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PRE–1978 DISTRIBUTION OF RECORDINGS CONTAINING MUSICAL COMPOSITIONS; COPYRIGHT TERM EXTENSION; AND COPYRIGHT PER PROGRAM LICENSES
FRIDAY, JUNE 27, 1997
House of Representatives,
Subcommittee on Courts and Intellectual Property,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 1 p.m., Ceremonial Courtroom, U.S. Customs House, Nashville, TN, Hon. Howard Coble (chairman of the subcommittee) presiding.
Present: Representatives Howard Coble, F. James Sensenbrenner, Jr., and William D. Delahunt.
Also present: Representative Bob Clement.
Staff present: Mitch Glazier, chief counsel; Blaine Merritt, counsel; Vince Garlock, counsel; Debra Laman, counsel; Eunice Goldring, staff assistant; Robert Raben, minority counsel; Ed McDonald, administrative assistant and press secretary to charman Coble; Mark Agrast, minority legislative director/counsel; and Elizabeth Assey, legislative assistant to Mr. Clement.
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Mr. COBLE. The Subcommittee on Courts and Intellectual Property will come to order. Before we get into the business at hand, I believe the Tennessee chief executive is here, Governor Sundquist.
Did you have a word or two you wanted to say to these people? Thank you, Governor. Gov. Don Sundquist.
STATEMENT OF DON SUNDQUIST, GOVERNER, STATE OF TENNESSEE
Mr. SUNDQUIST. Mr. Chairman, thank you very much.
Chairman Coble, Chairman Sensenbrenner, when I was in Congress, I couldn't use that description. I am honored to be able to use that. To my former colleague and friend Congressman Clement and Congressman Delahunt, we appreciate you being here today. I welcome you and the committee to Tennessee.
As you know from our service together in the Congress, I have always been strongly protective of intellectual property rights, and I welcome your field hearing here in Nashville because it is an issue of considerable importance to the music industry. Some of my friends in the music industry use the phrase, ''It all begins with a song,'' and in our State indeed it does. In Tennessee the collective entertainment industries contribute $4.6 billion to our economy every year. Our music, TV and film production, and multimedia industries rely heavily on the talents of the creative community that call Tennessee home. In fact, songwriting is a $500 million business in middle Tennessee alone.
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I want to echo the concerns of our creative community that are being shared with you today, and we observed the recent actions of the European Community to extend the period of years for which copyrights apply and the recent U.S. court decision affecting copyrights for songs released prior to 1978, because both have significant impact on American industries that rely on intellectual property. Mr. Chairman, I would respectfully urge the committee and Congress to address these questions, both as a matter of fairness to our country's creative talents, but also as a matter of economic competitiveness.
Entertainment is America's No. 2 export, and globally it is the seventh largest sector of the economy and the fifth fastest growing. Our entertainment industry needs a level playing field where protection of intellectual property rights is concerned, and domestically we need legislation to clarify the recent court rulings which overturned decades of practice and precedent to copyright law.
Mr. Chairman, both Mr. Chairmen, the full committee, Chairman Coble, you and I have long known each other. I have great confidence in your judgment and respect for your convictions on these issues. I very much appreciate the forum you have provided to the music and entertainment industry leaders in Tennessee. I believe your panel is in a position to make important and far-reaching policy decisions regarding the competitiveness of America's entertainment industry.
I do appreciate more than you know the opportunity to drop by and emphasize the importance we in Tennessee place on your deliberations. In fact, we have a logo in Tennessee that says, ''Tennessee sounds good to me,'' and you can interpret that a number of different ways. But all those sounds that sound good to us need to be protected because they are the creative genius of somebody, and that is important to protect and embellish. I look forward to seeing you all tonight and thank you for allowing me to drop by. It is good to see my old friends again. Thank you very much.
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Mr. COBLE. Thank you, Governor. I appreciate your being here.
OPENING STATEMENT OF CHARMAN COBLE
Mr. COBLE. Folks, I want to thank each of you for coming. Obviously your interest is alive and well on this issue, and permit me to visit a bit informally before the hearing starts.
I am Howard Coble from North Carolina. I have Bill Delahunt of Massachusetts to my left, Jim Sensenbrenner from Wisconsin to my right, both members of the subcommittee; and Bob Clement, who represents the Nashville area, to my far left.
Yesterday I was identified in one of the national newspapers as being an avid bluegrass fan. In response to the charge of being an avid country or bluegrass fan, I plead a hearty guilty.
One of my special American heroes is a man I have heard perform at three separate concerts in my home State, and who has been widely honored in your city this week. I refer, of course, to Mr. Guitar, Chester Burton Atkins. I know we all wish him and his family well during this special week.
In the Congress and throughout life, for that matter, people who want to avoid involvement with a particular issue, particularly an issue involving some controversy, will dismiss any question relating to that issue by replying, ''I don't have a dog in that fight.'' And the issue then disappears. In this issue before us today, I have nothing but dogs in the fight, all friendly dogs: restaurants, songwriters, performers, directors, screenwriters, broadcasters, retailers, performing rights societies. I count none of these as my adversaries. If I were blessed with the wisdom of King Solomon, these differences could be summarily resolved, and all would be well. Since I am not so richly blessed, let's try to hammer out the differences.
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Today the subcommittee is conducting a field hearing in Nashville on the effect of the pre-1978 distribution of recordings containing musical compositions, copyright term extension and copyright per program licenses.
Currently, there is widespread support for legislation that would extend the term of copyright protection in all copyrighted works that have not fallen into the public domain by 20 years. This would bring the term of copyright protection from the life of the author plus 50 years to the life of the author plus 70 years, and of works made for hire from 75 to 95 years. The change would bring United States copyright protection up to similar levels of protection provided in the European Union member countries.
In 1995, the European Union, the EU, extended the copyright term for all of its member states from life of the author plus 50 years to life of the author plus 70 years. As the world leader in the export of intellectual property, this has potential serious trade implications for the United States.
The United States and EU nations are all signatories of the Bern Convention, which includes the so-called rule of the shorter term. Under that rule, as many of you know, a member country need only extend protection of a work of foreign authors to the extent that they would be protected in their own country. Therefore, U.S. works will only be granted copyright protection for the shorter life plus 50-year term before falling into the public domain.
The main reasons for this extension of term are fairness and economics. If the United States does not extend to Americans the same copyright protection afforded their counterparts in Europe, Americans will have 20 years less protection than their European counterparts, 20 years during which time Europeans will not be paying Americans for their copyrighted works. EU countries are huge markets for U.S. intellectual property, and the United States would lose millions of dollars in export revenues. Any imbalance would be harmful to the United States and would, therefore, work a hardship on American creators and their families.
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In La Cienega, the ninth circuit interpreted the pre-1978 copyright law to mean something contrary to a long history of rulings in the second circuit and Copyright Office practice, placing the copyright protection of a large number of valuable musical works at risk.
Before 1978, a work was required to include a notice of copyright when published in order to receive protection. Under the law as upheld by the second circuit and as interpreted by the Copyright Office, the distribution of a phonorecord did not constitute a publication of the work contained therein, and, therefore, no notice of copyright on record covers was deemed necessary for the musical work owned by the songwriter.
In La Cienega, the ninth circuit held that recordings are indeed copies of musical compositions, and that unless pre-1978 recordings bear the required copyright notice, they enter the public domain immediately upon their sale to the public. This poses a great inequity, it seems to me, to owners who justifiably relied upon judicial and Copyright Office decisions stating that an unregistered recording of a musical composition before 1978 does not constitute a publication for copyright purposes.
Legislation to restore the law to what it was before the decision of the Ninth Circuit Court of Appeals is urgently needed. This is even more apparent with a recent ruling in a Nashville district court which followed La Cienega. In that case the court held that four musical works, and potentially 38 more at issue in the case, had fallen into the public domain.
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Finally, we will explore the issue of copyright per program licenses. The three performing rights societies, ASCAP, BMI, and SESAC, hold the performance rights to basically all music owned by songwriters that is protected by copyright. Music users must get a license from them in order to publicly perform music or risk being in violation of copyright law. ASCAP and BMI, according to the consent decree under which they operate, must offer a ''per program license'' in addition to ''blanket licenses.'' Many of you are familiar with this.
Today we will explore the question as to whether or not the performing rights societies' licensing practices are in compliance with the consent decrees by offering a meaningful per program license and feasible access to the societies' repertoires.
The issue of music licensing involving restaurants and other public commercial areas of activity will be addressed in more detail at a subsequent hearing scheduled next month in Washington.
I am now pleased to introduce for an opening statement the gentleman from Massachusetts Mr. Delahunt.
Mr. DELAHUNT. Thank you, Mr. Chairman. Let me acknowledge the warm hospitality and particularly the shirt that says, ''Tennessee sounds good to me.'' I want to reassure the Governor and my friend and highly-respected and hardworking colleague Bob Clement that I will enjoy wearing that T-shirt on the beaches of Cape Cod and Martha's Vineyard and Nantucket.
It is a pleasure to be here with Howard Coble, my good friend and my chairman from North Carolina. I seem to have within 6 months progressed from a freshman Democrat to ranking member of this subcommittee. That is because no other Democrat was able to come, unfortunately. So I will certainly do all I can to hold up my end of the discussion. I do look forward to reporting my observations back to our colleagues on the Intellectual Property Subcommittee and the full Committee on the Judiciary.
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Being relatively new to both the subcommittee and the intellectual property world, I want to reassure everyone that I approach these issues with an entirely open mind. Having said that, however, I share the predisposition of many of my colleagues on this subcommittee that one's creative labors are entitled to a fair return, whether the fruits of those labors take a physical form or not.
Mr. Weiss, whom we will hear from shortly, points out in his written statement that enhanced copyright protections have a favorable impact on our balance of trade. A number of witnesses describe how these protections furnish an incentive for creativity. Both arguments seem to me to have validity. But to me it is fundamentally a question of fairness.
The overarching premise of copyright law is that those who enrich our culture with the fruits of their intellect are no less entitled to be compensated than those who create more tangible products, be they skyscrapers or computers or five-star meals. That is ultimately what is at stake in regard to the three questions that we will consider this afternoon: First, whether Congress should provide to U.S. copyright holders the 20 years of additional copyright protection accorded to their counterparts in Europe; second, whether Congress should enact legislation that restores the copyright protection for works composed prior to 1978 that the Ninth Circuit Court of Appeals obliterated in the La Cienega decision; and lastly, whether Congress should prescribe the terms negotiated between the performing rights societies and those who wish to make use of copyrighted music.
In one sense, it is appropriate that we consider these issues today. We can extend the term of copyright protection, yet unless we correct the situation created by La Cienega, thousands of composers will have nothing to extend, and the issue of music licensing has a direct bearing on the extent to which these same composers will derive any benefit from the additional copyright term. On the other hand, I hope very much that we will consider each of these provisions on its merits rather than delaying the length for copyright holders in the effort to resolve all of these questions simultaneously.
