PAYMENTS TO TRUST FUND PART VIII. STUDY OF "PERFORMANCE RIGHTS" POLICY AND SUGGESTED LONGRANGE PLANS It is absolutely essential that a specific approach to the economic position of musicians be evolved by the federation and all efforts directed toward implementing this. Basic to any relief from or control of automation in music is the establishment of performance rights for the individual musicians. Three methods are involved: 1. Negotiations and contracts by the federation. 2. Public opinion. 3. Court and congressional action. Control must be established and payments negotiated on the basis of individual performance rights. When this has been done, the federation or any other guild acting as bargaining agents, can negotiate and enforce payments to musicians and performers from the great exploiters of recorded music (jukebox, disk jockey, etc.) who, as of now, pay practically nothing for the musical product that they sell, and thereby put the live performer at an impossible disadvantage, pricewise, when competing for the advertising or entertainment dollar. Point I. Dealing with the establishment of individual performance rights. The present policy of the federation in regarding residual rights as contraetual provisions the property of the federation to utilize as it sees fit, has its limitations. 1. The great evil of commercial exploitation and those who make enormous profits therefrom cannot be touched or controlled by this approach. 2. There is no precedent in common law, copyrights, or equity for group rights of this nature except as based on individual rights, with the group acting as agent. (See ASCAP, Composers' Guild; AFTRA.) 3. Individual rights (performance) established by common law, contract, custom, court action, or congressional action, can be logically sustained morally, legally, and economically and compensation due under such residual rights enforced by contract and in the courts. We in the performance field, as creative artists, are in the same position as regards mechanical reproduction of our performances, as were the authors, writers, and composers, with the advent of the printing press. Prior to the invention of the printing press there was no possibility of exploitation for profit of creative works of writers and composers. When the printing press made such exploitation possible, common law, moral and ethical justice recognized the property rights of the creative artists in their work and gave them protection under copyright law. No one claims that the printing press is an evil to be restricted but neither does anyone question the right of an author to royalties from the sale of his book, or the playwright payments for the performance of his play. In the case of composers and song writers, it has been established that they are entitled not only to royalties on the actual physical copies of their music sold, and records produced and sold, but also to royalties on profits from the public performance for profit or commercial exploitation; these latter royalties negotiated for and collected by their performance rights-Societies ASCAP and BMI. The jukebox industry must eventually come under this ruling by concerted action by all concerned whose services are involved.) We now have the same situation as regards the commercial use of performers' services through recording on records, tape, sound track, and film. Prior to the invention and development of the means by which to capture and reproduce musical acting and other creative performances on record and film, the performer had to actually be present and perform a physical and mental service which could be evaluated and paid for accordingly. Now with the advent of and advanced development of recording, filming, and network techniques, thus expanding and perpetuating creative performances of musicians, singers, and actors, and permitting the commercial exploitation of their performances by means of nationwide use (networks, jukebox. etc) reuse and transfer to another medium (pictures to TV, pictures to records, etc.) it is absolutely essential that performers (actors, singers, musicians) be protected in their performance rights and compensated for the commercial exploitation of their creative talents and services. No one can deny that the mechanical reproduction of music has made possible the widespread enjoyment of music of every type, from hillbilly to operatic, from jazz to symphonic, and a new and profitable industry measured in the billions of dollars has now been developed. However, four specific evils have resulted from the failure to recognize individual performance rights and to provide compensation for the commercial exploitation of them. 1. The recording musician has not received wage raises commensurate with any standard that can be compared. (Cost of living, per capita income, wage raises in allied crafts, hourly rates in any industry, profits and gross national income of recording industries.) 2. He has not been protected in his residual rights and therefore finds himself unemployed or out of work and listening to repetitions of his own performances, weeks, months, and years after the performance was originally done and paid for (and not too well paid for either). Here he finds himself out of work, displaced by his own performance and receiving no compensation for the continuing use and reuse of his services; at the same time large sums of money are collected and a tremendous industry thrives on his creative talents and efforts. 