4123
Before the COPYRIGHT OFFICE LIBRARY OF CONGRESS Washington, D.C.
In the matter of: Docket No. D stribution of the 2001-8 CARP CD 98 — 99
1998 and 1999 Cable Il
Royalty Funds II
Room LM-414 Library of Congress First and Independence Ave. S.E. Washington, D.C. 20540
Monday, May 19, 2003
The above-entitled matter came on for hearing, pursuant to notice, at 9:30 a.m.
BEFORE:
THE HONORABLE CURTIS E. Von KRAK Chairman THE HONORABLE JEFFREY S. GULIN Arbitrator THE HONORABLE MICHAEL D. YOUNG Arbitrator
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APPEARANCES:
On Behalf of the Pro ram Su liers:
GREGORY OLANIRAN, ESQ ROBERT L. ESKAY, ESQ SARAH K. JOHNSON, ESQ MICHAEL E. TUCCI, ESQ Stinson Morrison Hecker, LLP 1150 18th Street, N.W. Suite 800 Washington, D.C. 20036-3816 (202) 785-9100
On Behalf of the Joint S orts Claimants: Counsel for the Office of the Commissioner of Baseball ROBERT ALAN GARRETT, ESQ JAMES COOPER, ESQ MICHELE T. DUNLOP, ESQ RONALD A. SCHECHTER, ESQ JULE SIGALL, ESQ CHRISTOPHER WINTERS, ESQ MICHELE WOODS, ESQ Arnold R Porter 555 Twelfth Street, N.W. Washington, D.C. 20004-1206
THOMAS J. OSTERTAG Senior Vice President 6 General Counsel Office of the Commissioner of Baseball 245 Park Avenue New York, New York 10167 Counsel for the National Basketball Association, National Football League, and National Hockey League PHILIP R. HOCHBERG, ESQ PIPER RUDNICK, ESQ Verner, Liipfert, Bernhard, McPherson & Hand 901 Fifteenth Street, N.W. Washington, D.C. 20005
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On Behalf of the Joint Svorts Claimants: (cont.) Counsel for the National Collegiate Athletic Association RITCHIE THOMAS, ESQ
JUDI TH JURIN SEMO I ESQ Squire, Sanders 8 Dempsey, LLP 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004
On Behalf of the Public Television Claimants:
TIMOTHY C. HESTER, ESQ RONALD G. DOVE, ESQ
RUSSELL JESSE I ESQ Covington & Burling 1201 Pennsylvania Avenue, N.W. Washington, D.C., 20044-7566
PAUL GRECO, ESQ Public Broadcasting Service 1320 Braddock Place Alexandria, Virginia 22314
On Behalf of the American Societv of Comoosers. Authors and Publishers:
I. FRED KOENIGSBERG, ESQ CAROL A. WITSCHEL, ESQ White & Case 1155 Avenue of the Americas New York, New York 10036-2787
JAMES M. McGIVERN, ESQ SAMUEL MOSENKIS, ESQ ASCAP One Lincoln Plaza New York, New York 10023
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On Behalf of BMI:
MICHAEL J. REMINGTON, ESQ ADAM L. BREA, ESQ JEFFREY J. LOPEZ, ESQ PHILIP J. MAUSE, ESQ Drinker, Biddle 6 Reath, LLP 1500 K Street, N.W. Suite 1100 Washington, D.C. 20005
MARVIN J. BERENSON, ESQ JOSEPH J. DiMONA, ESQ MARC D. OSTROW, ESQ Broadcast Music, Inc. 320 West 57th Street, New York, New York 10019
On Behalf of SESAC Inc:
JOHN C. BEITER, ESQ Loeb 6 Loeb 45 Music Square West Nashville, Tennessee 37203
I'ATRICK COLLINS, ESQ SESAC, Inc. 55 Music Square East Nashville, Tennessee 37023
On Behalf of National Public Radio:
NIKI KUCKES, ESQ Baker Botts LLP The Warner 1299 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2400
NEAL A. JACKSON, ESQ GREGORY LEWIS National Public Radio 635 Massachusetts Avenue, N.W. Washington, D.C. 20001
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On Behalf of the Canadian Claimants Grouo:
L. KENDALL SATTERFIELD, ESQ RICHARD M. VOLIN, ESQ Finkelstein, Thompson 6 Loughran 1050 30th Street, N.W. Washington, D.C. 20007 (202) 337-8000
On Behalf of the National Association of Broadcasters:
JOHN I. STEWART, ESQ PARUL DESAI, ESQ KAREN C. HERMAN, ESQ VALERIE HINKO, ESQ MICHAEL LAZARUS, ESQ Crowell & Moring 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 (202) 624-2926
HENRY L. BAUMANN, ESQ BART STRINGHAM, ESQ National Association of Broadcasters 1771 N Street, N.W. Washington, D.C. 20036 Counsel For Devotional Claimants On Behalf of the Devotional Claimants:
FRANK KOSZORUS, ESQ Collier Shannon Rill & Scott 3050 K Street, N.W. Washington, D.C. 20037
JAMES CANNING, ESQ Our Own Performance Society 400 2nd Avenue, Ste., 22C New York, New York 20007
RAUL GALAZ, ESQ Independent Producers Group 2318 Sawgrass Ridge San Antonio, Texas 78258
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On Behalf of Christian BroadcastincI Network, Inc.: and the Devotional Claimants:
BARRY H. GOTTFRIED, ESQ CLIFFORD M. HARRINGTON, ESQ ShawPittman 2300 N Street, N.W. Washington, D.C. 20037
On Behalf of Coral Ridae Ministries Media, Inc.; Oral Roberts Evancrelistic Association:
GEORGE R GRANGE I I i ESQ KENNETH E. LIU, ESQ Gammon & Grange, P.C. 8280 Greensboro Drive Seventh Floor McLean, Virginia 22102
On Behalf of KNLJ (New Life Evangelistic Center, Inc. ):
JOHN H MIDLEN JR i ESQ Midlen Law Center 7618 Lynn Chevy Chase, Maryland 20815
On Behalf of the Home Shovvincr Network. Inc.; Indeoendent Producers Grouo; Home Shoooina en Esoanol and AST LLC; and Crvstal Cathedral Ministries. Inc.:
ARNOLD P. LUTZKER, ESQ CARL H SETTLEMEYER i ESQ Lutzker & Lutzker 1000 Vermont Avenue, N.W. Washington, D.C. 20005
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I-N-D-E-X
WITNESS DIRECT CROSS REDIRECT RECROSS
Jeffrey Lyon By Ns. Witshel 4135 By Nr. Garrett 4186 By Nr. Jesse 4219 Frank Krupit By Nr. Mause 4231 By Mr. Stewart 4288 By Mr. Olaniran 4370
E-X-H-I-B-I-T-S
Exhibit No. Description Nark Reed
NAB 98-99
23-X BMI Website Document 4309 4314
JSC
32-X Sports Telecasts 4334 4342 33-X Cue Sheets 4344 4353
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P-R-0-C-E-E-D-I-N-G-S (9:37 a.m.)
JUDGE von KANN: Good morning, everyone.
Come to a nice sunny Monday. Do we have the exhibit list from everybody maybe updated or not? I'm seeing
some blank expressions.
Well, why don't you try to get us tomorrow, if you can. Bring everybody up to date. We'e trying to do that the Monday of each week. Some
10 parties. Okay. Thank you. Thank you. Yes?
MR. GARRETT: We do have some additional copies of the binder that I had given you last week, the one that had the various items in order. Would you like that'?
JUDGE von KANN: Yes, that would be great.
17 For the other members of the panel, that's good.
18 MR. GARRETT: Here are the two additional
19 ones. It's identical to the one that I had given you
20 last week. The one difference is that the first page
21 we noticed on yours there was a little sticky thing 22 that had to pick it up.
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JUDGE von ~: A sticky thing. Okay.
MR. GARRETT: This is unsticky.
JUDGE von KANN: Unsticky. And while we'e sort of on the subject of settlements, I think it might be good for the panel to issue an order just
confirming that we'l have a hearing 2:00 p.m. on May
29, as we discussed, concerning how the settlements
with NPR and the Devotional Claimants should be received into the record.