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I look forward to hearing from our witnesses and want to congratulate you, Mr. Chairman, on having brought together so much talent and expertise in one room. Thank you very much.
Mr. COBLE. I thank the gentleman.
I am now pleased to recognize the gentleman from Wisconsin, Mr. Jim Sensenbrenner.
Mr. SENSENBRENNER. Thank you very much, Mr. Chairman, and I would like to thank you for holding this field hearing to discuss several important copyright issues currently pending in Congress. Throughout consideration of these issues, we will hear a great deal about upholding the integrity of intellectual property protections. We will be told that some who seek changes to these laws do so purely from a profit motive at the expense of upholding traditional standards of copyright protection. We will also be told by many of the same people that we ought to be flexible enough to alter copyright laws to extend protection because certain properties whose copyrights are due to expire are still generating profits for their owners.
Regardless, I have an open mind about copyright term extension, and I look forward to today's panel on that issue as well as the panel concerning the implications of the ninth circuit decision in La Cienega v. ZZ Top. However, I want to reserve the bulk of my statement to the issue to be discussed in today's third panel, copyright per program licenses, because it is an issue I have been involved with for several years.
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The per program license is a simple concept. Broadcasters who play a very limited amount of licensed music ought to pay less to the music licensing societies than music format stations. Broadcasters who play a large amount of licensed music throughout their broadcast day purchase a blanket license covering all licensed material offered by a society. The overwhelming majority of radio stations fall into this category. Stations playing less or no licensed material ought to pay a licensing fee roughly proportional to the amount of licensed music they broadcast.
It seems to me if you play less licensed music, your license ought to cost less, not a terribly difficult notion. However, in the eyes of ASCAP and BMI, this simple issue of fairness has been elevated to the level of abstraction in order to obfuscate their obligations under the law and to increase their bottom line. The judicial consent decree under which the licensing societies operate requires that an affordable and viable alternative to the blanket license be made available. Its availability is at best illusory because of the disingenuous manner in which the licensing societies have structured their payment schemes. Under the existing system, broadcasters are often forced into purchasing the blanket license from both the principal societies, ASCAP and BMI. This blanket license covers all the material in the society's repertoire, despite the fact that specialty broadcasters in most cases play minuscule amounts of licensed material, much of which is incidental because it is included in advertisements, jingles and the like.
Defenders of the current system will claim a per program license is available and less costly than the blanket license. A license requiring a station playing less than 2 percent licensed material to pay nearly 25 percent of what a station that plays continuous licensed music 24 hours a day does not, in my view, constitute a viable and affordable alternative. Religious and other nonmusic format broadcasters have been fighting this battle in the courts for the better part of two decades.
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Right now I am waiting for a response from the Department of Justice concerning its efforts to enforce the terms of the consent decree. Meanwhile, I have come to the conclusion that it is absolutely essential for the Congress to clarify the antitrust decree to ensure that the monopolist licensing societies abide by its terms as a matter of law. Religious and specialty broadcasters recognize their obligation to pay for licensed music and will still pay for performances of licensed material whether that material is of a religious nature or not. However, this payment ought to reflect the amount of licensed material included in a broadcast.
ASCAP and BMI have flagrantly abused their monopoly power to avoid living up to their legal obligation to provide a viable and affordable alternative to the blanket license. This has been affirmed in the courts when television broadcasters challenged the societies. Now we are in the midst of a conceivably endless season of litigation so religious and specialty radio broadcasters might be treated fairly as well. These broadcasters, most of them small operations, do not have the resources to fight the licensing monopolies in endless litigation at the New York rate court.
Finally, as the licensing societies' coffers expand, religious broadcasters pay fees in excess of what they owe. I fear a portion of the licensing fees extracted from religious broadcast stations may surreptitiously end up in the royalty checks of such morally objectionable artists as Snoop Doggy Dog and Marilyn Manson. Religious broadcasters should in no way be forced to contribute to the fortunes of performers who mock religious values or who perform obscene and often blasphemous works. Last year ASCAP took action to protect religious broadcasters from contributing to such performers. I am unconvinced whether this action is legitimate or merely a shell game to escape the political heat.
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Congress enacted copyright laws, and Congress has the obligation to act when these laws are so lacking in clarity that abuses such as those I have just discussed take place. Until Congress acts accordingly, licensing societies will continue to get the mine, while religious and specialty broadcasters get the shaft. Please forgive me for quoting an old country and western hit, and I will be glad to pay any royalty that is due.
I would like again to thank Mr. Coble for holding this hearing and look forward to the subcommittee's continued involvement in the critical area of copyright law reform.
Mr. COBLE. I thank the gentleman.
[The prepared statement of Mr. Sensenbrewner follows:]
PREPARED STATEMENT OF HON. F. JAMES SENSENBRENNER, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN
Let me thank Chairman Coble for holding this field hearing to discuss several important copyright issues currently before Congress.
Thoughout consideration of these issues we will hear a great deal about upholding the integrity of intellectual property protections. We will be told that some who seek changes to these laws do so purely out of profit motive at the expense of upholding traditional standards of copyright protection. We will also be told, by many of the same people, that we ought to be flexible enough to alter copyright laws to extend protections because certain properties whose copyrights are due to expire are still generating profits for their owners. Regardless, I have an open mind about copyright term extension and look forward to today's panel on that issue as well as the panel concerning the implications of the Ninth Circuit decision in La Cienega v. ZZ Top.
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However, I will reserve the bulk of my statement to the issue to be discussed in today's second panel, copyright per program licenses, because it is an I have been involved with for several years.
The per program period license is a simple concept. Broadcasters that play a very limited amount of licensed music ought to pay less to the music licensing societies than music format stations. broadcasters that play a large amount of licensed music throughout their broadcast day purchase a blanket license covering all licensed material offered by a society. The overwhelming majority of radio stations fall into this category. Stations playing less, or no licensed material, ought to pay a licensing fee roughly proportional to the amount of licensed music they broadcast. If you play less licensed music, your license ought to cost less—not a terribly difficult notion. However, in the eyes of ASCAP and BMI, this simple issue of fairness has been elevated to the level of abstraction in order to obfuscate their obligations under the law—and increase their bottom line.
The judicial consent decree under which the licensing societies operate requires that an affordable and viable alternative to the blanket license be made available. Its availability is at best illusory because of the disingenuous manner in which the licensing societies have structured their payment schemes. Under the existing system, broadcasters are forced into purchasing the blanket license from both of the principal societies, ASCAP and BMI. The blanket license covers all material in the societies' repertoire despite the fact that specialty broadcasters in most cases play minuscule amounts of licensed material, much of which is incidental because it is included in advertisements, jingles and the like. Defenders of the current system will claim a per program license is available and less costly than the blanket license. A license that requires a station playing less than two percent licensed material to pay nearly 25% what a station that plays continuous licensed music twenty-four hours a day does not, in my view, constitute a viable and affordable alternative.
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Religious and other non-music format broadcasters have been fighting this battle in the courts for the better part of two decades, spending millions of dollars. I am right now waiting for a response from the Department of Justice concerning its efforts to enforce the terms of the consent decree. Meanwhile, I have come to the conclusion that it is absolutely essential for Congress to clarify the antitrust decree to ensure that the monopolist licensing societies abide by its terms as a matter of law. the days of the ASCAP–BMI unregulated monopoly are coming to a close.
The licensing societies' recruitment of religious songwriters as stalking horses against my bill certainly cannot relate to the per programming period provisions of the Fairness in Music Licensing Act. Religious and specialty broadcasters recognize their obligation to pay for licensed music and will still pay for performances of licensed material whether that material is of a religious nature or not. However, this payment ought to reflect the amount of licensed material included in a broadcast. ASCAP and BMI have flagrantly abused their monopoly power to avoid living up to their legal obligation to provide a viable and affordable alternative to the blanket license. This has been affirmed in the courts when television broadcasters challenged the societies. Now we are in the midst of a conceivably endless season of litigation so religious and specialty radio broadcasters might be treated fairly as well. These broadcasters, most of them small operations, do not have the resources to fight the licensing monopolies in endless litigation at the New York Rate Court.
Finally, as the licensing societies' coffers expand, religious broadcasters pay fees in excess of what they owe. I fear a portion of the licensing fees extracted from religious broadcast stations may surreptitiously end up in the royalty checks of such morally objectionable artists as Snoop Doggy Dogg and Marilyn Manson. Religious broadcasters should in no way be forced to contribute to the fortunes of performers who mock religious values and perform obscene, often blasphemous works. Last year ASCAP took action to protect religious broadcasters from contributing to such performers. I am unconvinced whether this action is legitimate or merely a shell game to escape political heat.
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Congress enacted the copyright laws and Congress has the obligation to act when these laws are so lacking in clarity that abuses such as those I have just discussed take place. Until Congress acts accordingly, licensing societies will continue to get the mine, while religious and specialty broadcasters get the shaft. Please forgive me for quoting an old country music hit. If necessary, I will gladly pay any royalty due.
I would again like to thank the Chairman for holding this hearing and look forward to the subcommittee's continued involvement in the critical area of copyright law.
Mr. COBLE. Now I am pleased to recognize your Congressman.
Bob, do you share Nashville with another Congressman?
Mr. CLEMENT. I have got all of Nashville.
Mr. COBLE. You all are stuck with this gentleman, then. I say that in jest. Congressman Clement from Nashville.
STATEMENT OF HON. BOB CLEMENT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENESSEE
Mr. CLEMENT. Thank you, Chairman Coble. It is great to have you and Congressman Sensenbrenner and Congressman Delahunt here from the Subcommittee on Courts and Intellectual Property. I am very pleased that you are having this field congressional hearing.
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I might say to Chairman Coble, he is a big fan of our kind of music. I will never forget several years ago having a special reception for Roy Acuff at the U.S. Capitol, and the first one there was, Chairman Howard Coble from North Carolina. And so the three of us had our picture made together, Roy Acuff, Howard Coble, and myself, and we both have it in our offices at the U.S. Capitol.
From the hallowed halls of the Ryman Auditorium to 16th Avenue, music has made Nashville a world famous destination. Country music embodies the spirit of the American people and the genuine feelings individuals experience throughout life. It is an integral part of our American musical heritage, and its popularity continues to grow. Nashville is proud to be the home of country music, and we are proud to celebrate other musical forms, too, from rock, to pop, to gospel.
Today the committee will be hearing testimony on copyright term extensions, copyright per program licenses, and the effect of pre-1978 distribution of recordings containing musical compositions. All of these issues directly impact the music industry. While I was disappointed to learn that the most contentious matter, the so-called Fairness in Music Licensing Act, would not be discussed today, I look forward to the opportunity to address this issue.