3. Unemployment generally in the music field, among those recording and competent to record, as well as those displaced by recorded music, has resulted from the unbridled use of recorded music commercially, without any pretense of payment for this commercial exploitation. This situation might be compared to the unemployment that ensues when the products of free workmen have to compete pricewise with those of slave labor; or the impossible situation of the merchant who pays for his goods to try to meet the price of the one who deals in stolen goods. It is utterly ridiculous and immoral for the movie industry which grossed $1,945 million to pay only $4 million or less than 1 percent of production costs and less than two-tenths of 1 percent gross income for music which is essential to their product. Television and network radio musicians earned only $22 million in 1954 or less than 2 percent of the more than $1 billion in gross revenues in the industries. The picture is even worse and more unjust in the case of the multimillion-dollar jukebox industry and the quarter billion dollar record industry, the $179 million network and independent disk jockey business, all serviced by the records for which the recording musicians were paid $3,751,000 and the trust fund $1,277,000, for a total of $5,028,000 in 1954. This does not include the network radio and TV industries whose gross revenues approach the billion dollar mark-although only $22 million was paid out in musicians' salaries in 1954. Unemployment must result when the live musician competes against his own and his brother musicians' recorded services for which inadequate payment and in many instances no payment has been made. 4. The fourth evil, and perhaps the most far reaching in its impact upon the culture and musical well-being of our country, lies in the fact that with diminishing opportunities to be heard and comparatively no future to look forward to in music as a profession, the young musician has no incentive to develop his musical talents and abilities and no opportunity to gain the experience, skill, and versatility necessary to meet the high standards and tremendous requirements of the recording professional musician. Unless these trends are reversed and opportunity and incentive provided, we can look forward to a diminishing and drying up of the source of talent and skill necessary to sustain this industry and furnish the music for the enjoyment of everyone. We know that it has been the policy of the federation that all payments negotiated for re-use, transfer of services, and commercial exploitation by means of recording, should go to benefit the entire membership of the federation and not to those doing the work. It is plain that this policy has not been able to reverse or even to stem the tide of unemployment in music. Neither has it been able to protect the fast diminishing number of professional recording musicians in their wage scales or to recover in combined salaries to musicians and payments to the music performance trust fund, adequate compensation in relation to the amount of music used and the gross billings and net profits derived from the commercial utilization of music as a whole. It is our recommendation that the federation immediately recognize performance rights of the individual and take steps to establish these rights by: 1. Negotiations and contracts providing for: A. Reuse payments in all fields. 1. Transcribed radio. 2. Television film formula. 3. Spots and jingles radio and TV. B. Transfer of services in all fields. 2. Television to motion picture. 3. Motion picture sound track to records. 4. Transcribed shows to records. (This we now have.) 5. Public performances, concerts to records, etc. (This we now have.) 6. Simulcasts made from live or filmed performances. (This we now have.) C. Wage raises in the record industry to go to the musicians instead of to the trust fund. 78497-56—7 II. A concerted effort with actors, singers, writers, directors, and other creative per ormers to change copyright law to include performance rights. A. By contract and precedent. B. By common law and equity. C. Court actions in specific well-chosen, well-prepared cases. D. Public opinion. E. Congressional action. III. A concerted effort by all creative artists, musicians, singers, composers, authors, arrangers (AFM, AFTRA, ASCAP, ASMA, CGA) to establish royalty rights for their members in the jukebox industry profits, and commercial use of recorded performances and services on record, transcription, sound tracks and film by network and independent radio and TV stations. In summing up, the following points are obvious: The federation's present position of "group" or "contractual" rights in recorded services, established by contracts between the federation and employers is a weak one. The legality of payments to the trust fund under this theory is being questioned by both the employers (record company stockholders suits) and recording musicians. The federation under this theory has been unable to deal effectively or directly in any way with those employers in the entertainment and advertising industries who exploit "recorded music" to their own benelit without bearing any of the legitimate cost of the music they sell, with the following results: 1. Inadequate wage scales for recording musicians. 2. Inadequate share in gross payments, salaries to musicians and payments to the trust fund combined, in relation to the gross and net incomes returned to those exploiting recorded music for commercial gain. 3. Steadily diminishing work opportunities in the performing of music while industries based on musical performances and talent are growing at a fantastic rate. At this point it seems that the federation has an alternative. The establishment of "individual performance rights" and elimination of present trust fund policies which would strengthen the federation's position legally, morally and economically. Legally by eliminating a "cause for action" in the employer's suits, (record company suits under Taft-Hartley Act) and possible action by federation members or their heirs who believe that they are being deprived of "property rights." Morally by taking a stand consistent with past federation policies in regard to reuse, etc., consistent with the position of allied crafts, and consistent with basic common law and justice, "that the laborer is worthy of his hire," as opposed to the "Communist socialistic" theory that the group is entitled to the "lion's share" of the individual's return for his services. Economically because a new approach based on the "individual's rights" and the concerted efforts of our federation, its members, and other crafts and individuals involved, would give us a new and different opportunity to attack the evils of unrestricted and unpaid for "recorded competition" at its