10 And I will issue that today so that they will have notice of it and will indicate that if all
12 parties reach an agreement on that matter before the
13 hearing date, then they needn't come. So we'l see if
that results in an agreement or whether we have to
15 hear everybody out.
16 The only other thing I guess seems
17 appropriate on a music day, I have tickets for the
18 opera tonight which starts at 7:00. So it would be
19 helpful to me if we don't go pst 6:00 tonight. I
20 don't know what the schedule is going to be, but if
21 it's possible to conclude before that, it would be
22 great.
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Okay. Yes, Mr. Dove?
MR. DOVE: Your Honor, I would like to briefly address the panel on a point raised by Mr. Garrett on Friday relating to the termination of the music share.
JUDGE von KANN: Okay.
MR. DOVE: Mr. Garrett made it clear on Friday that it is the position of the Joint Sports Claimants to rapidly take the music award off the top.
10 The panel should essentially determine separate music awards for each of the claimant categories.
Upon refection of the weekend and after
13 rereading the prior decisions of the CRT and the CARP
14 on this point, Public Television Claimants are
15 convinced that this proposal is a dramatic departure
16 from past precedent, is unfair to the parties that
17 have arrived on that precedent, would significantly
18 increase the cost and complexity of this proceeding.
19 Every single proceeding in which an award
20 has been published, 1978, '79, '80, '83, '89, '90,
21 '91, and '92, the music share has been taken off the
22 top. In no cable case that I am aware of have the
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parties litigated individual music shares. And so the Public Television Claimants, at least, relied on this 20-year history and past precedent in this filing their direct case in this case.
We believe it is unfair now in the middle of these proceedings to part from this long-established precedent and to essentially force the parties within the severe time constraints of the rebuttal phase to litigate what would essentially be
10 six separate Phase II, miniature Phase II proceedings within tbe context of this larger Phase I proceeding.
12 So we would just simply ask for some sort
13 of guidance from the panel as soon as possible so that
we can adequately prepare our case because we really
15 feel this puts us in a significant bind given our
16 reliance on past precedent.
17 Thank you.
18 JUDGE von KANM: I don't think we want to
19 get too deeply at the moment into an argument on this 20 subject, but maybe tbe panel can discuss it a little
21 bit and we can get back to you shortly with any
22 reactions we have.
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Obviously, for one thing, this is something that can be addressed in the proposed findings and conclusions, but, of course, your point
is if you need to gather evidence on. it for the rebuttal phase, you need to get going.
So let us give that a little consideration. I think they have not had a chance to
go back and look at whether the parties said anything about this in their direct case cover memos.
10 I don', frankly, recall it one way or the other. Each of the parties put in a brief statement
12 of position, mostly indicating what you were claiming.
13 I don't really recall whether any of those memos addressed this point.
15 And so let the panel discuss it a little
16 bit. I think we see the issue. And we'l try to get
17 back to you as soon as we can.
18 Anything else before we begin?
19 (No response.)
20 JUDGE von HA5K: Okay. Ms. Witschel?
21 MS. WITSCHEL: Thank you. The Music
22 Claimants call Jeffrey Lyons.
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THE REPORTER: Mr. Lyons, raise your right arm, please. Whereupon,
JEFFREY LYONS
was called as a witness by counsel for the Music Claimants and, having been first duly sworn, was examined and testified as follows:
THE REPORTER: Thank you.
MS. WITSCHEL: Good morning, Mr. Lyons.
10 DIRECT EXAMINATION
BY MS. WITSCHEL:
12 Q Would you state your name and your
13 professional affiliation for the record? I'm Jeffrey Lyons. I'm the film and
15 theatre critic of WNBC in New York and the film critic
for KNBC in Los Angeles.
17 Q Would you briefly describe for us your
18 education, work experience?
19 I was born in New York. My father was
20 Leonard Lyons, the most renowned Broadway columnist of
21 his era. I grew up in a show business and journalism
22 family. My godfather was a playwright. My brother'
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godfather was Clifford Odetts, another great playwright. I went to journalism school, University
of Pennsylvania, went to Syracuse Law School, studied
acting at Lee Strasburg.
And thinking of judging the plans for the evening, I spent three seasons signing in the boys'horus
at the Metropolitan Opera before my voice
changed. And I was a Spanish-speaking truant officer.
And then in 1970, I became the film critic at WPIX TV
10 in New York and two years later took over as the Broadway critic as well.
12 And over the years, I'e worked for ABC
13 television, for CNBC, for MS-NBC, for PBS.
co-hosted sneak previews on PBS for 12 seasons, the
15 most watched movie review show in the country. I also occasionally do pro bono work doing
17 Spanish and sometimes English play by play for the
18 Boston Red Sox. And I'e worked at TV stations in
19 Hartford and Baltimore and am open to any other jobs,
20 too, in that field.
21 JUDGE YOUNG: But you don't practice law?
22 THE WITNESS: No, I do not. No. Law
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school was great training. My father went to law
school as a deputy attorney general of New York State,
perhaps honorary but a card-carrying one. My
brother's godfather was Justice William O. Douglas.
He's named after him. So we have all the bases covered here. I'e also written several books. I wrote a book called "101 Great Movies for Kids." And I'e
written two baseball trivia books. A third one we
10 hoes will be published next March, in time for the
next baseball season. The books are called "Out of
12 Left Field" and "Curve Balls and Screwballs,"
13 published by Random House. And I'e lectured on baseball here at the
15 Smithsonian and at the Baseball Hall of Fame. And,
16 you know, that's basically where I am right now.
17 BY MS. WITSCHEL:
18 Q Is that all?
19 Actually, that's not all.
20 (Laughter.)
21 MS. WITSCHEL: That's good enough.
22 THE WITNESS: We'e talking about
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qualifications now. I'e seen about 30,000 movies and about 1,000 Broadway shows and have reviewed 15 or 16
thousand movies and shows and appear 5 or 6 times a
week on NBC in New York and 2 or 3 times, to my knowledge, although I don't get to see them all the
time, on KNBC in Los Angeles.
So I'e done 20,000 television reviews
over tbe various stations in 33 years so far.
BY MS. WITSCHEL:
10 Q Would you tell us the purpose of your testimony for this proceeding?
12 The purpose of my testimony for this
13 proceeding is to show how music has changed, how it is
14 now a vital part of the equation of movies, of our
15 consciousness of movies, of the marketing of movies,
16 of the expansion of the whole equation of selling of
17 movies, how it has reached out into record stores,
18 into CD sales, into DVD sales, how without music,
19 without tbe prevalent element of music, movies would
20 not be as much in our conscience as it is today.
21 You walk into a record store today or HMV
22 store or something like that. And you'l see movie
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displays, soundtracks. That never was the case years ago. That is an equation that has to be preserved. Music is as much a part of the selling of movies as any other element; in fact, more so than
ever before. That's why I'm here. I'm also here representing the three performing rights
organizations: SESAC, ASCAP, and BMI.
Q Would you tell us just briefly what are
some of the elements that make for a successful movie?
10 Well, they'e all too rare, of course. I will say the night before I became a critic, Ruth
12 Gordon said to me, "Think twice before you knock
13 somebody else's work." I always have.
The elements that make a movie in broad
15 terms are good casting, a good story to tell, good
16 actors, an intelligent director, something that' unique or something that if not unique is an homage to
18 something worth redoing in another forum.
19 Each movie is different. Each movie is a
20 challenge and a good score and something that makes
21 you realize that you have given money and time and two
22 hours later, hopefully no more than two hours or so,
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you are a better person for having seen that movie or you have been entertained or you can forget your troubles. Each movie is different, but those are the basic broad elements of what goes into a good movie.
Q How does the film industry recognize the importance of music? Well, think of all the Academy Awards.
When. I was in fifth grade, we had a boy named Marvin
Hamlisch in our class. Whatever happened to him? He
10 won three Oscars in one night. But what's important
about that is it's not just for one work. He won it
12 for two different movies.
13 He won the Oscar for adaptive score for
The Sting, but he also wrote The Way We Were. They
15 give Oscars to composers. And that shows that music
16 is a vital, important part of movies. It also goes over into television, too.