I want to especially thank the songwriters, the publishers and music industry professionals in attendance today for showing their support for the rights of music creators.
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Elvis Presley once said, ''I learned early in life that without a song, the day would never end. Without a song, a man ain't got a friend. Without a song, the road would never bend. So I'll keep singing the song.''
Thank you, Mr. Chairman.
Mr. COBLE. The meeting will come to order. I thank you, Mr. Clement.
[The prepared statement of Mr. Clement follows:]
PREPARED STATEMENT OF HON. BOB CLEMENT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE
I would like to take this opportunity to welcome you to Music City, U.S.A. I am pleased that Chairman Coble and the Judiciary Subcommittee on Courts and Intellectual Property recognize the incredible significance of copyright protection.
From the hallowed halls of the Ryman Auditorium to 16th Avenue, music has made Nashville a world-famous destination.
Country music embodies the spirit of American people and the genuine feelings individuals experience throughout life. It is an integral part of our American musical heritage and its popularity continues to grow.
Nashville is proud to be the home of country music, and we are proud to celebrate other musical forms too, from rock to pop to Gospel.
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Today the committee will be hearing testimony on copyright term extensions, copyright per program licenses, and the effect of pre-1978 distribution of recordings containing musical compositions. all of these issues directly impact the music industry.
While I was disappointed to learn that the most contentious matter—the so-called ''Fairness in Music Licensing act''—would not be discussed today, I look forward to the opportunity to address this issue.
I want to especially thank the songwriters, publishers and music industry professionals in attendance today for showing their support for the rights of music creators.
Elvis Presley once said: ''I learned early in life that without a song the day would never end; without a song a man ain't got a friend; without a song, the road would never bend. So, I'll keep singing the song.''
Mr. COBLE. I was not going to quote songs, but since Bob and Jim both did, let me do this.
Mr. Williams, believe it or not, you and Mr. Murphy are going to get recognized. Some years ago, Tom T. Hall, the popular balladeer, the popular country storyteller, wrote a song entitled ''The Ballad of $40.'' He recorded it, the Osborn brothers recorded it, Sonny and Bob, and others as well. For the benefit of the uninformed, the lyrics portray a scene at a cemetery where a funeral service is about to commence. An old boy, in the classic sense of the rural South, is observing nearby, and this old boy then directs his attention to a car in the funeral procession and remarks: That must be the widow in the car, and would you take a look at that? My, what a pretty dress. You know, some women do look good in black. He ain't even in the ground, and they tell me that his truck is up for sale. They say she took it pretty hard, but you can't tell too much behind a veil.
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Now, folks, we are not in Nashville today armed with veils. This is not an exercise in deception. We are here to listen, to learn, and hopefully help resolve these very significant issues.
I am pleased to introduce the first panel. Mr. Ed Murphy, who is the president and chief executive officer of the National Music Publishers' Association, Inc. NMPA is a trade association representing more than 600 American music publishers. Mr. Murphy joined NMPA as executive vice president in September 1983; was elected president of the Harry Fox Agency, Inc., in 1984; and president and CEO of NMPA and HFA in 1985.
Our second witness on panel one is Paul Williams, who is a songwriter, testifying on behalf of the American Society of Composers, Authors and Publishers, and the National Music Publishers' Association. Mr. Williams, perhaps many of you know this, has written some of the classic songs of our time. They include such standards as ''We Have Only Just Begun,'' ''Just an Old-Fashioned Love Song,'' ''Rainy Days and Mondays,'' and ''I Won't Last a Day Without You.'' His awards in the music arena range from Golden Globes to Grammies and Academy Awards.
We are pleased to have each of you here. But, gentleman, I want to ask you a favor if it is not imposing too severely. We have two more panels to appear, and we have two events to attend after we hear all the testimony. We live by the 5-minute rule in Washington. Your entire statements will be made a part of the record and will be read in its entirety. But if you all could keep your oral testimony to on or about 5 minutes, it will be of great help.
I will also ask the members of the panel up here to confine our questions to 5 minute. If you violate the 5-minute rule, you won't be keel-hauled, but I will at least let you know when 5 minutes has expired.
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So, Mr. Williams, you or Mr. Murphy, either way it goes.
STATEMENT OF PAUL WILLIAMS, SONGWRITER, ON BEHALF OF AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, AND THE NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC.
Mr. WILLIAMS. Thank you, Mr. Chairman.
Good afternoon, Mr. Chairman and members of the subcommittee. I will be brief. I have been brief since birth.
Mr. Chairman, members of the subcommittee, Governor, honored guests, fellow songwriters and music publishers, I thank you. My name is Paul Williams. I want to thank you for the opportunity to appear before you today. I especially wish to thank Chairman Coble, which rhymes with noble, any songwriter will tell you, for his kindness.
Mr. COBLE. If you want to write a song to that effect, you have my permission.
Mr. WILLIAMS. Beyond that, Mr. Chairman, I will give you half rights, if you will just give me an extra 6 minutes.
Mr. Chairman, I am an actor. I do speak in public regularly. I am here today as a songwriter and as a music publisher. I am privileged to address you on behalf of the National Music Publishers' Association, the NMPA, and its licensing subsidiary, the Harry Fox Agency.
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I can assure you that the three issues before the subcommittee today are of enormous concern to all songwriters and music publishers. I have been asked to focus on one of these issues, only one, which both touches and troubles me deeply, and that is the threat of loss of copyright in songs released on records before 1978. We call that the La Cienega problem.
My home in Los Angeles, incidentally, has a view of La Cienega Boulevard. It is smack in the middle of my view. I can see all the way from downtown Los Angeles to the ocean. It is a gorgeous view. Lately every time I take in that view, it sends a chill up my spine because in the center of it is La Cienega Boulevard. I become frightened not because of the breathtaking beauty of the site, but because it is a painful reminder that much of the creative work I have produced during my career and the work of tens of thousands of other talented colleagues is at risk, suddenly at risk. I was an active songwriter before 1978, and some of the songs I wrote during those years are among my most popular. So I find myself squarely in the cross hairs of the La Cienega decision. The income I earn from my music, my livelihood, is threatened.
As Ed Murphy will explain, the ninth circuit decision in La Cienega Music v. ZZ Top changed the rules of the copyright game for writers and music publishers. Without warning, songs that came from our minds and our hearts, and our hard labor, songs we believed were ours and our families' for the duration of their copyrights, stand to lose their copyright protection. That kind of loss can ruin families.
As I understand it, the copyright law passed by Congress in 1909 required creators and copyright owners to jump through a certain number of technical hoops in order to receive and maintain their copyright protection. Among these hoops was the requirement that, quote, ''copies,'' unquote, of works include a form of copyright notice, the word ''copyright'' or a copyright symbol—that wonderful little C with the circle around it—the word ''copyright'' or copyright symbol; the name of the copyright owner; and, for published works, the year of first publication. If copies were sold without the notice, the ax fell. The work entered the public domain and was no longer the property of its creator.
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For decades, the music industry complied with the law by making sure that visually perceptible copies of music, and that is, of course, sheet music, had a proper copyright notice. That is what authorities in the business, the Federal Court of Appeals for the Second Circuit and the U.S. Copyright Office, all believed the law required. And we all did this. Recordings of music from which the song could be heard but not seen usually did not include a copyright notice for the music. Again, the authorities agreed that notice was not required on recordings. In fact, the U.S. Copyright Office would not even accept a recording as a deposit copy of a published song. I bet there are a bunch of the songwriters here who tried to send tapes in to copyright something when we were new to this. It was sent back to us and told, no, you can't do that.
Unbelievably, nearly 90 years after the 1909 Copyright Act went into effect and nearly 20 years after it was replaced by a vastly rewritten copyright regime, the Ninth Circuit Court of Appeals decided that our industry, other Federal courts, and the Copyright Office had it wrong all along. We should have, since the beginning, treated all recordings as copies. And because we should have known what we could not possibly have known, we face loss of our copyrights and our incomes. It makes me cry. It just terrifies me to think about it.
Mr. Chairman and members of the subcommittee, this decision represents a gross injustice. It hurts people who created music that is loved by Americans and an eager public around the world. We have done nothing wrong. We have done nothing wrong as it relates to this issue. We simply complied with the law as we and others, including the U.S. Government, understood it. And for this we are being told that our works can be deprived of protection.
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The injustice is compounded because there is simply nothing we can do to change the harsh outcome under La Cienega. The ninth circuit decision expressed the view that a musical work entered the public domain when a recording without copyright notice was sold to the public. I cannot, for example, turn back the clock to 1976 and force those who recorded my song ''Evergreen'' to reissue the recordings with a copyright notice. No lyricist or composer can go back and make things right. Not even Barbra Streisand, my talented cowriter on ''Evergreen,'' has the capacity to do that kind of time travel. We can't do it.
It hurts, too, that the loss of copyright threatens only American songwriters. This is amazing to me. In 1988, Congress passed a law that restores copyright in foreign works from most countries in cases where those works have fallen into the public domain in the United States because of running afoul of the technical requirements of the old copyright law.
It is to me absolute proof that we are the good guys—excuse me, you are the good guys; back to the days of Jimmy Stewart and ''Mr. Smith Goes to Washington,'' if there is something wrong, we are going to take care of it for you. That is what this is telling me. The interesting thing is that if I were a South Korean songwriter or if I were a songwriter from Scotland, there would be no issue here. You have justifiably already taken care of those songwriters. Now all we are asking is that you take care of us as well.
I am forced to ask you, then, the questions that trouble me. What purpose is served by punishing innocent American songwriters? What goal is served by retroactively depriving individuals of their property? Our copyright law today no longer requires copyright notice. I take this as a demonstration that Congress no longer believes that the draconian penalty of forfeiture—that is good enough to be read twice—the draconian penalty of forfeiture of copyright for failure to comply with rigid notice requirements is a good idea.
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I wish I could convey to you how personal this threat of loss is. Real people are facing havoc in their lives and hardship for their families. In a way it is like getting a foreclosure notice on your house when you have made absolutely every mortgage payment on time.
I am a member of ASCAP, yes. I am also a very proud member of the National Songwriters' Association International, and the National Academy of Songwriters. For the record, I would like to say that outside this small courtroom, the halls are overflowing with songwriters who care about this issue. They are here to be heard. I am really honored to be able to speak for them. I am joined by many in this room and outside for whom songwriting is our life's work. That is to say, it is our life, but it is also our work. The royalties we earn on songs we have written pay our bills, put our kids through school, enable us to plan for retirement. Without our copyrights we will be economically devastated.
We urgently need your help. All three of the issues desperately need your attention today. La Cienega, copyright term extension, and music licensing affect songwriters deeply. Each has an impact on our livelihoods, and we care about every one, but the La Cienega decision must be fixed and fixed soon.
