Testimony of Barry Bergman
President, Music Managers Forum
Before the House Judiciary Subcommittee On
Courts And Intellectual Property
United States House Of Representatives
Hearing on H.R. 1506
"DIGITAL PERFORMANCE RIGHT IN SOUND RECORDINGS ACT OF 1995"
JUNE 28, 1995
Mr. Chairman and members of the Committee, my name is Barry Bergman and I am President of the International Managers Forum, a personal manager and a music publisher. The International Managers Forum is an association representing the interests of personal managers and recording artists throughout our country. Our members consist of individual business people, who find, develop, nurture and guide the careers of recording artists, and whose entire income is dependent on those artists, and the receipt of proper remuneration for their artist's services.
I am grateful to have this opportunity to appear before you today on behalf of our membership who fully Support the urgent need for passage of legislation giving us a Digital Performance Right in Sound Recordings.
Our participation in these hearings is a major step forward for artists and their personal managers, because we are usually a small, individual voice that goes unheard due to the fact that until the formation of the I.M.F., there was no effective representation for artists and mangers by artists and mangers. Because we are a young organization, we do not have the funds to retain high priced attorneys and lobbyists to protect our interests. We therefore appreciate your invitation even more because it is a reflection of your willingness to hear tile merits of out presentation since it is your goal to have a fair and equitable bill for all parties.
We are aware of the existence of S.227 and only support that legislation to the extent that it shares common ground with H.R. 1506.
We also understand that ASCAP and BMI are currently in disagreement with the RlAA's position on exclusive rights. The IMF believes that all parties affected by this legislation should have equal rights, not exclusive rights. We support H.R. 1506 provided that it stipulates that the share of royalties allocated to the artists under this Bill be paid directly to tile artists without any party being able to reduce this revenue flow. The reason we advocate direct payment is to avoid the very real possibility of accountings which are so creative that the artist will not get paid. (For example, recent news accounts on the "Forrest Gump" movie which grossed $650 million dollars and has not turned a profit according to the film studio.) I will not cite the numerous horror stories where successful recordings resulted in the artist still being in the red. We hope that ASCAP, BMI and the RIAA will reach an agreement where fairness and reason will triumph.
The International Managers Forum strongly urges this committee to pass H.R. 1506. We expect this Bill to be written to protect the welfare and best interests of the creators of the music, most of whom are struggling artists, not a group of rich executives trying to get richer. For every successful superstar performer, there are thousands of young people trying to achieve the American dream working very hard making music and barely earning a living.
With the digital revolution upon us, the IMF believes that the time is now to end years of discrimination between performers and songwriters. The premise that a songwriter should get a performance right is already accepted. There is no reason why the performer's contribution should be deemed worthless. The public equates the success of the material with the performer.
If the artist did not render the performance, you would never hear the song. A song is a bunch of notes and chords and words that do not come to life until a voice interprets the lyrics. Music is an medium that has to be heard. Who gives the music its voice? The artist. If you deem artists' performances irrelevant and not worthy of compensation, you are basically going back to sheet music.
The essence of music is not the printed lyric and music. It's the performed melody and chorus. You can walk down any street in this great land of ours, stop any individual and ask the ln how they like a specific recording. Virtually all of the people asked will only mention the performer.
One of the most successful songwriters of the last ten years is a young woman named Diane Warren. Diane Warren has been named ASCAP songwriter of the year in 1990, 1991, and 1993. She has had her songs recorded on many best selling albums, earning her significant amounts of money in performance royalties. Yet Diane Warren can live in relative obscurity while many of the performers who have recorded her songs can't walk down a street without being stopped or recognized.
The music industry is based on the star system. Who are the stars? The artists. They are the ones who the public listens to, reads about, talks about, watches, buys, idolizes, and emulates.
Unfortunately, many artists do not enjoy long careers. Many of these short lived careers are critical in performing a piece of work that endures and continues to generate income many years later for others. The artist who created the work cannot participate in receiving payment because they lack a performance right.
Without a performance right, artists have been forced to negotiate with the writing community for a portion of their revenues, bringing conflict into many creative situations.
The IMF wants artists to share the same rights as songwriters and music publishers. Unlike Diane Warren, who is strictly a songwriter and does not perform her own music, many artists are also songwriters and music publishers. We must make Certain that the rights of all the creative people including artists and songwriters are equal.
Without a digital performance right, we are concerned with the way digital interactive broadcasts are designed to allow consumers home duplication of existing music. Our artists currently receive a royalty payment every time a recording is sold. Digital interactive transmissions have the potential to cut into these music sales and erode royalty payments at full value.
As these digital services develop and are advertised, the advertisements will feature the artists' names in the print medium and their Performances in the audio or audio/visual medium.
If these technological innovations permit the digital transmission of music without appropriate remuneration to the creative community, it threatens the very foundation of the Entertainment Industry, one of the largest growth industries in the dawning century of the information superhighway.
In a recent trade dispute with China, the United States was prepared to institute trade sanctions unless the Chinese government took a more aggressive and effective role in protecting U.S. Copyrights in China and preventing piracy. Obviously, the American government was aware of the tremendous economic benefits to our country and balance of trade as a result of the endeavors of our creative people. Similarly, this committee should not ignore the economic significance of the musical artists.
We must not lose sight of the larger context of this issue.
As technology permits new methods of distribution of music, the very creators in the musical art form should not be deprived of their only asset and for the artists this means their performance. By failing to grant our artists a digital performance right in sound recordings, the effect is to deprive them of a significant portion of their lives work.
The focus must not be on tile variety of distribution systems and the large corporations creating them, but on the fact that no matter how music is to be distributed there will always be only one Bruce Springsteen, one Whitney Houston, and one Garth Brooks.
In closing, Mr. Chairman, everyone on your committee should be commended for bringing this Bill, H.R. 1506 forward. The IMF is very supportive of your efforts and have attempted today to share our views concerning this legislation. We Cannot emphasis enough how essential it is that the artists' portion of royalties from this bill must flow directly into the artists' hands without any party being able to reduce this revenue for any reason whatsoever. Unless direct payment is made all your efforts to protect the artists will be impaired.
We applaud your intention to protect the creative community.
Once again on behalf of the lnternational Managers Forum, we appreciate the opportunity to appear before this distinguished committee today. Thank you for your time and attention.