18 Music is so important. There's only one show on
19 television that doesn't have music, and that is 60
20 Minutes. Every other show just about has music.
21 Music is an important part of television and of
22 movies .
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If I could direct you to your testimony
over at pages 3 and 4, you talked a little bit about the different ways that music is used in movies.
Would you just briefly summarize that? How is music used in different ways in movies? It depends on the film, of course. But music can set a tone. Music can advance a story.
When no dialogue is spoken, music can alert the viewer, hopefully not too much, hopefully not giving
10 it away, but alert the viewer that something important is happening.
12 I'l give you a television example, -- it 13 applies to movies as well -- Law and Order, which is
on at any given hour of the day. When somebody says something important or critical, the music begins to
play. And the trick is to do it in a subtle way so as
17 you'e not leading the viewer along, but you'e
18 showing them that this is important.
19 Music can also set a tone. Music can also
20 put you in a particular mood, particularly when it'
21 used at opening credits. Music can show you who the
22 good guy is, who the bad guy is.
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We all grew up watching Peter and the
Wolf. You knew when the hunters were coming. You
heard us. You can picture that music in your mind
right now. That is what the role of music is. It is another character in the movie. In some movies, it is more of a character than in others. In some movies, it is background. It is ambiance. It can set a time. It can set a place. It can set a mood.
10 When you hear the music for A Man and a
Woman, to use a farm film, for example, you know
12 you'e in for a beautiful romance or a romance movie.
13 But when you hear music from a certain type of
adventure movie, you know to saddle up and ride along.
15 So music sets the mood. It sets the tone.
16 It lets you know basically what you'e in for.
17 Can you give us some examples of theme music used in movies?
19 Well, for instance, Raiders of the Lost
20 Ark, MASH, Jaws, movies we'e going to see soon,
21 Rocky, The Godfather. You say those names to anybody
22 who has gone to a movie or turned on TV and seen a
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movie on TV, and a few bars of that may come to their mind.
So music can be the signatory, often is the signature for a movie. Whether it is bottled music or whether it is newly created music, when it is done well, it is something that enlightens us and something that adds quality to our lives.
So music is another character in the
movie. That's why they give Oscars for music. I wish
10 they wouldn't perform all of the songs in their
entirety at each Oscar performance, but that's why
12 they do that, because it is a vital, vital part of the
13 equation of movies and television.
Q What is Music Claimants exhibit 8 and 9?
15 Music Claimants exhibit 8 and 9. Here it
16 is. Okay. Can I show it now or explain it? Eight
17 and 9 is interesting because the movie that we'e
18 going to see is Jaws, but we are going to see a scene
19 twice.
20 Jaws is a perfect example of a movie where
21 the music lets you know that death is out there in the
22 water. And it is so pervasive in our lives that how
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many times have you been in a conversation when something ominous is coming around the corner and somebody will say, "Duh duh duh duh duh duh"? It's a simple song, but it's a work of genius because it sets the mood. It lets you know that, uh-oh, danger is awaiting there.
And what was amazing was I remember my first reaction when I saw Jaws the first time. I never heard the music before. I try not to listen to
10 a movie buzz before a movie opens.
What's up there on the screen when I'm in
12 the theatre for the first time is what I want to see.
13 And I remember the moment I heard that music, it
14 scared me. And I told Steven Spielberg, "I'e never
15 been in the ocean since Jaws," true story. Fish go
16 where they go. I go in the pool.
17 Music is -- and it may not have been that
18 way were it not for that music. So should we show the first -- let's look at a scene from Jaws without the 20 music. You will see. It will be the -- it will be 21 somebody swimming. That's about it. Where is this?
22 Let's see. This looks like home movies,
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doesn't it'? Early on we don't know what has happened,
but this is something we all know about. We have seen this movie. But without the music, it's -- remember,
not much dialogue is being spoken, certainly not here.
And it looks like outtakes. It looks like rough footage. But that's exactly what was in the movie without the music.
And you don't know that that is a shark's eye view because you don't hear the music. It is like
10 an underwater cameraman taking home movies. (Whereupon, a videotape was played.)
THE WITNESS: But now let's listen to it
13 with sound. This comes as no surprise to anybody, but
you know that this conveys movement. It conveys
15 death. It conveys a pending due. And it conveys the
16 helplessness of anybody up there.
17 (Whereupon, a videotape was played.)
18 THE WITNESS: Getting faster and closer.
19 You can see the teeth. You can see the jaws. That'
20 why it's a work of genius.
And anybody who swims in the ocean now I
22 think is nuts. I wouldn't have held that way had it
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not been for the music, a critical element.
BY MS. WITSCHEL:
Q You mentioned the use of music in connection with character identification. Right.
Q What is Music Claimants exhibit 10?
Music Claimants exhibit 10, which we will see in a minute, is a little picture called the Raiders of the Lost Ark. I remember seeing that movie
10 and going -- my wife did not see it that night.
And I went home. And I had a reaction
12 I'e never had in any kind of picture like that
13 before. She didn't mind. I retold her every single scene scene by scene. I remembered every single scene of that movie.
16 And along the way, I remember humming the
17 tune to her, which has now become so familiar. And
18 that was another element of the movie. It identifies
19 the hero. It identifies the fact that this was a 20 throwback to the 1930s movie serials, which today seem
21 delightfully corny.
22 But Steven Spielberg brilliantly meshed
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the music with the action and the visuals to make an
experience that made you think, "Oh, my gosh. This is something totally new. I have never seen an adventure like this." Without the music, that would not have been possible. Let's look at a scene from the -- you know what music is coming, don't you? (Whereupon, a videotape was played.)
THE WITNESS: What the music is saying is
10 obviously this is the hero. This is the old-fashioned
good guy hero that was so prevalent when our parents
12 went to see serials or grandparents went to see
13 serials every week in the theatres in the 1930s and
14 '40s.
15 Now, I will tell you that when you'e
16 walking down the street, I often think of movie
17 themes. I think of this, and the action of the film
18 comes to mind in my head. Without music, that would
19 not be possible because the music is the character
20 that I can carry with me.
21 Shall we go on to the next one?
MS. WITSCHEL: Yes.
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BY MS. WITSCHEL:
Q What is Music Claimants exhibit 11?
Now, Music Claimants exhibit 11, our
exhibit 11, is interesting because it shows something very different. It shows something -- it shows the use of music in a subtle form of way.
You remember the movie MASH. It was in that movie very, very complex. It wasn't good versus evil. It was cynicism. It was irony more than
10 anything else. What are these doctors doing in the middle of a war trying to heal people when they'e
12 endorsing something that has them wounded?
And the theme song of the movie, "Suicide is Painless," when it's used in this scene is perfect because it shows what he is doing is foolish, he is not going to really do it, and the way -- what you'e 17 going to see what they'e saying to John Shuck in the
18 coffin is, "Well, we know you'e not going to do it,
19 but enjoy the moment anyway."
20 And the song is perfect. It's not only a
21 theme song. It's the way it's performed.
22 (Whereupon, a videotape was played.)
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THE WITNESS: Setting the tone very, very
subtly. And we see the performer, which is another chance that Robert Altman took. And now the altercation begins to build. (Whereupon, a videotape was played.)
THE WITNESS: Now, if you will notice, the music is still -- it's not background music anymore. If they'e all going to say something -- but it is
still as loud as the dialogue. Why? Because it' 10 just as important as the dialogue of the actors, such as the dialogue is.
12 What is the most important element in
13 this? The music. (Whereupon, a videotape was played.)
15 THE WITNESS: No, that music, it's ironic
16 again the irony, that that became the theme song for
17 the movie and also for the popular TV series because
18 that was not necessarily the prevalent mood of the
19 movie. The prevalent mood of the movie was these two
20 slick doctors who go off to Tokyo to perform
21 operations and all the hijinx that goes on.
22 But this moment in the movie was so
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important to give some dimension to these actors. And they had to pick the right way to proclaim that and
the right way to demonstrate that. And that was through that particular song.
That's why it was a great moment in what is still, unfortunately for Robert Altman, his best
BY MS. WITSCHHL:
Q Now, you also mentioned the use of music
10 to set a time or a place. Can you give us an example of that?