The major music markets of Europe have recently moved to extend the term of copyright protection to the life of the author plus 70 years. American music enjoys enormous popularity abroad, but we will not be given the benefit of the longer term unless the United States adopts life plus 70 protection as well.
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The assault on music creators embodied in H.R. 789 must be deflected. There is nothing fair about denying songwriters payment for the use of their property by restaurants and other commercial businesses. These are issues that other people are going to deal with. I am here to speak with you specifically about La Cienega.
In closing I would like to thank Chairman Coble and Mr. Bono for their leadership in sponsoring bills to correct the La Cienega decision. Songwriters and music publishers desperately need your support to pass the La Cienega correction. Prompt legislative action is absolutely necessary to restore the integrity of our property rights.
Two songs that I have written come to mind right now. Elvis was in the room earlier. Elvis is still in the room. His presence is everywhere we go in this wonderful State. In the late 1960's, early 1970's I wrote a song called ''Where Do I Go From Here,'' that Elvis recorded. I have got to tell you, to be able to walk around and see that little name Paul Williams underneath that big name Elvis Presley was one of the most wonderful, proud moments of my life. Now I have to ask the question, where do I go from here? There is nothing else I can do. I offer this now to you. Truly the lyrics ''I Won't Last A Day Without You'' must apply to you right now in the process that I am trusting is going to save us. We need your help. I really thank you for listening to me today.
Mr. COBLE. Thank you, Mr. Williams.
[The prepared statement of Mr. Williams follows:]
PREPARED STATEMENT OF PAUL WILLIAMS, SONGWRITER, ON BEHALF OF AMERICAN SOCIETY OF COMPOSERS, AND THE NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC.
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Good afternoon, Mr. Chairman and members of the Subcommittee. My name is Paul Williams. I thank you for the opportunity to appear before you, and I especially wish to thank Chairman Coble for his kind introduction.
I am an actor, and I do quite a bit of public speaking, but I am here today as a songwriter and a music publisher. I am privileged to address you on behalf of the National Music Publishers Association, Inc. (''NMPA'') and its licensing subsidiary, The Harry Fox Agency, Inc. I can assure you that the three issues before the Subcommittee today are of enormous concern to all songwriters and music publishers.
I've been asked to focus on one of these issues, which both touches and troubles me deeply, the threat of loss of copyright in songs released on records before 1978. We call it the La Cienega problem.
My home has a view of La Cienega Boulevard, which is a major thoroughfare in Los Angeles. Lately, every time I take in that view, it sends a chill up my spine. Not because the sight is breathtaking, but because it is a painful reminder that much of the creative work I've produced during my career, and the work of tens of thousands of talented colleagues, is at risk.
I was an active songwriter before 1978, and some of the songs I wrote during those years are among my most popular. So I find myself squarely in the cross hairs of the La Cienega decision. The income I earn from my music, my livelihood, is threatened.
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As Ed Murphy explained, the Ninth Circuit decision in La Cienega Music Co. v. ZZ Top changed the rules of the copyright game for writers and music publishers. Without warning, songs that came from our minds and our hearts—songs that we believed were ours and our families for the duration of their copyrights—stand to lose their copyright protection. That kind of loss can ruin families.
As I understand it, the copyright law passed by Congress in 1909 required creators and copyright owners to jump through a lot of technical hoops in order to receive and maintain copyright protection. Among these hoops was the requirement that ''copies'' of works include a form of copyright notice—the word copyright or a copyright symbol; the name of the copyright owner; and, for published works, the year of first publication. If copies were sold without the notice, the ax fell. The work entered the public domain and was no longer the property of its creator.
For decades, the music industry complied with the law by making sure that visually perceptible copies of music—that is, sheet music—had a proper copyright notice. That is what authorities in the business, the Federal Court of Appeals for the Second Circuit, and the U.S. Copyright Office all believed the law required. Recordings of music, from which the song could be heard, but not ''seen,'' usually did not include a copyright notice for the music. Again, the authorities agreed that notice was not required on recordings. In fact, the U.S. Copyright Office would not even accept a recording as a deposit copy of a published song.
Unbelievably, nearly 90 years after the 1909 Copyright Act went into effect, and nearly 20 years after it was replaced by a vastly rewritten copyright regime, the Ninth Circuit Court of Appeals decided that our industry, other Federal courts, and the Copyright Office had it wrong all along. We should have—since the beginning—treated all recordings as copies. And because we should have known what we could not know, we face loss of our copyrights and our incomes.
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Mr. Chairman and members of the Subcommittee, this decision represents a gross injustice. It hurts people who created music that is loved by Americans and an eager public around the world. We have done nothing wrong. We simply complied with the law as we—and others, including the U.S. government—understood it. And for this, we are being told that our works can be deprived of protection.
The injustice is compounded because there is simply nothing we can do to change the harsh outcome under La Cienega. The Ninth Circuit decision expressed the view that a musical work entered the public domain when a recording without copyright notice was sold to the public. I can't, for example, turn back the clock to 1976 and force those who recorded my song ''Evergreen'' to reissue the recordings with a copyright notice. No lyricist or composer can go back and make things right.
It hurts, too, that the loss of copyright threatens only American songwriters. In 1988 Congress passed a law that restores copyright in foreign works from most countries in cases where those works have fallen into the public domain in the U.S. because of running afoul of the technical requirements of the old copyright law.
I am forced to ask you, then, the questions that trouble me. What purpose is served by punishing innocent American songwriters? What goal is served by retroactively depriving individuals of their property? Our copyright law today no longer requires copyright notice. I take this as a demonstration that Congress no longer believes that the draconian penalty of forfeiture of copyright for failure to comply with rigid notice requirements is a good idea.
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Our nation benefits—even thrives—from protecting copyright. The International Intellectual Property Alliance, of which NMPA is a part, reports that copyright-based businesses in 1994 contributed 3.78 percent of the Gross Domestic Product and $53.25 billion in foreign sales and exports. NMPA estimates that pre-1978 music generates $1.2 billion in publisher revenues. What sense does it make to sacrifice our portion of these positive contributions, when there is no countervailing social benefit to be gained?
There is no credible ''other side'' of the La Cienega issue. You will not be visited in your offices by a coalition of record pirates and other potential defendants in copyright infringement lawsuits. But if you are looking for potential beneficiaries of the confusion generated by the La Cienega decision, they are unauthorized users of music. We know that there are some folks out there who would move in to exploit pre-1978 music, refuse to pay for its use, and then challenge the copyright owner to take them to court, where they will argue that the song they expropriated is in the public domain.
Today, writers of music and their publishers are afraid to go to court. Because the risk of pursuing a bad guy—an infringer—is the risk of having a court find that your work is no longer yours.
I wish I could convey to you how personal this threat of loss is. Real people are facing havoc in their lives and hardship for their families. In a way, it's like getting a foreclosure notice on your house when you've made absolutely every mortgage payment on time. But it's not like losing just any house. Because you designed it, built it and in every way made it what it is.
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I am a member of ASCAP. I am joined by many in this room for whom songwriting is our life's work. That is to say, it is our life, but it is also our work. The royalties we earn on songs we've written pay our bills. Put our kids through school. Enable us to plan for retirement. Without our copyrights, we will be economically devastated. We urgently need your help.
All three of the issues before the Subcommittee today—the La Cienega decision, copyright term extension and music licensing—affect songwriters deeply. Each has an impact on our livelihoods, and we care about every one. But the La Cienega decision must be fixed, and fixed soon.
The major music markets of Europe have recently moved to extend the term of copyright protection to the life of the author plus 70 years. American music enjoys enormous popularity abroad, but we will not be given the benefit of the longer term unless the U.S adopts life-plus-70 protection, too. But it is painful to remember that, so long as the La Cienega cloud remains over music copyrights, songwriters will not enjoy the benefits of term extension. You can't add 20 years to a copyright that arguably doesn't exist.
And the assault on music creators embodied in H.R. 789 must be deflected. There is nothing ''fair'' about denying songwriters payment for the use of their property by restaurants and other commercial businesses. But again, we must make crystal clear as a matter of law that pre-1978 music remains the property of its writers and publishers.
In closing, I'd like to thank Chairman Coble and Mr. Bono for their leadership in sponsoring bills to correct the La Cienega decision. Songwriters and music publishers desperately need your support. Prompt legislative action is absolutely necessary to restore the integrity of our property rights.
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Please, help us now.
Mr. COBLE. Mr. Murphy.
Folks, I agree that that was a good testimony, but I would ask you to hold your applause. We are on a short leash today, and time is very important. I would appreciate it if you could withhold the applause until the end of the hearing.
Mr. Murphy.
STATEMENT OF EDWARD P. MURPHY, PRESIDENT AND CEO, NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC.
Mr. MURPHY. Thank you, Mr. Chairman and members of the subcommittee. In an effort to save some time, and I think since Mr. Williams eloquently put forth our position in many different ways, I would just like to reemphasize in a few minor points and cut my testimony down in deference to everyone else that has to speak.
I think you understand, Mr. Coble, and the committee understands the seriousness of the problem that we face on the La Cienega issue and what we all believe to be the way to proceed. I think just to dramatize the issue we might compare it to a problem with real estate, when all of a sudden you wake up to find that your real estate is gone through no fault of your own and how many people are affected and would be affected by such a disaster.
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But I think it is important to put the dollars into perspective here. We are talking about an industry that globally collects about $6 billion a year. That is the total money that publishers and songwriters collect on a worldwide basis. The pre-1978 works that we are talking about are in jeopardy. We have calculated the potential loss from La Ceinega at $1.2 billion annually. That is the amount of money that will be displaced each year for the next 25 years, on average, based upon the length of copyright protection allotted for pre-1978 works. That is a tremendous sum of money, I think we can agree on.
It is unbelievable what it would do to songwriters and their families, what it would do to this Nation, what it would do to the balance of trade, and certainly what it would do in our representations to the world that we care about intellectual property. It would seem to be the most grievous harm that we could do not only financially, but to our image on a worldwide basis.
Congress has done so much good for us in the past in helping to protect American music. Forty percent of the music heard on this planet today is American music. It is people like Mr. Paul Williams and many thousands of American writers who would be affected negatively by this if we don't correct the problem and correct it now.
I appreciate the Chairman Mr. Coble and Mr. Sonny Bono for presenting the bill. We honor and respect what you have done for us. We ask the rest of the subcommittee to please help us on this issue. It is something that has to be done now. I hope it can be dealt with separately and not as a part of any other bills that are moving through Congress, because this is such a dire problem. It is not a debate about rates. It is not a debate about extending benefits or taking away benefits. This would entirely remove all income. Essentially part of the entertainment industry could collapse, and it would truly collapse. The Register of Copyrights, as you know, has written to you about this. The U.S. Copyright Office supports the La Cienega fix. I think most everybody would like this corrected. I am speaking to the converted in many ways.
