June 1, 2000 The Honorable Howard Coble Chairman, House Subcommittee on Courts and Intellectual Property B351A RAYBURN HOB Washington, D.C. 20515-6219 "Sound Recordings as Works Made for Hire" Hearings May 25, 2000 Dear Mr. Chairman: As the President and Chairman of the Board of The American Society of Composers, Authors, and Publishers, I join with the many performing artists' groups who have united to protest the decision to add sound recordings to the list of commissioned works that may be considered "works made for hire" as the definition of that term was expanded by the Satellite Home Viewer Improvement Act of 1999. At the outset, I commend you for your decision to hold this hearing, and also express the appreciation of ASCAP's members for your consistent record of fairness in your approach to issues that affect songwriters and music publishers. This admirable history extends to all of the complex and contentious questions, which are an integral part of every legislative proposal that affects creative property owners. We are, therefore, confident that this "works made for hire" issue will also be resolved fairly, in a manner that preserves the legitimate interests of the performing artists. Although the performing right of ASCAP members is not directly affected by the issue of sound recordings as works made for hire, so many of those whom we represent are adversely affected by this issue that I felt that it was imperative for us to go on record opposing the change. The members of this subcommittee and other members of Congress will once again be asked to determine how to balance competing rights among performing artists, record companies and others involved in the creation of recorded musical performances. I am offering the songwriters' perspective on some of the equitable considerations that we feel should be included in your deliberations. PERFORMING ARTISTS AND RECORD COMPANIES The tension between performing artists and record companies over who should have the primary right in a recording has probably gone on since the advent of sound recordings. In the 1909 Copyright Act, sound recordings were not protected as copyrightable works under the federal copyright law. By the late 1960's, several efforts to provide copyright protection for sound recordings had failed, but it is interesting to note that two very different approaches were proposed in defining who was to be considered the "author" of a sound recording and of a new performance right that was proposed to be attached to sound recordings. One focused on granting the copyright in sound recordings to the record companies; another emphasized the performing artist as the proper beneficiary. I have been told of a famous hearing that was held by one of the Congressional Judiciary Committees in the late 1960's. It was one of the early uses of a celebrity as an expert witness. The hearing featured Julie London who was then famous for several hits including "Cry Me A River," written by ASCAP songwriter and now an ASCAP Board member, Arthur Hamilton. Julie London provided audio evidence to the Committee of how much the singer brings to the creative interpretation of the song. Her examples included her reinterpretation of the "Mickey Mouse Club" theme song as a ballad, and Barbara Streisand's hit record, "Happy Days Are Here Again," also done as a soft, sad ballad. As moving and memorable as her performance was to her congressional audience, she did not convince Congress to pass the bill she supported. Congress finally passed a bill that extended limited protection to sound recordings on October 15, 1971, but it deliberately left the "authorship" question to the employment and contractual relationships of the parties. I should note that, for ASCAP, history often repeats itself in these legislative struggles involving performing artists. When the royalty for digital audio recordings of music was originally proposed in the bill that eventually became the Audio Home Recording Act of 1992, I believe that the initial proposal would have given the royalty to the recording companies and not to the performing artists. ASCAP, among others, insisted that the performing artists be named in the legislation, and that position prevailed. Again, when the Performance Rights in Sound Recordings Act of 1995 was being considered, ASCAP urged that performing artists benefit from the new right being extended. We did so again in the recent battle over a new compulsory license for sound recordings played over the internet. Thus, we are true to our consistent position over many years when we join in support of the performing artists in this instance. DISPARITY OF BARGAINING POWER AND TERMINATION RIGHTS Mr. Chairman, one of the equities to consider in crafting copyright law that addresses the work made for hire issue is the disparity that exists between the bargaining power of the performing artist and that of the record companies. The 1976 Copyright Act recognized this disparity and the fact that the value of a work could not be meaningfully estimated until after it had been exploited by providing for a termination right. Termination rights did not extend to works for hire. And so, as the Register of Copyrights has testified on this same issue: "Although sound recordings were being contemplated as copyrightable subject matter contemporaneously with the mid-1960's debate over works made for hire, they were never proffered as a category to be added to the list of commissioned works."" There is no reason to revise the determination made in the 1976 Copyright Act that performing artists deserve the same protection through termination rights as other authors. CONCLUSION The recent change in the law contained in the amendment to the Satellite Home Viewer Improvement Act of 1999 appears to many performing artists to be an unfair legislative effort to advance the record companies' legal position and to further enhance their real world economic advantages. This subcommittee should not allow that perception to persist. Action should be taken to restore the legal balance of this creative property right. Mr. Chairman, our board, officers, employees and members would be pleased to assist your subcommittee in achieving an expeditious resolution of this issue. We believe that we share a mutual objective -- protecting performing artists' historic right to their creative works. Sincerely, Marilyn Bergman President and Chairman of the Board, ASCAP