12 Well, Gone with the Wind, for example, a
13 big, gorgeous score, a big, gorgeous bit of music that
14 has become a part of us. Casablanca is another
15 example. I mean, one song has become so famous in
16 what is generally regarded as one of the greatest
17 films of all time. You only think of it because of
18 one song.
19 Music sets mood, too. Music -- if you'e
20 going to hear music of the Charleston, then you know
21 you'e in the '20s. If you'e going to hear jazz, you
22 know you'e in the '30s and '40s. Music sets a time
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and place. If you -- in the old days when big movie musicals were made set in Egypt, they didn't film it in. Egypt. They filmed it in Burbank. But they would play exotic-sounding music to set the time and place.
Now, they go to those locations, and they will use more authentic music. They'l use music
written by people there. But in the great films of Hollywood, they were all done by a handful of
10 composers who were able to adapt any mood of the film
their music to any mood of the film.
12 Q How is the music used in the film Forrest
13 Gump?
Nell, Forrest Gump, we'e all seen it.
15 Forrest Gump is a movie that covers several decades.
16 And it shows the evolution of time. It also was -- I
17 think -- I believe they made the decision to use the
18 popular songs to put us at ease because here is a very
19 eccentric character.
20 We'e asked to believe it's a hero. But
we need something to rely on, something familiar,
22 something safe. So they used a series of familiar
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songs and songs that progressed over the years to show the evolution of this character so that what happens
to Forrest Gump at tbe end of the movie is believable. This is all very subtle, all done by
artists wbo know how to manipulate you in a positive sense of that or, particularly in this film, by using songs that were familiar, songs that were already bits
before the movie came along.
And that's tbe case with a lot of movies
10 like that, American Graffiti, American Hot Wax. A lot of movies like that use familiar songs. Sometimes
12 they overuse them. Every time they turn on tbe radio,
13 there is a number one hit from that era playing. That has become a copout. But that is one of tbe best
15 examples of the perfect use of that technique in
16 Forrest Gump.
17 Q Do you think that the role of music has
18 changed over tbe past 10 or 20 years?
19 Tbe role of music in movies and TV?
20 Q
21 Well, the role -- tbe use of music bas
22 changed in that it has become so much more a signature
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of a movie, even before it opens. Again, if you go into any large music store -- I don't want to say
record store anymore. That dates me. I am sure there are matrix exhibits and soundtrack exhibits. It used to be that the old LPs were just
in a little corner here in movie soundtracks. Now the opening of a movie is as much an event in a music store as it is in the -- it's not even in the video store yet -- as it is in the theatre.
10 So music is used to market movies. It is used to promote movies and to cross-promote it. There
12 are many stars in movies who got their start in music.
13 I don't consider rap or hip-hip music. My son certainly does. And I'm sure he'l admit that
15 certain actors, certain people are in movies, rap
16 stars are in movies because the kids know who they
17 are. We don't know who they are until we see them in
18 movies. They know them from the context of music. I
mean, that's why they become stars.
20 So the influence of music is greater now 21 than it has ever been. And this all started during 22 the period in question, the '80s and the early -- and
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through the '90s.
Q What is exhibit 16, Music Claimants
exhibit 16?
A videotape montage of popular music in
films. Do we have a tape of that or not? Yes. Let' take a look at that. That will show you -- before you start it, that will show you how -- when you see this montage, you will see things that -- you will
understand how mucic is used to promote movies, how
10 music is used just as much as saturation advertising. It's as if every movie has hired another star. That
12 star's name is the music. Let's take a look.
13 (Whereupon, a videotape was played.)
THE WITNESS: Now, this is Dick Tracy. Do
15 you think back then Madonna was in the movie because she's a good actress? She's still not a good actress, 17 but she was -- give her credit for doing Evita.
18 But she was there because she was a
19 recording star who happened to be dating Warren
20 Beatty. But the movie helped torpedo through her
21 generation as well as Warren Beatty's generation.
22 It's also the worst Wenchel imitation you'e likely to
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see in your life. (Whereupon, a videotape was played.)
THE WITNESS: This was about the time when music videos began to be used as -- actually even
before this -- to promote the movie. You look at MTV. Music videos are used all the time to promote the
movie and often not with people who are in the movie. In the case of Madonna, it's obviously a co-star of the film.
10 (Whereupon, a videotape was played.)
THE WITNESS: The aforementioned Forrest
Gump. See, familiar music with an eccentric character
we'e asked to like. You just want to get up and join
them. You want to go -- particularly in long track shots like that and running shots that advance the story. It's the perfect use of it.
17 And when it's wrong, it's sometimes used
18 incorrectly. But in a film like this, there's a
19 reason why this film made a ton of money. And the
20 music is an important part of that reason.
21 (Whereupon, a videotape was played.)
22 THE WITNESS: Now, this is Buffy, the
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Vampire Slayer, a film I dare say I may be the only
one in this room who was forced -- I'm sorry -- who saw this film.
The reason why we included this is that tbe music appeals to the generation that has asked to
go see this movie. Most movie-goers are in the 15 to
18 years. What's the word I'm looking for? Not dynamic. Demographic. Yeah.
And this movie illustrates how movies that
10 the kids -- music that the kids know is being promoted to promote the film. It's cross-promotion in its
12 purest form. And it's going to a television show.
13 And the music was perfectly cast. That
14 was the best part of this film. The music in this
15 movie got you in the mood for accepting its rather bizarre premise explained by the title.
17 Now, sometimes they show movies with
18 ballad scores. I don't know if that was the case with
19 this, when they want to hire an editor. And I'm sure 20 it becomes a different movie when the appropriate 21 score, written for the movie or adapted for tbe movie,
22 is inserted. That is the case bere.
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And the name of this movie is a famous song. This doesn't happen to be the song that was the title of the movie, but it's perfectly placed right here. (Whereupon, a videotape was played.)
THE WITNESS: Uplifting, wanting you to
like this character. I mean, who wouldn'? See, no
dialogue, just mood, all created and moved along by the music.
10 (Whereupon, a videotape was played.)
THE WITNESS: Another movie which I may be
12 the only one in the room who saw it, but the prequel
13 is coming out. I'm sure you will be there opening day. Again, this illustrates perfectly that in a long
15 Easy Rider kind of spoof here, the music is the only
16 thing we are aware of besides the view, the helicopter
17 shot. And the music is the perfect element here.
18 You have to know your intended audience.
19 If I didn't like it but my kids liked it, it's made
20 for them. Who cares what I think in. a movie like
21 this? That's the key to judging a movie, finding the
22 intended audience.
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And it had a crossover appeal, but the music was appealing to everybody. You want to get in your car and drive when you hear this because of the music
(Whereupon, a videotape was played.)
THE WITNESS: Now, again, this is using a song that had been a hit before to make a very tender Austral ian film about an ugly duckling, not to be sexist, kind of woman. All of her friends are getting
10 married and when is her turn. If you put the wrong music in here, you'l
12 lose the mood, the intended mood, of this movie. It'
about a dreamer. It's about somebody who aspires to
what we all do happiness. (Whereupon, a videotape was played.)
THE W1TNESS: Now, Waiting to Exhale is about -- if you haven't seen the film, it's about four
18 independent women. One of them throws her -- by the
19 way, that's Whitney Houston there, a bit of a music
20 star herself when she has the time.
21 It's about one woman throws her cheating
22 husband out and how they deal with relationships with
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men. And, of course, it's a big music video come to the screen with tbe use of one of the biggest pop stars in tbe world. That's Angela Bassett in the front with
her, who played Tina Turner, another music star, in
What's Love Got to Do With It?
Take the music away, diminish the
importance of the music, and you lose the whole scene.
And you lose tbe whole relationship of the characters,
10 Spike Lee again using a familiar song to imbue a sense of hope, optimism.
12 (Whereupon, a videotape was played.)
13 THE WITNESS: Lyrics are critical here beyond the music because when you bear a familiar song
15 in a movie at a particular scene, that's the director
16 talking to you. That's tbe director saying, "I want
17 you to feel this way at this time."