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I will cut it here. We do support, obviously, the other measures that are before you and the other bills that are before you, and we will do everything in our power to help move the term extension bill through, and we hope that this debate that is going on now on the fairness in licensing bill can lead to a satisfactory conclusion. But I think the La Cienega issue should be dealt with on a separate basis and done speedily as possible, or we are all really into major problems. Pirates are already taking advantage of this problem. We have not come forward publicly, and we will if necessary, but the pirates are the ones that are taking advantage of the loopholes that have been created by La Cienega. We need your help, and we need it now.
Thank you, Mr. Chairman.
Mr. COBLE. Thank you.
[The prepared statement of Mr. Murphy follows:]
PREPARED STATEMENT OF EDWARD P. MURPHY, PRESIDENT AND CEO, NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC.
Thank you, Mr. Chairman and members of the Subcommittee. My name is Edward P. Murphy. I serve as President and Chief Executive Officer of the National Music Publishers Association, Inc. (''NMPA'').
NMPA appreciates this opportunity to present its views on a legislative issue of vital concern to songwriters and music publishers: the invitation to music piracy presented by the Ninth Circuit's decision in La Cienega Music Co. v. ZZ Top. 1 The La Cienega problem is currently addressed in two bills pending before the Subcommittee, H.R. 1967, introduced on June 19 by Chairman Coble, and H.R. 1621, sponsored by Mr. Bono. My statement also briefly addresses the issues of copyright term extension and the impact of proposals to limit or eliminate the responsibility of certain commercial users of music to pay public performance fees.
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NMPA AND ITS MEMBERS
NMPA is a trade association representing more than 600 U.S. music publishers—businesses that own and administer copyrights in musical compositions. The Harry Fox Agency, Inc. (''HFA''), an NMPA subsidiary, serves as licensing agent for more than 17,000 music publishers in connection with the use of music in the United States in records, tapes, CDs and online delivery. HFA also licenses music on a worldwide basis for use in multimedia productions, films, commercials, television programs, and all other types of audio-visual applications.
Music publishers, generally speaking, are holders of copyright in musical works. They play a key role in making American music available to the public in the United States and around the world. Some music publishers are subsidiaries of large entertainment companies. Thousands more, however, are small and medium-sized businesses. In fact, it is increasingly common for established songwriters to serve as their own publishers, and to set up businesses for that purpose.
The music business has major hubs here in Nashville, in Los Angeles and in New York. But you can find active music publishing enterprises—and successful as well as aspiring songwriters—in Miami, Detroit, Atlanta, Austin, Chicago, San Antonio, and hundreds of other places—big and small—across the country.
LA CIENEGA MUSIC CO. V. ZZ TOP THREATENS COPYRIGHT PROTECTION FOR PRE-1978 AMERICAN MUSIC
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I am here today to explain why the business of our nation's music publishers and the life's work and livelihoods of the tens of thousands of songwriters they represent are at risk as never before.
What is the problem? Imagine for a moment that title to all of the real estate on Music Row here in Nashville is suddenly seized, without any compensation to the landowners. Imagine, too, the disruptions and hardship an action of that magnitude would cause for the businesses located there, for the people who would be sure to lose their jobs and their incomes, and for their families. And think of the ripple effect that would be felt across the community those businesses serve. Now imagine that disastrous impact multiplied a hundred times over, hitting innocent individuals and businesses across the country.
On January 10, 1995, the U.S. Court of Appeals for the Ninth Circuit, in a case called La Cienega Music Co. v. ZZ Top, leveled a blow that powerful at the music industry, and we re still reeling. The La Cienega decision is at odds with industry practice. It rejects long-established interpretations of the 1909 Copyright Act. And it ignores the views and registration practices of the U.S. Copyright Office. Nonetheless, it is the law in the Ninth Circuit, and a Federal District Court here in the Sixth Circuit recently embraced it.2
For as long as La Cienega and decisions following it are allowed to stand, the very existence of copyright protection for American music produced before 1978 is in jeopardy. And more than one billion dollars each year in music publisher revenues is at stake. Today, American writers and music publishers are facing loss of their copyrights for having done nothing more than comply with the law as it was understood at the time.
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How could this happen? The answer lies in understanding the ''formalities,'' or technical requirements necessary to secure and maintain copyright protection that characterized the U.S. system under the Copyright Act of 1909, and the use of the terms ''copy'' and ''publication'' as they were applied under the old law.
WRITERS AND PUBLISHERS ARE BEING SEVERELY PENALIZED BY NEW INTERPRETATIONS OF AN OLD LAW
Under the 1909 Copyright Act, Federal copyright protection would be lost forever, and a work would fall into the public domain, if ''copies'' of the work were sold or offered to the public without copyright notice in the required form.3 Given the state of technology in 1909, the term ''copy'' was understood to mean a visually perceptible copy. For musical compositions, that meant sheet music, which enjoyed enormous popularity at the time.
Music industry practice developed in accordance with the law. Copies of musical works—sheet music—were marked with copyright notice in the form required by the 1909 Act. Recordings typically bore no copyright notice for the music included on them, because it was accepted and understood that recordings did not have the status of copies. The industry followed this practice for 80 years.
In January 1995, the Ninth Circuit changed the law. It decided that selling recordings of musical compositions constituted ''publication'' of the recorded music under the 1909 Act. The real threat to our industry comes, however, because the court also said that recordings were ''copies'' under the 1909 Act and that, unless the recordings included copyright notice in the required form, the musical compositions lost copyright protection immediately upon the sale of the recordings to the public.
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Our good faith understanding of the law, shared by the courts and the Copyright Office, was that recordings were not copies of musical compositions and that, therefore, they did not need to include copyright notice in order to preserve copyright protection for the work. In practice, recordings rarely bore copyright notice for the composition. As a result, La Cienega has the potential to punish the writer and publisher of virtually every song that was recorded in America before 1978.
And it must be remembered that neither the songwriter nor his or her publisher could dictate that copyright notice appear on recordings. Most recordings of music were (and still are) made and distributed pursuant to the compulsory mechanical license provisions of the copyright law. Neither the 1909 Copyright Act itself, nor related Copyright Office regulations, required recording companies to include copyright notice for musical works on recordings distributed to the public.
In a recent letter to Chairman Coble, our respected Register of Copyrights, Marybeth Peters, stated the nature of the La Cienega problem clearly. She said:
This draconian forfeiture [of copyright in pre-1978 musical works] will occur because of new judicial interpretations of a law no longer on the books, despite the fact that the copyright owners have done nothing wrong, but complied with the law as it was understood at the time. In our view, the new judicial interpretations are based on a lack of understanding of the technical meanings of the concepts of copies and publication in the 1909 Act.
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Needless to say, we believe the Register is correct.
THE RULE IN LA CIENEGA IS WRONG AND SHOULD BE PROMPTLY CORRECTED
Congress did not directly address the question of whether fixations of music that could be heard, but from which the music could not be visually perceived, were ''copies'' for purposes of the 1909 Act. Provisions in the 1909 Act itself, and laws subsequently enacted by Congress, make clear, however, that recordings were not ''copies.''
Of course, in 1909, today's recorded music formats—the vinyl LP, audio cassette and CD—did not exist. In fact, the hottest technology for getting music into the home was the piano roll. The 1909 Copyright Act contained special licensing provisions relating to the manufacture of piano rolls, but the reproductions were referred to as ''mechanical'' reproductions—not ''copies.''
When Congress extended Federal copyright protection to sound recordings in 1971, the law made clear that phonorecords constituted copies only of the sound recording, and not of the musical compositions on the recording. Consistent with this action, the 1976 Copyright Act required notice only on visually perceptible copies of works and on phonorecords of sound recordings. There was absolutely no requirement that a recording of a musical composition needed to include a separate copyright notice for the music.
Over the lifetime of the 1909 Copyright Act, publishers and songwriters did not merely rely on their own interpretation of the law to guide their practices. When questions concerning the concepts of ''copy'' and ''publication'' arose, they were litigated by our industry. And, we believed, they were resolved. In 1976, the Second Circuit squarely supported industry practice in Rosette v. Rainbo Record Manufacturing Corp.,4 which held that the sale of recordings did not constitute publication of the musical compositions on those recordings under the 1909 Act, and that such recordings did not need to include copyright notice for the compositions.
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Moreover, the registration practices of the U.S. Copyright Office fully supported the established view that recordings were not copies under the 1909 Act and that distribution of recordings did not constitute publication under the Federal statute. As the Register of Copyrights has explained in letters to the Subcommittee, the Office consistently refused to register copyright in a musical composition as a published work where the registration was sought based on a recording embodying the composition. The Office, instead, would advise applicants that, to be registered as a published work, visually perceptible copies of the work—that is, sheet music copies—had to have been sold or offered to the public. Where only recordings had been sold, the Office would suggest registration of the musical composition as an unpublished work.
The Ninth Circuit, in La Cienega, has chosen to ignore the intent of the 1909 Copyright Act, established legal precedent, industry practice, and the views and practices of the Copyright Office. If the result were merely bad law, that would be bad enough. But, as I said in the beginning of my testimony, the impact is far more profound. Hundreds of thousands of music copyrights—from Gershwin and Irving Berlin to Motown, from the standards of the big band era to rock-and-roll, from contemporary classical music to jazz—all are at risk unless and until this injustice is corrected.
LA CIENEGA PUNISHES ONLY AMERICAN WRITERS
There is an additional, and often-overlooked, element of unfairness in the impact of the La Cienega decision. Only American music is faced with loss of copyright. Foreign works by writers from countries that are members of the Berne Convention for the Protection of Literary and Artistic Works (''Berne Convention''), even if threatened with public domain status, are eligible for copyright restoration under provisions of the Berne Convention Implementation Act of 1988.5 As a result, foreign authors and copyright owners will be assured of continued protection, in spite of La Cienega, while their American counterparts could have their property stripped away.
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And, sadly, American writers could be deprived of their copyrights on a global basis. American music accounts for 40 percent of the music heard and enjoyed around the world. American music publishers and writers today earn more than half of their royalty income outside the United States. Nothing in either of the major copyright treaties that serve as the basis for foreign protection of U.S. copyrights—the Berne Convention or the Universal Copyright Convention—requires other nations to protect American works that are in the public domain here. Other countries are free to deny protection for works that are not protected at home. And they can hardly be expected to do otherwise.
The La Cienega rule has the potential not only to destroy the value of important American copyrights in the United States, but also to eliminate a significant portion of the positive contribution to our nation's trade balance that global enthusiasm for American music generates.
THE LA CIENEGA RULE ENCOURAGES PIRACY AND DISRESPECT FOR COPYRIGHT
NMPA is often asked who is on the other side of the La Cienega issue. The answer is no one. Or at least no one who is likely to come forward. For now, the principal beneficiaries of the conflict between the Second and ninth circuits are outright pirates and bootleggers. It is only a matter of time before the thieves learn that the state of the law could greatly reduce the risk of their illegal enterprises.
