. Whoaa Sana la HT "The eopiyrlght law protects the property vigbta at iadividuala Which leads into the questioa that when a xompo sa r creates a song it is his or it laat. There shoald be no half-way measara about It. If it is bia property he shoald have the privilege of giving it away or bartering or selling it ia any noan- ner beat suited to the individual, and not. aa now. when one record- ing company "caaa" it. it Iloaaaee •very other naebaaiea) eonoara, without reatrictioni to do likewise. "Havlnir this protection, one songwriter certainty cannot ba, a monopoly unless he were the only one in the wocid or he had control over an the othors la the world. "1 will BOW prova my theory how this would legltimatiae not only the musla^. publishing business, but the mechanicals as well, and make them other than parasites Hvlrtg off the creations of the others. The record people Bit back and wait for the music men to cre^e a commercial product for them lo reproduce on the araz and sell. Authors Are Protected "Why can*t a songwriter have all the protection of the by-products of his creation, like a novelist, for instance? When a book is acenor- ized and filmed by one company, does that license all the other pic- ture companies to make screen ver- sions thereof? What difference is there, then ,in the parallel of the transference of a song to the wax on a record or that of a novel to the cellalold of a motion picture fllm? And does the Government dictate to the book autbor just how he should dispose of his creation? "The present law regarding the release of mechanical rights is no more valid nor constitutional than a law would be compelling clothing manufacturers to release a pattern or a line of goods and let all people manufacture. It is literally true that under the existing laws the me- chanical companies can wnllc into your musical storehouse and leave an I. O. U. for two cents. Isn't it true that If the creator Is entitled to pro- tection of his property he also Is entitled to sell the by-products as he sees fit? It's a fundament.il prin- ciple and not one to cause a howl of "monoply." "A popular song is only an idea impressed In ink on paper. The idea Is protected by copyright and the entire unit it) only sold at the terras desir«>d by the music publisher; also the performing rights thereof. My opinion ia that the mechanical com- panies are not only violating the material rights of the copyright law but also violating the performinn rights becau.<ie wh.-it they are doing Is .celling the performing rixlits on the wax as the wax transcription of the song. And It Bcenjs to me that the American Society of Composors, Authors and rublishers has a good cause to levy taxes on records an<l rolls.". Protecting RecorcJcrt Ciay wa.s getting technical in all sincerity to drive home liis point. Tlie Hongwriter persisted, however: "The result wnukl be, if the law mre amended for the absolute pro- tection of the writer, that the big mechanical companies for the first time in the history would have a protection of their own business as would the small ones. Fur then, just like a .^mall company cannot make a replica recording a Paul Wbitemaa Victor record arrangement or the voice of Caruso since both are ex- clusive Victor artists, a song canned ezclasively by one company could be controlled solely by it. If a big bit the company could regulate the price and pay whatever royalty per record desired to the copyright oWner. "The small mechanical company could build a catalog of exclusive recordings and by progressive and sound principles improve and ex- ploit its wares without fear of molestation firom the others. "Tba abvioua cry that tha big record companica wroaM ba catting tha biff kits alwaya ia aasweMd by my claim it la impossible, just like any pabUaher can sat public the majority of tha kits. Kvan the higgest musio flraai hava the amalleat percentage of hits and then there is always tha unknown quan- Uty ia tha aong itaetf. Oa* man's guess ia aa good as the other and. the records wanld then htip ta popularize the songs in aasodation wi^ tha pabUsker. Busineaa Woatd tncroasa "Can any me<diaaical company doubt for a minuta that cvea at an increased royalty rate that its volume of bnsiaaaa par song wouM not increase manifold il sa protected exclusively on the recording T Not •aly would thay aaaa a« recording expenses but they could atiek to one song until ev«rythlac poaslMa is ex> acted from tt. "If the danger of the writer selling direct to the recorder la feared with the subsequent invasion by the um- chanicals into the publiahing busi- ness, what's to prevent the publisher going into the reeerdlnar bnalnesa? Henry Watersoa baa rhready done it wdth the Cameo. The btttillgant songwriter woald prefer tha estab- lifbed eo-operatloa af a pn'oUshar an an equitable baaia. Beeldesb an this win be answered by tha mechanical and publlshinr company to suit their Individual cases. > "Like every radical Idea it may cause consternation for a time but I brieve it will Jend new stimulus to the Industry. RoyaKy Needa Test " To get back to the unconstitu- tionality of the Federal Government fixing a royalty price on the me- chanical reproduction of music. It is well-known the legality of it has never been tested in court. Were I a mechanical man today, little er big, I would ally a publisher or a writer for the' purpose of such a test. If the publishers are not even entitled to that two cents per record I would he saving myself plenty of money as well as the entire record and roll busineaa. "But there is no fear of losing that two cents from the music men's viewpoint. The mechanicals are only too glad to play promptly for If they didn't the music industry would then i>etition for a law to more fully protect them. The mech.-inicals know that. "Also take the word rolls for In- stance. jKhe Q. R. 8. pays two cents royalty iot the mechanical repro- duction of the music but enters into different agreements with the pub- lishers paying from six to 10 cents for the word rights. "What difference is there on a record of a vocal number where the words are also emoloycd?" Biese Renews Contract L.OS An^feles, July 29. Paul Bie.se and his orchestra, who came to So'omon's penny dance hall to be the stellar of three orchestras harbored there for six weeks, has renewed his contract f'r an InJcfl- nite period with a tour-weelt notice of cancellation given eacli party. lUeso lias Just compl.