18 And the only tool the director has if be
19 or sbe is smart is not to use overly tricky Orson
20 Wells want-to-be visual effects but to use music
21 because we can relate to it instantly and get tbe 22 mood. Music is the best tool for that.
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(Whereupon, a videotape was played.)
THE WITNESS: Okay. So what we have seen is the use of music to set a tone, to identify the characters, to put you in the proper mood for a movie, and also to convey certain subtle emotions along the
way that may change as the movie progresses, but at that particular time in the movie have to be expressed
to the viewer. And the only way you can do that or
the best way, I should say, is by the proper choice of
10 music.
Believe me, when the music is wrong, I am the first one to notice it. And so are film-goers, too. It can be intrusive. It can be used as a crutch. But the point is it's constantly being used,
15 for better or worse.
By the way, what opera are you seeing
17 tonight, if I may ask?
18 JUDGE von KANN: Pidellio.
19 THE WITNESS: Good luck. Okay. You'l
20 enjoy it. God forbid it should be Carmen, which I
sang in. My father wrote the next day, "Everybody
22 knows about Carmen. Those are about the little boys
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who come out at the beginning, and they say, 'Should
we hang around the cigarette factory?'ah. They run
off. And that is the story of Carmen." Anyway--
MR. GARRETT: Is there anyone on the panel
who is going to a ball game tonight? (Laughter.)
THE WITNESS: There is no baseball in the nation's capital, unfortunately.
JUDGE YOUNG: I continue to watch
10 basketball. Did you say, though, that the most
important demographic group for movies is 15
THE WITNESS: For the majority of big
movies, like the Matrix., for instance, 15 to 18 years,
15 unfortunately, is the biggest demographic.
JUDGE YOUNG: And that is the last few
17 years or
18 THE WITNESS: No. That's the last 30 or
19 40 years, particularly with the big blockbuster films.
20 And a movie, by the way, has to make three times it
21 cost to make money. So that's the one they appeal to
22 and kids watch.
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That's tbe MTV generation, which is always
moving. You know, they graduate from MTV I guess to
VH1, but, again, other music channels. So these are
the kids that go buy all the stuff connected with tbe movie, particularly the CDs. That's what they carry around with them.
JUDGE YOUNG: Is there any difference in the use of music for movies that are directed towards an older audience?
10 THE WITNESS: Wouldn't that be nice to see
people our age walking around with tbe CDs and the
12 headphones? It's marketed a little bit more subtly.
13 We know if we like a film, we will go and
14 see out tbe score, but tbe big blockbusters are the
15 ones that are advertised in the music stores
16 primarily. And that's for the kids who need to be
17 pushed there, who need to be going to stores.
18 So they spend their money on tbe
19 blockbusters and hope tbe ones that play at the art
20 bouse find their audience, too.
21 JUDGE von KANN: You just mentioned MTV.
22 We know that there was, of course, music in films for
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some time, Casablanca, quite a while ago.
THE WITNESS: Since the
JUDGE von KAHN: Gone With the Wind was
made quite a while ago. But in your testimony, -- I
think it's at paragraph 35 -- if I understand it, your testimony is that there really has been a sort of an
explosion in this following the launch of MTV in the early '80s. Is that it?
THE WITNESS: Yes. And I also think that
10 was unforeseen. When MTV came -- I mean, the first big people to make music videos, which look primitive
12 today, were the Beatles.
13 And the Beatles only made a few films, but
if you look at their attempts to make music videos,
15 they were like experiments. Well, somebody out there
16 must have said, "Hey, I can make a whole cable channel
17 out of this."
18 And it became in many ways an ad for
19 upcoming movies. And if I look at the videos on MTV 20 when I do watch it, it's -- and you'l see the stars,
21 the recording stars, who don't appear in the movies.
22 But sometimes you'l see the stars who were in the
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movies performing their own songs on the video. So there are all sorts of ways of promoting a movie and
even. a TV show on MTV.
JUDGE von KANN: So is it fair to say that the use and importance of music in both movies and television generally has been on the rise since the early '80s?
THE WITNESS: To put it mildly. Right now
we are at the point where it cannot be underestimated.
10 JUDGE von KANN: Okay.
THE WITNESS: That's why they give an
12 Oscar. That's why they give several Oscars for music
13 people. Even though Talk to the Animals won the Oscar
14 one year, they still give it to them.
15 JUDGE von KANN: Okay.
16 BY MS. WITSCHEL:
17 Q The films, the clips that we just looked
18 at, they each have the year associated with the view,
19 1990, '94, '95. These were movies that were
20 retransmitted on distant signals
21 Yes, they were, to my knowledge.
22 Q by cable systems in 1998 and 1999?
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I believe so. Yes, they were. And what'
interesting is by the time they are retransmitted, most people have seen those movies. Those are the big, big hits. And most people already have the music
When they first came out, the music was used to promote interest in the film so that eventually whether you even saw it there for the first
time, chances are you have the CD already.
10 Q Snuffy Walden, the film and television
composer, testified on Friday. He told us and showed
12 us some clips about the use of music in television.
13 Is it your opinion and your experience as well that
14 the same phenomenon you talked about with respect to
15 movies has also occurred in syndicated television
16 programming?
17 Absolutely. You look at a show like
18 well, there are different dynamics. If you look at a
19 show like Ally McBeal, for some reason, they used to
20 start to sing at the end of the show. I would watch
21 that Monday nights when there was no football game on ross.corn 22 because that was what my wife had on.
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And they had a recording star there, Vonda
Shepherd, who became a member of the cast and had not been a hit singer until she joined this cast. And it's something that sells the popularity of the show. Music is connected with shows from sports
to every news program except 60 Minutes and to movies
on TV and to any kind of entertainment show, to any kind of sitcom.
If I say the Mary Tyler Moore Show, you
10 know the theme song. You can wake my wife up at 3:00 in the morning. She'l sing the Patty Duke song to
12 you. That is as much a part of the show as whatever
13 went on in that show.
14 So music is very important to television,
15 in all forms of television.
16 Q You mentioned when you were talking about
17 some of your experience that you I guess worked for
18 Public Television for some time.
19 Yes, I did.
20 Q Can you tell us a little bit about the use
21 of music in Public Television programming?
22 Well, I co-hosted again the sneak previews
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for 12 seasons, from 1982 to 1996. And we used tbe theme song from an obscure episode of Ozzie and Harriet for our theme. And it became very well-known.
All of the PBS shows have theme songs. If I say McNeil-Lehrer, you'e thinking of tbe music. If I say Sesame Street, you'e thinking of Joe Rapozo's
song "Sunny Day." So the music is a good way to get
a signature for a show on. PBS.
And, you know, PBS needs it more than tbe
10 commercial stations because they'e always saying,
"Please send us money." They don't have the
12 advertising dollars that commercial television has.
13 So how do you get it out to the public to
14 watch their shows? Music is tbe best way to do it, to
15 help it become a signature sales element for tbe show.
16 Q Are you a sports fan?
Yes, I am a sports fan. My wife thinks I
18 am a sports fan and nothing else, but I am a sports
19 fan, yes. I have cut down on my listening to Boston
20 Red Sox games to only 160, instead of 162, talk to tbe
21 announcers during the game on e-mail. And sports is
22 up in the other part of my brain, yes.
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JUDGE YOUNG: You grew up in New York.
How do you like the Red Sox?
THE WITNESS: The question was, how do you
like the Red Sox in New York? Because in the Seventeenth Century, the great inventor Blaise Pascal said, "The heart has reasons that reason itself knows nothing about."
Will you please enter into the record that these gray hairs are from being a Red Sox fan and
10 watches Red Sox? On my tombstone, it is going to say, "Cause of death: Boston Red Sox
12 MR. GARRETT: What did you think of Trot
13 Nixon's plan Saturday?
THE WITNESS: It was not the first time it
15 happened. It happened four or five times. Also Benni
16 Agbyanni did it. It happened in the 1930s. In case
17 you didn't know or, like my wife, you don't care, he
18 she recently learned there were two teams in New
19 York -- forgot there were two outs, and he threw the
20 ball into the stands. They wouldn't lose the game
21 anyway.