The La Cienega decision gives parties who would use music without authorization a new and powerful defense. Today, if a copyright owner pursues an infringement action against an unauthorized user of his work, at least in Ninth and now the Sixth Circuit, he runs the risk of losing his copyright. The alleged infringer can seek to have the action dismissed because the work alleged to be protected by copyright is in the public domain. And we have seen that the alleged infringer can win.
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As a consequence, we are beginning to fear a chilling effect on the ability of copyright owners in pre-978 music to bring enforcement problems to court.
La Cienega legislation needs to have been passed yesterday. I cannot over-emphasize the importance of prompt congressional action to so many innocent people. In the recent case of Mayhew Music Co. v. Gusto Records, Inc.,6 pursuing an alleged infringer cost the plaintiff four copyrights and placed more than 30 others at risk. Widespread reliance by record pirates and other infringers of music copyrights is only a matter of time. It is fairer to everyone for Congress to correct the problem now.
THE LA CIENEGA RULE ADVANCES NO RATIONAL POLICY OBJECTIVE
If new judicial interpretations of what constituted publication under the 1909 Copyright Act are allowed to stand, tens of thousands of American songwriters will lose the value and income from all or part of their life's work. Thousands of music publishers will see the assets of their businesses and catalogues depleted, and in some cases, devastated. And America will see some most renowned examples of 20th Century music and culture made available to be appropriated by others around the world, without recognition of the creator or compensation to the author and his or her family.
Even if it could be argued that the Ninth Circuit's rule in La Cienega makes some sense, what possible prospective public policy objective is served by depriving individuals and businesses of their property? There is no way that a writer or publisher whose work was made available on recordings prior to 1978 can go back in time and undo what was done. If the music was distributed on a recording that did not bear copyright notice for it, the Ninth Circuit says the copyright is lost. And—at least for American works—there is no means to restore it.
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Over the past decade, Congress has repeatedly shown its desire to abandon copyright formalities and the severe penalties that could befall a creator or copyright owner for failure to comply. Most significantly, in 1988, in anticipation of the U.S. joining the Berne Convention, Congress eliminated the requirement that copies of works bear a copyright notice as a condition to maintaining copyright protection. It also eliminated the requirement of copyright registration as a prerequisite to filing an infringement action—at least for foreign nationals of Berne Convention countries.7 And, in the Copyright Renewal Act of 1992, Congress ended the practice of requiring the filing of a renewal registration to secure the full term of copyright protection available under the law.8 Allowing retroactive judicial imposition of formalities is contrary to the direction in which Congress has taken the copyright law.
As the Register of Copyrights has noted,
Regardless of whether or not [new judicial interpretations of ''copy'' and ''publication''] are correct, however, they lead to unfair results when adopted retroactively today. The rationale [behind the new interpretations] is based on policy grounds relating to appropriate incentives for copyright owners' behavior—but since the [1909] statute no longer applies to new acts, concepts of future incentive are meaningless.
We urge the Subcommittee, in the strongest terms, to reject a rule that can only hurt, not help, and to act with the greatest possible speed to remove this threat to our industry.
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In closing my remarks on this subject, I must acknowledge the leadership Chairman Coble and members of the Subcommittee have already demonstrated in dealing with it. Last year, provisions identical to those in H.R. 1967, Chairman Coble's bill to correct the La Cienega decision, were approved by the Subcommittee as part of a copyright technical corrections bill. The full Judiciary Committee approved the language, and it passed the House of Representatives without objection.
As I said a moment ago, the La Cienega correction, to our knowledge, has no substantive opposition. We are aware, however, that some would seek to hold La Cienega legislation—or any copyright bill, for that matter—hostage to their demands for unrelated changes in the copyright law. We urge you to deal with the La Cienega issue alone, and on its merits.
H.R. 1967 and other bills that would correct the La Cienega decision are not about new rights. They are not about extended rights. The bills simply assure creators and owners of music copyrights that they continue to own their property. The bills restore a long-established rule of law, nothing more. And they do so to no one's detriment and at no one's expense.
America's songwriters and music publishers need your help to preserve their copyrights, their incomes and their businesses. We urge the Subcommittee to approve a La Cienega correction at its earliest opportunity, and to support prompt enactment of this crucial legislation.
COPYRIGHT TERM EXTENSION
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NMPA wishes to express its unqualified endorsement of the statements submitted by representatives of the songwriter community, the performing rights organizations, and other copyright industry groups in support of copyright term extension. We also wish to thank and commend Congressmen Bono and Gallegly for their leadership in this area.
As I said in my discussion of the La Cienega issue, American music enjoys enormous popularity around the world. According to figures compiled by the International Intellectual Property Alliance, of which NMPA is an active member, the core copyright industries, including music, in 1995 accounted for a staggering $53.25 billion in foreign sales and exports, surpassing every other export sector except automotive products and agriculture.
With the world hungry for American music and other creative American works, it should be beyond question that the levels of protection here must keep pace with those of other copyright respecting countries.
The United States over the last decade has established itself as a leader in forging international consensus on strengthened norms for copyright protection. In the movement to extend the duration of copyright, however, Europe has taken the lead. And it has done so in a way calculated to deprive Americans of the benefit of extended protection.
The European Union's 1995 directive harmonizes the term of copyright among its member states at the lifetime of the author plus 70 years, and follows the Berne Convention's ''rule of the shorter term.'' The rule is a notable exception to the Berne Convention's general policy of national treatment. In essence, it allows a country to protect a foreign work for only as long as it is protected in its country of origin.
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International law provides that we must grant an extended copyright term if we wish to received the benefits of it in other markets. It is in the interest not only of the affected industries, but also of our overall trade posture, that Congress promptly enact term extension legislation.
MUSIC LICENSING
NMPA also fully supports the statements of our songwriter and performing rights organization colleagues who will describe for the Subcommittee the unfairness of the so-called ''Fairness in Musical Licensing'' bills.
The music licensing bills deal with commercial relationships between owners of property and users of that property. It should surprise no one that disputes will, from time to time, arise in this context. What is surprising, is that operators of commercial, religious music format radio stations, and other commercial enterprises that use music to attract and to satisfy their customers, should look to Congress to resolve business questions.
NMPA continues to hope that representatives of the music users will return to the bargaining table and work out reasonable license agreements with the various performing rights organizations. Congress can and should continue to encourage this process. But as we go forward, we should remember, once again, that the world is watching.
In testimony submitted for the record of a May 1996 Small Business Committee hearing on music performance rights licensing issues, NMPA warned that legislative proposals similar to those currently reflected in H.R. 789 could have serious implications for U.S. compliance with existing international obligations and for the ability of music creators and copyright owners to continue to receive fair treatment in foreign markets. We cautioned, in particular, that an expansion of the exemption from infringement liability contained in section 110(5) of the Copyright Act was likely to exceed the scope of permitted exceptions under the Berne Convention.9
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It appears U.S. trading partners share this concern. On June 11, 1997, the European Commission announced that its was launching an investigation based on a complaint by the Irish Music Rights Organization that the existing 110(5) exemption and any broadened exemption, such as that proposed in H.R. 789, adversely affect the cross-border licensing of Irish music, and violate U.S obligations under Article 9 of the World Trade Organization Agreement on the Trade Related Aspects of Intellectual Property Rights and Article 11 of the Berne Convention.
The U.S.—more than any other country—depends on strong and effective protection of copyrights worldwide. We cannot continue to lead in an area so important to our national economy if legal protections currently in place here are allowed to be eroded.
We urge you to reject H.R. 789.
Thank you, Mr. Chairman and members of the Subcommittee for hearing NMPA's views on these important subjects. I am pleased to respond to your questions.
FOOTNOTES
1 53 F.2d 950 (9th Cir. 1995).
2 Mayhew Music Co. v. Gusto Records, U.S. Dist. Ct., M.D. Tenn., Nos. 3:94–0134, 3:94–0233 (April 4, 1997).
3 For published works, proper notice included the word ''copyright'' or an acceptable substitute, the name of the copyright owner, and the year of first publication.
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4 354 F. Supp. 1183 (S.D.N.Y.), aff'd per curiam, 546 F.2d 461 (2d Cir. 1976).
5 Act of October 31, 1988, Pub. L. 100–568, 102 Stat. 2853.
6 Supra note 2.
7 Act of October 31, 1988 (''Berne Convention Implementation Act of 1988''), Pub. L. 100–568, 102 Stat. 2853.
8 Act of June 26, 1992 (''Copyright Renewal Act of 1992,'' being Title I of the ''Copyright Amendments Act of 1992''), Pub. L. 102–307, 106 Stat. 264.
9 Music Licensing and Small Business, Hearing Before the House Committee on Small Business, 104–76, 104th Cong., 2d Sess. (May 8, 1996).
Mr. COBLE. Gentlemen, you all will be pleased to know that I have introduced a piece of legislation that will fix this problem. If it passes, it won't please a judge in the ninth circuit and a district court judge in Nashville who ruled against you. My bill would restore the interpretation of pre-1978 copyright law as it applies to this situation. As each of you pointed out, you all were complying with instructions from the Copyright Office and the second circuit, so your hands were clearly clean.
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Mr. Murphy, let me ask you a question. If Congress did nothing to legislate a remedy to the La Cienega problem, who would stand to benefit?
Mr. MURPHY. The only people who can and will are the pirates. We have a number of copyright piracy situations that we are monitoring.
Unfortunately, as a result of La Cienega, we are not able to bring court actions in California; we are not able to bring them here in Nashville. This is a very, very serious issue, and we don't know that other courts may have some other matters pending of a similar nature. We have already had the Mayhew case, the La Cienega case, and there may be others. This is extremely serious. I can't think of anything else that has been more important for Congress to move on in the intellectual property area over the last decade or more.
Consider that we are trying to correct problems created, if you will, 80 years ago. No one intended it that way; it is just the way the courts interpreted it. But certainly when Congress first acted long ago, no one could conceivably agree that a copyright notice was to be placed on a recording to protect the underlying composition.
My organization licenses recordings in America, and we license over 300,000 songs a year on a compulsory basis. It is impossible, literally impossible, for a songwriter or a publisher to even ask that a circle C be put on a phonorecording. We license on an automatic basis. Our principlals don't even know a recording is out there.
Mr. COBLE. Mr. Williams, let me ask you a practical question. As a songwriter, do you have any control, as a practical matter, over what is printed on the phonorecord cover?
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Mr. WILLIAMS. I have enough trouble trying to get a free copy of the record. Just to get the words properly printed on the liner notes is an absolute triumph.