-ted fipiir wccl<3 of his first contract here. Solomon feels tliat he is the es.sen- tial factor in bringing patronage to the re.?ort, so plana to iiccp him lor a prolonged visit. Free Orchestrations The demand for free orchea- trationa by the various rcccrd wholesale agencies is another Item tha music publiaherj are r»bellln» against. The following Is a form sent out by the Victor Co.'s Min- neapolis wholesalers: "Your selection will bo re- leased on Victor record as you of course know. We have a list of 20 dealers in towns ranging from 6,00» to 60,060, who have arrangements made with local orchestras to play the hits at the time the re4:ords are on sale. Nearly all the publishers are now co- operating with us by supply- ing 20 orchestrations which we in turn forwaad to the dealers. "The plan has been very successful thus far and we are quite confident the publishers who have co-operated with us are well pleased with the re- sults. If you would care to supply us with 20 orchestra- Uons of this selection in fox Uot time we will see that tbey are placed in the proper bands to do the moat good. Any co- operation given ua will eer- tauly ba appreciated by the dealers and ourselves." This is the general form sent to the pubUabers and the lat- ter have learned from expcri- ctkca that when (bey reply with a raCaaal a< tha daaaaada tar fraa orchastratteaa aaA^ az- plaln the reason why, these letters keep eamiac nevarthe- leas. Most of them therefore dlarcgard this communication entirely. There are abovt 10 such agencies making requests for trea archeatratlons, their de- .maads ranging from 2( to 7i orchestrations each. Taking M an a very conservative mean, it noeana a gratis distribution of 300 orchestrations per Vic- tor record release to these 10 agencies, not to mentloa tba demands from the other com- paaies. While this letter expresses an evident desire to co-operate, the publishers, as a rule, have already thoroughly combed the country through their own se- lected lists, trade paper pub- licity, etc., and in this manner really helped./ the number towards popularity and a sub- sequent disk recording. Therefore the gratis distri- bution to the lesser bands is in fact unwelcome, for when the number baa evidenced its worth through the fact it has attained a certain aasennt of pnbUc favor, it ia up to tha smaller band leader to pur- chase his orchestrations. The pubHsber knows from experi- ence that when an orcheatra U purchaseil it is then per- formed diligently, where if it ia distributed gratia^ it prob- ably gathers dust in favor of the bought ones; oldhmeris nowpubusher SAXOPHONIST INSURES HANDS Clark Hil^yer, 63, Plug- ging Song He Wrote —^Veteran Alone Clark Hillyer, vaude veteran who ; retired from show business five j years ago at the age of 63, is now I devoting his time to sor.g writing and music publishing. He has formed a company called the Old Timor PubllahinK Co. it U concen- trating an a selling and populariz- ing of the firm's single number, "Kverywhere," for which Hillyer cdntrlbuted the lyrics and mualc. The veteran la handling the aong proposition lone-banded. JLast week be waa around Broadway distribute ing advartlaiiu; Uterature. Including packets of matches and episramio signs plugging his number, which ba successfully tacked on the walls of tha various casting oAcea visited. During his many years in vaude-^ vlUe HUlyer appeared with divera partners and at the time of his re- tirement was doing a aov^jty act with a female partner, the let ka- lac kOMI aa tha BiUyers. Later ba managed tha Liadea, Flatbnah. HeBer Receirer $7,500 In Contract Settlement Lea Angelea, Jaiy S*. Herman 8. Heller is ao laager conductor at tiM Metropolitan where ba has baaa ofHciating for the past U moatha. At the same time Heller, who signed a con- tract AprU 2« last for one year, at a saUry said to be MSO a week, received more than |7,600 'for tha aurrender of bia contract from tha manasaoMpt. When Creatore came lata tha Metropolitan last spring as guest conductor for four weeks, Rellar left on bis vacation. Upon his re- turn he found that Creators bad also been signed up for another year and was atm directing tha orchestra. Ha also waa being fea- tured in the bouse advertMnf. Heller, it is said, though feeling un- comfortable, knew that he had a contract and when the management requested that h« only conduct with the picture instead of the concert, did as he was told. He managed to outgueaa the management, how- ever, as they figured he would «alt, but he stuek on. - Ftaally when Creators had to go away to fuMUl a tour, he was broached by tha management who . wanted t<) know whether ha would surrender kia contract. This ha willingly did for the consideration they gave hln>. William Pryor, who waa assistant conductor, then took over the baton and will surrender it Aug. 9, at which time he leaves for Sydney, Australia, to Don Phill- pini, who will act as guest con- ductor for two weeks. Other guest conductors will follow until the re- turn of Creatore about Sept. llr. But Underwriters Balk at Including Tongue in Accident Policy Rudy Wledoft, eaxophonlst, has Insured bis bafids for $25,000. The insurance company refused a policy on the musician's tongue on the theory his difficult "tonguing" was too great a baaard, and a ques- tion of the subsequent p&ralyais, If any occurred, would be too dirtl- cult to determine, or to what extent it had been intpaired. BANKRUPTCY DBCHAKGED Renjamln A. Rolfe, fi. st cornetist with the : opcz orchestra, was dis- charged from bankruptcy last week In the U. S. District Court. Benson's Strangle-Hold On C<rflege Inn Loosened Chicago, July 29. The Benson organisation, which had a strong hold on the College Inn, having furnished the orchestras there for the paat five years^ has Anally lost out. iBbam Jones always has-been the attraction there for the'fall and winter season and when he woul^ leave for the summer to take bis vaudeville splurge. Benson put in a substitute band. This summer ha placed Frank Westphal in there, but the management became dissatisfied with the many changes made in the personael of t.he orchestra. Husk O'llara has been granted a contract for the summer run at the Inn. Isham Jones will again take the reigns on Labor Day. Jooes' contract with Benson has expired, and It is rumored that on his return to the Inn he will be ia there on bis own hook. THE Century Serenaders CONN CINDERELLA CAFE ^^qh INSTRUMENTS CHICAGO, ILU MANDOLINS