22 He's the most intense player on the team.
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And I'm sorry it happened to him. It happens.
BY MS. WITSCHEL:
Does music play a role in sports programs?
Yes. Of course, music, more than ever
before -- along came a guy named Terry Cashman. in. the '80s and wrote a song for every single Major League
team. And that was part of the explosion of music in our consciousness of music, along with the emergence
of ESPN.
10 If you say ESPN and you say -- you hum the
word "Duh-nuh-nuh, duh-nuh-nuh," people know that is
12 Sport Center. Sport Center has been on -- has had
13 more than 21,000 broadcasts.
14 This Week in Baseball, of which I have 14
15 seasons on tape, for reasons I still don't know, was
16 on for many, many years. Baseball Tonight is one of
17 the most memorable and notable sports themes of recent
18 years. Not only in the stadium but when you are
19 watching on TV, you can't but hear all sorts of music
20 from the Cavalry Charge first played in the Baltimore
21 Orioles Memorial Stadium to all the stuff that goes on
22 on the scoreboard.
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I know some of the people who program the scoreboards where, as a matter of fact, the Mets and a few other teams put questions from our baseball
books up on the scoreboard in the eighth inning.
So I have come to know several of the
people. They -- that was many music videos and anything to keep the fans occupied. God forbid the sound of baseball should be enough.. But no, they
now today any stadium you go to, there is music at any
10 time when there is not action, not only that, but in recent years the phenomena, which I think is a bit of
12 coddling, has occurred in which every time a player
13 comes up to bat, at least in the home team, they play
14 a few bars of his favorite song.
15 You know, can you imagine a guy coming up
16 and they'e playing Sevallies just to shock everybody,
17 instead of some music that they play?
18 And, of course, Manny Ramirez, if I may
19 digress for a second, submitted a song and did not
20 realize. Do you know what happened? There were some
21 words that we can't say in front of polite company
22 heard all over the loudspeaker. So yes, music is
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everywhere in sports.
Q The type of music you talk about in the stadium, does that carry through to television viewers?
Yes. You can't help but watch it. Yes,
when they go to commercials, you hear music because the ending is over. And it bleeds through. And also during the game, you hear it, too. It depends on the stadium. Some have much
10 more than others. But when you'e watching a game, especially in basketball, it's a different kind of sports. It's a back and forth sport. And there' constant action.
1 know if you'e a fan of Jaws, all you have to do is watch a Lakers game. And you hear
when they'e coming up, you hear that song. When
17 somebody gets a walk, they'l play "I'm Walking."
18 There is an organist in Chicago named
Nancy Faust who was one of the first ones to do this.
20 When somebody -- when a player named Benny Ayala came
21 to bat, she played "Tie a Yellow Ribbon," if you will.
22 And that began to be copied by organists all over the
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Major Leagues. Every Major League team bas an
organist. And it's to keep the fans entertained and to keep -- and hopefully to help tbe home team.
JUDGE YOUNG: Has that changed over tbe years'?
THE WITNESS: Nell, there was an organist
named Gladys Gooding wbo played for the -- she's the
only person who played for the Brooklyn Dodgers and
tbe New York Knicks. And she played the organs at all
10 those games. They've been around.
JUDGE YOUNG: But they didn't play as much.
THE WITNESS: Not at all as much. Years
ago I don't think — — I don't know this spec3.fj.cally,
but 1 don't think every stadium bad an organist. Now
they do, particularly since they play "Take Me Out to
17 tbe Ball Game," written by someone who had never seen
18 a baseball game, by tbe way, and also "God Bless
19 America" in tbe seventh inning.
20 And, you know, "Take Me Out to the Ball
21 Game" is now sung everywhere. And more now than ever
22 has music become because of our consciousness of music
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as an adjunct to sports, just as it is to movies.
JUDGE YOUNG: I have a theory that, in part, it's because of a sense of disrespect to the fan, but the fan can't be counted on just to focus on the game. They'e got to sort of entertain us as well.
THE WITNESS: Well, look at it this way, though. Not necessarily. In one inning, they always play these stupid three-card Monty games on tbe screen
10 or which train is going to get there first. I'd rather hear music than -- so when it's not there, you
12 miss it
13 BY MS. WITSCHEL: In addition to the organ music, is there
15 other kind of music being used in connection. with
16 sports programming?
17 Sports programming, well, the organ -- you
18 mean theme songs? Yes, theme songs for sports shows
19 are pervasive. You know, every single team bas a CD
20 of great moments in its history.
21 How they got a full CD of tbe Milwaukee
22 Brewers is beyond me, but every team -- we have copies
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of the CDs here of every major sport highlighting the history of it or honoring a great player. And they'e as popular now, more than ever, actually, because of their availability. And
more heroes have come along. More events have come along.
So there's a whole section in CD -- what
do they call them, record stores or music stores,
where there are just sports CDs now.
10 You have some experience with station-produced, local station-produced, programs as
12 well?
13 Yes. I work at NBC. And somewhere in our
we just changed our -- we changed a new set. And
15 we have new music. Somewhere they have to get the NBC
16 chimes in. So each station has its own music theme.
17 I think all of the NBC-owned somewhere they have to
18 put the NBC chime in. So yes, I am very familiar with
19
20 Q You worked for WPIX at one time?
21 Yes. And we had many changes in our
22 theme. And none of it helped in the ratings. But I
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was there for 21 years. And they used a lot of beautiful music at the end of the show. In fact, sometimes that was the highlight of the show but not to disparage where I used to work, but no signature
music but network, particularly NBC, have that signature, three chimes.
Q Has there been or is there any role played by music in connection with the station-produced programs?
10 Music, again, can be the signature. It can be the thing that promotes the show. If you hear,
12 "Bah dah dah dah dah dah dah," that's NBC news. You
13 know that. That's heard everywhere. That's the signature. That's the opening page to the stories
15 they'e going to tell. That's the cover page. That' 16 as important as the title page.
17 And all three networks have them. So do
18 the other networks. So do the cable networks but more
19 so with the broadcast networks. But yes, that's a 20 very important part of it.
21 Q Does music ever accompany news stories?
22 Music can accompany news stories. It is
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sometimes frowned upon when it is done to an excess, but it often is used, particularly when you have the lifestyle stories, the fluff stories, the stories that are used as filler, you know, the animal that does this or the new exhibit or the new invention. Sometimes they'l put music in as well to move the story along. Have there been any changes in music in connection with local station-produced programming in
10 the last 10 or 20 years?
I don't know from experience other than
12 it's when you use certain music, you'e got to get
13 permission from you guys. But other than that, I
really don't know how the evolution has occurred other
15 than the fact that it's often considered to be an
16 important element of a story if you want to do a
17 not a pure news story but, again, in a feature story.
18 Sometimes in weather forecasts or things
19 like that, it's often very subtly used. If it's used 20 well, you'l notice it, but you don't notice that it' 21 a familiar song unless they get the rights to do it.
22 But it's always a consideration.
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MS. WITSCHEL: Thank you. I have no further questions.
JUDGE von KANN: Okay.
JUDGE GULIN: Let me ask something. Mr.
Lyons, what you have told us is that with respect to station-produced programming, you'e not sure what the change has been over the last couple of decades?
THE WITNESS: I do know that certain shows that have been on a long time have themes that have
10 become a part of us. Again, if I say,
"McNeil-Lehrer," -- now it's called the Jim Lehrer
12 Hour -- you hear a certain music. If I'd say that, in
13 your brain, you'e going to hear the theme song. It' become so pervasive because it's on night after night. And it's promoed night after night.
16 Also, when networks promote their upcoming
17 shows, they will play the theme song. And we know the 18 theme song half the time. So to that extent, again, 19 it's another marketing tool. It's used in much the
20 same way that movies are promoted by using the theme
21 songs, by selling it and on MTV. So it'
22 JUDGE GULIN: Do you think it has become
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more pervasive over the last 10 or 20 years'?
THE WITNESS: I can't say for sure.
JUDGE GULIN: Okay. As far as sports, I
think you have said that the use of music has become
more pervasive in tbe sports stadium, which we learned last week for tbe viewer-owned television would be
known as ambient music.