The thing that I would also like to say is that the system has worked so wonderfully. When I walked into my first publishing office—which was Rondor Music—as an absolute neophyte, I knew nothing about the law. The laws worked for me. The copyright laws protected me when I was an absolute beginner: A reputable publishing company working with the law as it stood, and all of a sudden I am still OK 25, 30 years later. This fix is desperately needed to provide for other young songwriters to have the same kind of protection as they waltz into this business.
Mr. COBLE. Thank you, sir.
The gentleman from Wisconsin, Mr. Sensenbrenner.
Mr. SENSENBRENNER. Thank you very much, Mr. Chairman.
I have two very quick questions that are more of a technical nature. As you know, the House of Representatives unanimously passed in the last Congress legislation that fixed the La Cienega question, and it never was acted upon by the Senate, so that is why we are talking about this here today. Do either of you know if there was a petition for certiorari filed in the Supreme Court after the ninth circuit decision?
Mr. MURPHY. Yes, sir.
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Mr. SENSENBRENNER. And they turned it down?
Mr. MURPHY. Yes, they did.
Mr. SENSENBRENNER. I am a bit puzzled, Mr. Murphy, because your testimony says that the second circuit held the opposite way. Usually when different circuits come up with different opinions or different decisions, the Supreme Court takes jurisdiction to resolve it so that we have a uniform national law. Do you know why they didn't do it?
Mr. MURPHY. No, I don't, sir. I think it is always interesting to speculate why the Supreme Court does or does not accept certiorari on any numbers of cases. But we do think—and I think it is important to note—that the second circuit has been considered, I think, by all the experts to be the definitive circuit in terms of intellectual property. Of course, we have been guided by the Copyright Office, which has told us how to operate and what to do for many, many years.
Mr. SENSENBRENNER. People ought to learn not to rely on advice they get from the Government. Just ask folks who have been told by the IRS what to put on their tax return and then get stung by an audit 2 years later.
Mr. MURPHY. I suppose that is right. But I think in this particular instance we have a whole litany of dangers, and we have talked about really 80 years of compliance by creators and copyright owners.
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Mr. SENSENBRENNER. I understand that, and I am sympathetic to and supportive of your position, but I am wondering why there has not been a legal remedy when there are apparently conflicting decisions by the circuits. We have got this decision that recently was handed down by the sixth circuit. Is that still appealable to the Supreme Court or not?
Mr. MURPHY. I don't believe so. It is not yet appealable. I think it might be also important to note that we asked the Register of Copyrights asked to file an amicus petition with the Supreme Court on La Cienega, and they were denied. They were denied that by the Justice Department.
Mr. COBLE. Will the gentleman yield?
Mr. SENSENBRENNER. I yield for a minute.
Mr. COBLE. Jim, I think the Tennessee case did not advance beyond the district court. I don't think it went to the circuit.
Mr. MURPHY. It has not. It is still at the trial level. We would not want to comment on something that is still pending. What we knew happened is that the Copyright Office did want to file a petition with the Supreme Court in the La Cienega case, and it was denied permission by the Justice Department at that time.
There are many factors as to why the Supreme Court does or does not do something, whether the Supreme Court would consider one district or circuit correct against another, but the fact is what Congress intended. That is what we are here to discuss, what Congress intended and what, in fact, can be done.
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Mr. SENSENBRENNER. I think we all know and agree what Congress intended in 1978.
Mr. MURPHY. 1909.
Mr. SENSENBRENNER. 1978 is when the law was changed. I will concede 1909, too.
The other question that I have—and, again, it is technical and legal—I don't know the answer to it. Is it possible for the Congress to retroactively restore a copyright to matter that has fallen into the public domain?
Mr. MURPHY. I think that once the courts have adjudicated on a certain matter like what they have with La Cienega, I think it is extremely difficult. I think it may be impossible in regard to a U.S. work. I think that is why we are here to try to correct this problem immediately. Once the courts have adjudicated, you can't revive the dead. When that American copyright is gone, it is gone.
I think it is important that we now rectify this devastating threat. We have an opportunity to save American culture. I think we ought to move on it and move on it real quick. It is time for Congress to act and move the responsibility over to the Senate side.
Mr. SENSENBRENNER. Thank you.
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Mr. COBLE. I thank the gentleman.
The gentleman from Massachusetts, Mr. Delahunt.
Mr. DELAHUNT. Thank you, Mr. Chairman.
Mr. Murphy, you don't belong to a very exclusive club if you become confused by some of the decisions and actions of the Supreme Court. Again, in response to the rationale as to why the U.S. Supreme Court did not grant certiorari, I am simply befuddled by that myself. Maybe we wouldn't be here today, but that is the case, and we will have to deal with it.
I think in response—and I think I heard from Mr. Williams during the course of his testimony—in response to Mr. Sensenbrenner's question about the retroactive application of any law that would be passed by Congress, we in fact have already done that—at least I think that is what I heard from Mr. Williams—in terms of foreign copyrights.
Mr. WILLIAMS. That is correct. In terms of foreign works.
Mr. DELAHUNT. You referenced the action, the possibility, or it may be the reality, of pirates entering this particular domain. Can you give us any examples and tell us whether you have done any evaluation? Are these efforts domestic or foreign?
Mr. MURPHY. These are domestic pirates, as far as we know, Congressman. We would think—and it is very difficult to know who really are the owners of many corporations, but it is very clear that there are pirates in America or with access to our markets who are doing this.
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There are any number of specific cases. We have pending right now before our office at least six or more problems or instances which are connected to piracy and misuse of copyright and we cannot bring actions in those States or circuits. We are in a dilemma, as you know, because we don't want to become too public with this issue to make more potential pirates aware of the larger problem. We will, and we will perhaps as time moves on if we are not able to correct this. But there is a serious, serious problem here.
Mr. DELAHUNT. Let me just ask one other rather simple question. My understanding is, the Copyright Office agrees that the problem ought to be fixed.
Mr. MURPHY. Absolutely.
Mr. DELAHUNT. Is there anybody disagrees with that position?
Mr. MURPHY. No, sir, I don't believe there is anybody in Congress or otherwise who would disagree with it. We just hope that this legislation can be placed on a fast track. The magnitude of the problem here is astounding.
Mr. DELAHUNT. Let me assure you—and I do agree with you, Mr. Murphy, I think that this particular issue, again, because of the immediacy of it and the pressing need, ought to be treated separately and differently than any other issue.
Let me indicate to the chairman that I am willing to work with him, to sign on to his bill, I am sure along with Bob Clement, your Representative, to work hard among our colleagues in Congress, both Republican and Democratic, to see that this gets to the President's desk and is signed.
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Mr. MURPHY. Thank you, sir. We are very grateful.
Mr. COBLE. The gentleman from Tennessee, Mr. Clement.
Mr. CLEMENT. Mr. Williams, Mr. Murphy, we are pleased to have you here at this most important hearing.
Copyright infringement is said to be much more widespread than one might suspect. How does the La Cienega ruling help the growing number of companies that pirate illegal tapes and use unlicensed copyrights, and what effect does this have on the music industry?
Mr. MURPHY. The effect is a rippling effect. It not only deprives incomes of songwriters and publishers but also the recording companies.
The legitimate recording companies, they will do what they have to do and abide by the law. But we have a number of other companies who will go out there and use these loopholes to take away sales in legitimate markets from those people and companies that are doing what they should. Even though the reputable people know right now that they can probably try to do the same they don't do that.
So the amount of money, it is hard to tell you in precise numbers. I hope I don't have the ability to tell you really what happens. We want to prevent this problem from growing. This is a cancer we have in the music industry that must be corrected and corrected immediately.
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Mr. CLEMENT. Mr. Williams.
Mr. WILLIAMS. I have no further comments. I have heard wonderfully encouraging comments from the committee, and I am just pleased to have been heard today. Thank you.
Mr. COBLE. Gentlemen, thank you all for being with us.
I will now call our second panel, and I will introduce them as they come forward. The first witness is Fritz Attaway, who is the senior vice president and general counsel of the Motion Picture Association of America, where he has been since 1976.
Our second witness is George David Weiss, one of America's greatest songwriters and president of the Songwriters Guild of America, the oldest and largest songwriter organization. It would be hard for anyone to have missed George's music. His songs have reached music fans around the world, in all categories—pop, rock, soul, jazz, film, and Broadway. Just to name a few of his best known songs: ''The Lion Sleeps Tonight;'' ''Can't Help Falling in Love,'' for Elvis Presley; ''What a Wonderful World,'' for Louis Armstrong; ''Lullaby of Birdland,'' for Ella Fitzgerald; ''That Sunday, That Summer,'' for Nat King Cole and his daughter Natalie; ''Mr. Wonderful,'' for Sammy Davis; ''Oh, What It Seemed To Be,'' for Frank Sinatra; and ''Stay With Me,'' for Bette Midler.
Mr. Weiss, I notice conspicuously absent a bluegrass tune in that list, but I will hold you harmless for that.
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Mr. WEISS. I was born in the wrong part of the country.
Mr. COBLE. All right, sir.
In recognition of his wonderful body of work, Mr. Weiss was inducted into the Songwriters Hall of Fame in 1984.
Our third witness is Ms. Frances Preston, who is president and CEO and a member of the board of directors of Broadcast Music, Inc., the performing rights organization. She joined BMI in 1958 and was named to her current position in 1986. Under her guidance, the organization has grown significantly, to its current membership of more than 180,000 songwriters, composers, and music publishers.
Our fourth witness is Julius Epstein, who is a screenwriter. Mr. Epstein started out as a radio publicist who soon turned to writing one-act plays and, from 1935, screenplays. In 1939, he began a long and fruitful collaboration with his brother, Phillip G. Epstein, which lasted until 1958. They shared Academy Award honors for the screenplay of ''Casablanca'' in 1943 and contributed to the success of many other films of Warner Bros. and other studios. Mr. Epstein won the screenwriters' Laurel Award for Lifetime Achievement, the highest honor given for screenwriting, the UCLA Award for setting a shining example for the screenwriters of the future, numerous awards from universities and colleges, and the Writers Guild of America Foundation Award for Lifetime Achievement.
Our final witness on this panel is Jerome Reichman, a professor at the Vanderbilt School of Law here in Nashville. Professor Reichman has written and lectured widely on comparative and international intellectual property law, and one of his most recent publications is ''The Duration of Copyright and the Limits of Cultural Policy,'' published in the Cardozo Arts and Entertainment Law Journal.
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Mr. Walton, we will start with you. And, again, gentlemen and lady, if you all can comply with the 5-minute rule, we will be appreciative.
Mr. Walton.
Mr. WALTON. Thank you, Mr. Chairman.
I am here as the executive director of the Writers Guild, basically to endorse Mr. Epstein's statement and to answer any questions the committee may have. Perhaps we should go to Mr. Epstein's statement first, Mr. Chairman, if that is agreeable.
Mr. COBLE. That will be fine.
Mr. WALTON. It is my privilege to be here. Thank you for letting me be a late addition to the panel.