source. Thus, providing for adequate wages and reuse payments for the musicians who recorded talents make these industries possible, returning a fairer share of the advertising and entertainment dollar to the music profession; and elimination or lessening of the unfair disadvantage that the live musician now faces in attempting to sell his services in competition with recorded series that have not been paid for. PART IX. CONCLUSIONS It is an undeniable, although a cruel fact, that comparatively few musicians are needed to supply the musical needs of this country, due to technological advances in the recording and transmission of music. At the same time it is clear that the professional standards required of those who do the recording and play for the networks have increased to the point where comparatively few performers are able to meet these standards. The whole theory underlying the American system of capitalism, and basic to the unprecedented increase in our standard of living, is that through utilizing the machine and technological progress it has been possible for each workman to turn out more and better work in less time, thus lowering the unit cost and increasing the productivity of each workman. The members of local 47 believe the function of a labor union is to enforce fair dealing among its members, to negotiate for proper working conditions, and to endeavor to see that its working members, individually and collectively, receive a fair share of the increased profits resulting from their increased productivity. It is also conceivably within the function of a union to provide for and stimulate retraining in other skills for those replaced by technological progress. However, basically this should be the responsibility of government on the national as well as local levels, and of the individual himself. Whenever the attempt has been made to compensate for displaced workers by restrictive codes limiting productivity or requiring additional employment; thus counteracting the economic advantages of increased productivity per manhour through the use of new techniques and inventions; this has stirred up public resentment and brought about corrective legislation. It has become clear, as the result of this intensive survey and study, as well as other surveys on the subject (Research Company of America-federation 20 percent tax drive) (S. Stephenson Smith's The Economic Situation of the Performer from the Julliard Review, fall 1955), that the economic situation and employment opportunities of the musician today are very bad and getting steadily worse. This is true not only in the federation generally but also in Los Angeles and New York, where most of the remaining employment is located. (See chart 8, p. 75; Employment and Earnings of Musicians in United States and local 47.) Many conclusions can be drawn from the figures and facts assembled here and in the accompanying report by Facts Consolidated. About 20 percent of the listed, dues-paying members of the federation, and a like percentage of local 47's members are depending solely on musical employment for their income. About 50 percent, nationally, and 56 percent in local 47 earned nothing in the music profession in 1954. According to the United States census report of 1950, there were 6,523 males in Los Angeles and Orange Counties who identified themselves as musicians or music teachers, and of this number 779 were unemployed. At the same time, 1950, local 47 counted over 12,000 members. It would therefore seem that most if not all of the 56 percent totally unemployed (musically) of local 47, were employed in some other field and did not consider themselves musicians in the professional sense of the word. The members of local 47 have always been regarded as "bloated plutocrats” when it came to the amounts of money earned by musicians and their work opportunities. Earnings of local 47's members went from $6,200,000 in 1939 to $19,500,000 in 1954. A healthy increase someone may say. But the 19-million-plus was divided among four times as many members, and during the same period the cost of living rose 91 percent, general wage scales rose 198 percent, and personal income per capita rose 229 percent. The earliest membership figures available that are reasonably accurate show local 47 membership in 1945 as 6,014 and earnings of $14,280,000, as compared to a membership in 1954 of 14,828 and earnings of $19,500,000. Membership increased 147 percent, earnings increased 33 percent. Between 1950 and 1954 earnings per member increased 5% percent while cost of living increased 12 percent and personal income per capita rose 18 percent generally. In the breakdown on the attached table B, total income in the fields of recorded music (radio, TV live and filmed, transcriptions, records and motion pictures) increased about $1 million between 1950 and 1954, or less than 10 percent. In the remaining fields of employment (not touched by trust fund policies), (night clubs, theaters, casual dance), earnings increased $2,789,000 or 48 percent during the same period. Let us look at earnings in the fields of radio (live and trans) and TV (live and filmed), where the amount of work done in Los Angeles is supposed to be a contributing factor to the decline in radio and TV employment in the rest of the country. We find that total earnings of members in local 47 in the combined fields of radio and TV live and filmed, dropped between 1951 and 1954, and reports on the first half of 1955 show a further decline. Thus in the fields where the trust fund does not injure us, local 47 earnings between 1950 and 1954 increased 48 percent. In the fields where the trust fund policy governs, we gained only 10 percent, more than dissipated by the depreciation in the value of the dollar during this time and the increase in membership. During this period, 1950 to 1954, contributions of more than $2,500,000 were made to the trust funds based on local 47 members' services. In 1955, over $1 million in "rescoring" fees for theatrical films sold to TV will be diverted to the trust fund from 47's members in addition to the royalty payments on records, 5 percent formula on TV film, etc. |