THE WITNESS: Not always. Sometimes at tbe beginning of tbe Olympics or beginning of any
10 baseball game, you'l hear tbe theme of the team.
When the Mete come on, you'l bear "Meet
the Meta." When tbe Yankees come on, you'l hear that
song. You'l hear that theme song. When certain teams have their famous theme songs, that was really -- with the Meta, it started from the beginning, from 1962.
17 I can' remember the Yankees having a
18 theme song way back then. But every time a Yankee
19 broadcast comes on, you hear that music. So that'
20 been used -- that was used before and after the game.
21 When the Yankees win, Sinatra sings "New
22 York, New York." When they lose, I love to hear Liza
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Minnelli singing, "New York, New York." You can tell, again, if you tune in after the game, you don't know what the score is, if you hear Liza singing, you know it's a Yankee loss. So it's used in that way, too.
No other team does that.
JUDGE GULIN: With respect to movies and syndicated programming, I think you'e said that music has become more important over the past decade or two.
It's been used perhaps more skillfully. How about the
10 actual intensity of use; that is to say, for example, the minutes per hour of music? Is that increased, in
12 your view?
13 THE WITNESS: Minutes. There are more
14 music and movies now than back then?
15 JUDGE GULIN: More syndicated programming.
THE WITNESS: I don't know. I couldn'
17 address that. But I would -- I don't know that that
18 equation has changed. Art is art. And if a song or
19 a theme or something should be used at a particular 20 time in the movie, that's when it's used. That 21 equation really hasn't changed.
22 I don't think music is written, nOh, let'
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sell this movie in the record stores as well." That' done by other people, not by the people responsible for making what's on the film change.
So that really -- that equation probably hasn't changed.
JUDGE GULIN: So in your perception, you don't think there's been more actual use of the music but, rather, it's being used better?
THE WITNESS: It's been used better. And
10 it's been used in more outlets. The word "synergy"
comes to mind. You know, Time-Warner is Warner
Brothers. And they sell music as well, you know,
Universal and Universal Records and Sony and music and
Sony and Columbia. Years ago there wasn't that synergy. So, even if it's the same amount of music,
17 it seems like ten times more because they'e using it
18 from other parts of the conglomerate that owns the
19 movie company, where they couldn't do that before.
20 JUDGE GULIN: I understand. I want you to
21 think back to the period of about 1983-1992. What can
22 you tell us about the use of music? How did it evolve
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to that period?
THE WITNESS: If it were possible to write a graph, I think you would see it going in the
opposite way of the stock market, up, because of the
emergence of MTV, because of the emergence of cable television, because of the emergence of the use of
movie trailers on TV. Back in the '70s and the '60s, you did not
see as much advertising for movies on TV the way you
10 do now. Those 30-second clips, those 20-second
trailers that we would see in the theatre, you didn'
12 see them on TV as much. Now you see it all the time. 13 If your little movie can't afford to have
it on NBC, then you'l put it on a cable station. 15 You'l put it somewhere. That's a whole different
16 industry. And the music is another element that helps
17 promote the movie.
18 JUDGE GULIN: All right. So in. that
19 period of time, '83 to '92, you do perceive a
20 THE WITNESS: Oh, enormous.
21 JUDGE GULIN: -- greater use of minutes
22 per hour of music?
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THE WITNESS: Absolutely, absolutely.
JUDGE GUI IN: All right. Thank you. That's all I have.
JUDGE YOUNG: One question. You mentioned
just in passing about sequels and prequels. I am wondering and I'm really now asking in a very
open-ended way whether that has affected, number one,
my observation or sense that there has been greater use of sequels over the last ten years is true; and,
10 number two, whether that has had any impact on the use of music.
12 THE WITNESS: This summer alone, there are
13 20 sequels coming. The reason. the movie The Madness
of King George was called the - - remember that movie,
15 The Madness of King George? In Great Britain, it was 16 called The Madness of King George III. Here they
17 changed the title because they were afraid American
18 audiences would think it was a sequel. True story.
19 True story.
20 Music sequels are a safe way and a logical
21 way to make another movie using the same formula. It
22 usually doesn't work, but we still see the music use.
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Sometimes -- I can't cite you chapter and
verse whether in the sequel a new song is included or not. Sometimes they are, I suspect. At least you hope something original is going to be there.
And the sequel that is never -- the best example of a sequel that works, of course, is Tbe Godfather. Once in a while -- the Matrix is a little better tbe second time around. Lord of the Rings I
liked the second time around. They may write new
10 music for it. I don't have the time to sit and study whether they wrote new music for it.
12 JUDGE YOUNG: They use it as a theme song
13
THE WITNESS: Oh, they'l use the same
15 thing. Ob, absolutely because when part 2 of whatever
16 it is comes out -- you know, they'e going to make a
17 Spiderman 2. Whenever that comes on, opening credits,
18 people want to see -- they applaud at opening credits.
19 They want to see the familiar music,
20 particularly in the Raiders of tbe Lost Ark movies if
21 they make another one of those or tbe Star Wars one.
22 Tbe moment the opening theme in Star Wars comes, the
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opening credits, people applaud because they hear the music and it grabs you. You can feel it, particularly in a large screen. If you'e in a theatre where that is going to
show which holds 1,000 people, you can feel the
vibrations. And it's punctuated by the applause of the movie. They'e got you.
JUDGE YOUNG: But has that been a phenomenon that has changed over the last ten years?
10 THE WITNESS: Well, as sound systems have
gotten better as the introduction of Dolby and you can
12 hear it all around you. And I think in that regard
13 and, as John Williams gets his 60th or 70th Oscar and
14 becomes a bigger and bigger star like that, I think to
15 that extent, it has.
16 They have become big stars where years ago
17 if you -- I mean, every year, I host the Little
18 Orchestra Society at Lincoln Center. I host a
19 performance of themes from the movies.
20 And if I say Dmitri Tiomkin, maybe you and
21 I know who he is, but once you hear the music, you
22 know who that -- now it's John Williams'core. Now
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it's the composer has become a big star as well. And that really has increased over the years.
JUDGE YOUNG: And also in your testimony
in that same paragraph, 35, that Judge von Kann pointed to earlier, you make reference to the
phenomenon of younger film-makers who grew up in the
popular culture of the '60s and '70s are now becoming more accordant. Are these three just examples or are you saying there is a whole generation?
10 THE WITNESS: I can't name them offhand,
but I can tell you another one, of course, is John
12 Singleton for Boys in the Hood, any of the young
13 film-makers .
You will remember Quentin Tarantino worked
15 in. a video store and spent years listening to movie
16 themes as he would constantly have a movie on.
17 Other young film-makers get their
18 inspiration from other sources, I suppose, but there
19 are others besides these two -- besides these three,
20 I should say. So absolutely.
21 JUDGE von KANN: You spoke about John
22 Williams. It seems to me years ago one of the main
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writers of film scores was Elmer Bernstein, whom I
think was a relation of Leonard, brother or
THE WITNESS: I never heard that. I knew Elmer Bernstein, but JUDGE von ~: Maybe not, maybe not. But he was the John Williams of his day, as I recall, and wrote a lot of scores.
THE WITNESS: Oh, yeah, right. JUDGE von ~: Anything further before 10 we break? I think this is probably a good time. I
assume we have agreement on order of cross or that's what you'e going to do during the break? All
13 right. Well, let's reconvene in 15 minutes. (Whereupon, the foregoing matter went off
15 the record at 10:38 a.m. and went back on
16 the record at 10:58 a.m.)
JUDGE VON ~: Okay, Mr. Garrett. 18 JUDGE YOUNG: I guess we missed the
baseball talk I was looking forward to.
20 MR. GARRETT: You haven't missed it.
21 (Laughter.)
22 CROSS EXAMINATION
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BY MR. GARRETT:
Q Mr. Lyons, my name is Bob Garrett and I represent the Joint Sports Claimants in this proceeding, good morning.
Good morning.
Q Here we are starting the eighth week, Mr. Lyons, and the Cuba are still in first place, do you know that?
I know that. I know that. I follow the
10 other league looking for players.