Mr. COBLE. You are indeed welcome.
Mr. Epstein.
STATEMENT OF JULIUS EPSTEIN, SCREENWRITER AND MEMBER, WRITERS GUILD OF AMERICA, WEST, ON BEHALF OF THE WRITERS GUILD OF AMERICA
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Mr. EPSTEIN. Good afternoon, Chairman Coble and members of the subcommittee.
My name is Julius Epstein, and I feel privileged to appear before this subcommittee. I am here to comment on the Copyright Term Extension Act of 1997. I speak on behalf of a group of creators left out of the act, creators of movies and television programs made before 1960. I am not a lawyer or a lobbyist. I am a screenwriter. I write movies. I have worked in the movie business now for over 60 years and have written over 50 movies. I was fortunate to receive an Academy Award for the screenplay of ''Casablanca.''
I am here to discuss the impact of the copyright term legislation on a group of American authors and creators who created motion pictures during the so-called golden age, a group who created such classics as ''The Best Years of our Lives,'' ''Sunset Boulevard,'' ''Mr. Smith Goes To Washington,'' ''It Happened One Night,'' and ''High Noon.'' A group that does not receive compensation for their work, even though their movies are shown over and over. A group who will not benefit under the proposed legislation because the legislation gives the copyright owner, and not the actual creator, the additional 20 years of copyright protection. Copyright owners will reap a windfall from the extension even though none of them had any involvement whatsoever with the actual production of the movies.
I would like to talk about those who took movies out of the nickelodeons and turned our movie industry into the second greatest export of the United States and the envy of the world. I am not going to claim that the screenwriters were solely responsible. I will get to that in a moment.
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First, I would like to acknowledge the contributions of the great actors and actresses: Clark Gable, Jimmy Stewart, Jimmy Cagney, Greta Garbo, Joan Crawford, Norma Shearer, Gene Kelly, John Wayne, Gary Cooper, Bette Davis, Humphrey Bogart, Ingrid Bergman, and the many, many others. No one portrayed the role of an idealistic individual, the common man, the improbable hero bucking the odds and thwarting the schemes of materialistic cynics, better than Jimmy Stewart in ''It's a Wonderful Life.'' Who can forget Gary Cooper standing up against the vengeful outlaws in ''High Noon'' or Bogart as Rick Blaine battling against the Nazis in ''Casablanca.''
The great actors and actresses were directed by equally great directors like William Wyler, John Ford, Fred Zimmerman, George Stevens, Frank Capra, Ernst Lubitsch, David Lean, Michael Curtiz, and Alfred Hitchcock.
Wyler, who directed ''The Best Years of Our Lives,'' ''Jezebel,'' ''Mrs. Miniver,'' ''Ben Hur,'' ''Friendly Persuasion,'' and ''Roman Holiday,'' developed the technique of filming long takes in which characters appear in the same frame for the duration of the entire scene rather than cutting from one to another. The cinematographic style gave audiences the collective experience of holding their breath. The technique required great discipline on the part of actors, who, like Bette Davis, clashed with Wyler. Wyler was nicknamed ''90-take Wyler'' for the many takes he filmed of every shot until he was satisfied that he had achieved a desired effect or nuance.
Orson Welles' ''Citizen Kane'' remains memorable for its original use of the soundtrack, deep focus camerawork, and low-angle compositions, defining the use of the camera for decades.
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Frank Capra celebrated the little guy who defeats the city slickers and the power figures. His victories are ours, achieved through pluck, persistence, and his overwhelming decency, which is matched by the decency of the American people when they see the true situation.
And then there was Mike Curtiz. Curtiz directed ''The Charge of the Light Brigade,'' ''The Adventures of Robin Hood,'' ''Yankee Doodle Dandy,'' ''Casablanca,'' and ''Mildred Pierce.'' He was Hungarian and uniquely slaughtered the English language. On one occasion, he was directing a western and was about to shoot a scene in which wild, riderless horses would gallop furiously away. ''Bring in the empty horses!'' he shouted to his assistant. He never lived that down. Years later, David Niven would title his novel about Hollywood,, ''Bring in the Empty Horses.''
My brother Phil and I did four pictures, including ''Casablanca,'' with Curtiz. In those days, we received our weekly paychecks on Wednesday, and when we had arguments with Curtiz—and they were many—he would invariably call us Wednesday bums. I confess there are times now when I wish I was a Wednesday bum again.
All right, then. I have acknowledged the importance of actors and directors of the golden age. But what if there had been no writers, no scripts? Actors could not have acted. Directors could not have directed. Producers could not have produced. Composers could not have composed. Editors could not have edited. Simply put, without the screenwriter, there would have been no movies, no golden age. But, fortunately, there were screenwriters and so there were scripts.
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Mr. COBLE. Mr. Epstein, you are well over the 5 minutes. If you could summarize.
Mr. EPSTEIN. The best case for writers was made unwittingly by Irving Thalberg, regarded as the best producer of all time. He said to his fellow producers, ''The most important part in filmmaking is played by the writers. We must do everything in our power to keep them from finding out.''
And who are the screenwriters that made all of this possible? To begin with, there was Robert Riskin, whose credits include ''It Happened One Night,'' ''Mr. Deeds Goes to Town,'' ''Meet John Doe,'' ''You Can't Take It With You,'' and ''Lost Horizon.'' Without exception, his pictures are celebrated for their decency, their humanity, and their uniquely American values. Riskin's movies, like many from this era, shared a basic faith in the essential goodness of the common man and the inevitable triumph of honesty and justice over selfishness and deceit. As Lionel Barrymore said in ''You Can't Take It With You,'' ''You can't take it with you, Mr. Kirby. So what good is it? As near as I can see, the only thing you can take with you is the love of your friends.''
We have an opportunity to determine Federal copyright policy and decide who benefits from this extension. This group of authors and creators have given so much to our American culture. On behalf of these writers, directors, actors, and actresses, I ask you to recognize their contribution. As a matter of fairness, those who created the copyrighted work should share in the proceeds of this new term.
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Billy Wilder summed up our situation in his usual elegant style. He wrote, ''This is an era when the studios are granting $90 million severance packages. Writers are asking just enough to buy a little schnitzel.'' May we ask your help in getting the schnitzel for us?
Thank you.
[The prepared statement of Mr. Epstein follows:]
PREPARED STATEMENT OF JULIUS EPSTEIN, SCREENWRITER AND MEMBER, WRITERS GUILD OF AMERICA, WEST, ON BEHALF OF THE WRITERS GUILD OF AMERICA
Good afternoon Chairman Coble, members of the Subcommittee. My name is Julius Epstein and I feel privileged to appear before this subcommittee. I am here to comment on the Copyright Term Extension Act of 1997. I speak on behalf of a group of creators left out of the Act, creators of movies and television programs made before 1960.
I am not a lawyer or a lobbyist. I am a screenwriter. I write movies. I have worked in the movie business now for over 60 years and have written over 50 movies. I was fortunate to receive an Academy Award for the screenplay of Casablanca.
I am here to discuss the impact of the copyright term legislation on a group of American authors and creators who created motion pictures during the so-called ''Golden Age.'' A group who created such classics as ''The Best Years of Our Lives, Sunset Boulevard, Mr. Smith Goes to Washington, It Happened One Night and High Noon.'' A group that does not receive compensation for their work—even though their movies are shown over and over. A group who will not benefit under the proposed legislation because the legislation gives the copyright owner, and not the actual creator, the additional 20 years of copyright protection. Copyright owners will reap a windfall from this extension even though many of them had no involvement with the actual production of the motion picture.
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I would like to talk about those who took movies out of the nickelodeons and turned our movie industry into the second greatest export of the United States and the envy of the world. I am not going to claim that the screenwriters were solely responsible. I will get to that in a moment. First, I would like to acknowledge the contributions of the great actors and actresses: Clark Gable, Jimmy Stewart, Jimmy Cagney, Greta Garbo, Joan Crawford, Norma Shearer, Gene Kelly, John Wayne, Gary Cooper, Bette Davis, Humphrey Bogart, Ingrid Bergman and the many, many others. No one portrayed the role of an idealistic individual, the common man, the improbable hero bucking the odds and thwarting the schemes of materialistic cynics better than Jimmy Stewart in Its a Wonderful Life. Who can forget Gary Cooper standing up against the vengeful outlaws in High Noon or Bogart as Rick Blaine battling against the Nazis in Casablanca.
The great actors and actresses were directed by equally great directors like William Wyler, John Ford, Fred Zimmerman, George Stevens, Frank Capra, Ernst Lubitsch, David Lean, Michael Curtiz and Alfred Hitchcock. Wyler, who directed The Best Years of Our Lives, Jezebel, Mrs. Miniver, Ben-Hur, Friendly Persuasion and Roman Holiday, developed the technique of filming long takes in which characters appear in the same frame for the duration of the entire scene rather than cutting from one to another. The cinematographic style gave audiences the collective experience of holding their breathe. This technique required great discipline on the part of actors, who like Bette Davis, clashed with Wyler. Wyler was nicknamed ''90-take Wyler'' for the many takes he filmed of every shot until he was satisfied that he had achieved a desired effect or nuance. Orson Welles's Citizen Kane remains memorable for its original use of the sound track, deep-focus camerawork and low angle compositions, defining the use of the camera for decades. Frank Capra celebrated the ''little guy'' who defeats the city slickers and the power figures. His victories are ours, achieved through pluck, persistence, and his overwhelming decency, which is matched by the decency of the American people when they see the true situation.
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And there then was Mike Curtiz. Curtiz directed The Charge of the Light Brigade, The Adventures of Robin Hood, Yankee Doodle Dandy, Casablanca and Mildred Pierce. He was Hungarian and uniquely slaughtered the English language. On one occasion, he was directing a western and was about to shoot a scene in which wild, riderless horses would gallop furiously away. ''Bring in the empty horses,'' he shouted to his assistant. He never lived that down. Years later, David Niven would title his novel about Hollywood, ''Bring in the Empty Horses.'' My brother Phil and I did four pictures, including Casablanca, with Curtiz. In those days we received our weekly paychecks on Wednesday and when we had arguments with Curtiz, and they were many, he would invariably call us ''Wednesday Bums.'' I confess that there are times now when I wish I was a ''Wednesday Bum'' again.
All right then, I have acknowledged the importance of actors and directors of the Golden Age. But what if there had been no writers, no scripts? Actors could not have act. Directors could not have directed. Producers could not have produced. Composers could not have composed. Editors could not have edited. Simply put, without the screenwriter, there would have been no movies, no Golden Age. But fortunately there were screenwriters and so there were scripts. Brilliant scripts that became brilliant films. It is ironic that the best case for writers was made unwittingly by Irving Thalberg, regarded as the best producer of all time. He said to his fellow producers, ''The most important part i