Sour Notes in the Courtroom

The Federal Court in Manhattan's Foley Square had not been so lively since Estes Kefauver interviewed Frank Costello. A House Judiciary subcommittee, holding hearings on monopolistic practices in the broadcasting industry last week, wound up testimony from leading tunesmiths, lyric writers and librettists. Upstaging Committee Chairman Emanuel Celler were Librettists Alan Jay (My Fair Lady) Lerner, Oscar (South Pacific) Hammerstein II, Dorothy (I Can't Give You Anything But Love, Baby) Fields and Otto (Roberta) Harbach; Composer Stanley (What a Difference a Day Made) Adams, Occasional Songwriter Billy (Barney Google) Rose. Their statements were all designed to show that they and many of their famous colleagues were being put out of business by the organization known as Broadcast Music, Inc. (BMI).

The arguments all go back to the fact that air is free and music in the air is fleeting. Composers could almost always collect cash for sheet music and later for recordings, but collecting for public and broadcast performances was more difficult. For the past generation the American Society of Composers, Authors and Publishers (ASCAP) has been handling such collections, the largest share of them in the form of flat annual fees from broadcasting stations, which nowadays amount to as much as $18 million a year. The bite was painful, and in 1939 broadcasters raised the cry of "monopoly" against ASCAP, got together and formed a rival agency, BMI. The two have been scrapping ever since, e.g., 33 ASCAP composers are now suing BMI for $150 million.

Songwriters' Case. The accusations brought in unsworn testimony by the ASCAPotentates: 1) BMI (which is owned by 600 broadcasters, including all major networks) owns or subsidizes more than 1,000 music publishers and through them has influence over rising entertainers; 2) broadcasters also have a heavy finger in the record pie through RCA Victor (related to NBC) and Columbia (a CBS subsidiary); 3) wherever possible, the stations plug BMI tunes, ignore ASCAP tunes on the "sinister" premise that (as a BMI pamphlet once put it) "the public selects its favorites from the music which it hears, and does not miss what it does not hear." One method, testified Songwriter Adams, was in the form of memos to radio stations, saying: "This is a BMI number--meaning it is your own music. Be careful of the other side of this disk. It is not a BMI tune."

The result, claimed ASCAPers, has been the rapid lowering of public taste in music--and the rise of rock 'n' roll. Said Veteran Librettist Harbach, 83: "The greatest melodies of the past would never have had a chance to reach the public if they were written now instead of then. Would Smoke Gets in Your Eyes be allowed by broadcasters to be heard instead of Be-Bop-a-Lula? Could Indian Love Call penetrate the air waves which are flooded with Houn' Dog?"*

BMI's Case. BMI President Carl Haverlin offered statistics to show that music by ASCAP composers is far from being pushed off the air, that approximately 85% of performances on TV and 75% on radio today are of compositions licensed by ASCAP. Added Haverlin: 1) BMI's revenues are only about one-third of ASCAP's; 2) the same charges had been made in 1952 to the Department of Justice, which investigated BMI and took no action; 3) ASCAP itself had been found guilty of monopolistic practices by a federal court in 1948, after which it had to change some of its business procedures.

At week's end both disputants exited to the same tunes to which they entered, with Showman Billy Rose grinding out a final bump for ASCAP in a parody of Sixteen Tons:

Sixteen songs and what do I get?

Another day older and deeper in debt

The songs I write are destined to die

Unless they are licensed by BMI.

* However, Rock Around the Clock, title tune of the film currently causing rock 'n' roll riots in Europe, is an ASCAP tune.

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