Q Mr. Lyons, one of the principal themes of the Music Claimants in this case is that music is an element that runs through all programming. I assume you would agree with that premise? Absolutely.
Q Also, would it be fair to say that music 17 itself has several different elements to it?
18 Music itself has several different
19 elements to what?
20 Q To the music. 21 You'e saying music itself has elements to 22 the music. What do you mean'?
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Q There are several elements to music. I guess. Be specific and I'l agree with you if I agree.
Q Well, you showed us a number of tapes
before where we heard the music coming out. That music is really the product and the efforts of songwriters, correct? Songwriters, editors, the director. Lyricists?
10 1n some cases.
Q You need a band to play the music.
12 Not always.
Q Orchestra, to play the music'? It would nice if you always needed one. It s usually.
Q So you need some musicians to play the
17 music?
18 Unless it's synthesized.
19 Q You need, if it's recorded music or
20 someone who has produced that recording, correct?
21 You need someone handling the expertise of
22 making it sound as good as possible.
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Q Sound engineers also would come into play?
Yes. They give Oscars for that.
Q When you talk about music, you'e really talking about all of these different elements that
come together and that's what we hear when we watch a movie or a syndicated show or a sports program? If there were one element to music it wouldn't be as important as it is to the creation of
a mood or an effect of a movie or a TV show. Because
10 there are so many elements that you'e named, that'
part of the reason why the music is as important an
12 element in many cases as the actors or the screenplay
13 or the director.
Q You showed those tapes earlier today of Jaws and M+A*S*H and all that. I take it that was not
16 something you would suggest doing. That was something
17 someone else had suggested that you do?
18 I mentioned those movies and the tapes
19 were prepared for me. I didn't do the tapes, but it 20 certainly adds -- you can talk about it all you want, 21 but seeing the effect is obviously much more effective
22 than just talking about it.
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Q Right, right. But you'e aware, you know
who Hal Davis is, don't you? Yes, somewhat.
Q And you know that he testified here about
20 years ago. I didn't know that.
Q This is a long proceeding. (Laughter.)
10 Q Actually, there were people who testified last week, it seems like 20 years ago.
12 You'l be saying that about me next week.
13 Q Probably. But when he was here, he did
14 something very similar. He showed Butch Cassidy, a
15 scene from Butch Cassidy and the Sundance Kid where
16 they played "Raindrops Keep Falling". Are you aware
17 of that?
18 Am I aware that he testified here and
19 played that?
20 Q Yes.
21 No. But I'm glad he did. You'e still
22 not convinced. He was right.
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(Laughter.)
No disrespect, counselor. But you set me
up for that. I had to say it. (Laughter.)
Q Okay, well, then I won't ask any more. I
can't get set up any more on that one. But you would agree that the effect of seeing Butch Cassidy and the
Sundance Kid without music would be much the same as
seeing some of the clips that you saw?
10 Without the music, it would be a different movie. The music -- that's a wonderful example which
12 we might have included as well as advancing the story,
as making you like people who are felons, as fictionalizing real characters, as creating a mood that had never been seen in a western before. It wasn't western music. It was contemporary music, in
17 this case, put into a movie which used unique
18 techniques to create a turn of the century image sepia
19 tones, the passage of time and that's one of the many
20 reasons that's one of the greatest films ever made.
21 Q Let me -- a couple weeks ago, we brought
22 in an economist to talk about FCC rate regulation and
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one of my, actually two of my colleagues went out and bought the book that he had written. (Laughter.) That's not the book.
Q One of the joys of my job is that I can go out and buy your book, Out in Left Field, you wrote that with your brother, right?
Yes, who is not an economist. He's a criminal defense attorney.
10 Q And this is a book of a lot of trivia questions?
12 Yes, it is
13 Q Related to baseball? I admire your taste in books.
15 Q The good news is I'm not going to use this
as an exhibit because this goes into my collection.
17 One of the questions you ask on page 70 is
18 who was the first man to bat on television?
19 Do you remember the answer to that one?
20 I used to know, either a Brooklyn Dodger
21 or a -- no, actually, the first televised game. I 22 think it was a Brooklyn Dodger against the Cincinnati
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Reds, about 1939 and it may have been Dixie Walker. I'm not sure. Well
Was it? Close. It was Billie Werber. I wrote that book, five, six years ago.
Q August 26, 1939.
Tbe announcer was Red Barber though, I
know that.
10 You got that right, yeah. But I actually
thought that the first televised baseball game was
12 Princeton and Columbia played on May 17, 1939.
13 Yes. We'e not talking about nonprofessional. We'e talking about Major Leagues.
15 Q Yes.
16 Twentieth century, not nineteenth century.
17 First person to ever bat on television
18 would have been someone in that Princeton-Columbia
19 game?
20 Yes, except that book is about Major
21 League Baseball and not about -- and who knows where
22 that was broadcast.
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Presumably, that player did not get paid
for it. We like to think he didn'.
That's a broadcast in New York, so it sort
of leads me to my next set of questions here. But at
the conclusion of the game, there was a series of
articles in the New York Times talking about the quality of the telecast and this was the first time-- This was a college game?
Q This was the Princeton-Columbia game.
10 Okay, all right .
Q Broadcast by Bill Stern. Remember Bill
12 Stern?
13 Yes, I knew Bill Stern.
Q And the Times, Oren Dunlap, a friend of
15 yours too who wrote for the New York Times?
16 Years ago. I don't know -- I worked for
the Times one summer, but I didn't know Oren Dunlap.
18 Q And I'm going to quote him here. This is
19 actually something I wrote. "Seeing baseball by
20 television is too confining. To see the fresh green
21 of the field as the mighty Casey advances to the bat
22 and the dust flies and he finally digs in is a thrill
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to the eye that cannot be electrified and flashed through space." What would Christy Mathiesen Smokey
Joe Wood, Home Run Baker, Eddie Collins, Prank Chance,
Trist Speaker, Ty Cobb, Gru Marguehart and those old timers think of such a turn of affairs? Baseball from a sofa. Television is too safe. There is no buffing the foul ball."
What year was that written?
1939. It was right after that May 17
10 A little before the advent of color
television and many years before the advent of high
definition television and many years before the advent
of the way baseball games and all sporting events are enhanced by electronic devices, by digital computer effects and, of course, by music. Well, would you agree, Mr. Lyons, that
17 seeing a game in person is somewhat a different
18 experience than seeing a game on television?
19 It's a different experience. It's not
20 always a better experience.
21 Cleveland against Detroit in late
22 September on a rainy afternoon, I'd rather watch at
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home than be at the ballpark. (Laughter.)
So you can't say one's better than the
other. It plays better on TV than any other game, with the exception of football, I guess, and
basketball, but hockey doesn't play as well on TV,
neither does -- even tennis plays as well on TV as
I would ask you to make a value
10 compar ison, just trying to get a sense about it . I t is a different experience being there. Yes, it is.
Q The stadium versus staying at home"?
And that ' trLle even i f we had high definition television
17 But it's not necessarily a better
18 experience. It can be -- you can. get a better seat at
19 home in. most cases.
20 Q Do you think that the role that music
21 plays, and I'm just talking about now about the music
22 that one sees or hears in the stadium, the role that
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music plays in the stadium may be a little bit different than the world that it plays when telecast,
the game gets transmitted via cable television? Well, of course. In the stadium, you hear
all of the songs. You hear -- some times it' incessant. You hear it particularly between innings.
You hear lots of different snippets of songs when
players come to bat, but when you'e watching on television, you hear the theme song -- like the
10 opening page of a novel, you see the theme song that is recognizable. It's either the network's theme song
12 or Major League Baseball theme song or Sunday Night
13 HSPN. They play the "Baseball Tonight" theme song
14 which I can whistle in my sleep. You also hear things
15 during the game from the stands. You can sometimes hear the crowd responding to songs, particularly,
17 which began with the Chicago White Sox when a picture
18 was the visiting pitcher, they'd play that "Hey, Hey,
19 Goodbye."
20 And when you have a creative organist, you
21 can hear that organist in the background. That adds
22 to it. That makes it almost like being there.
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Q But would you agree that -- just focusing on the stadium experience for the moment, that music is one element of that experience? Yes.
There are many other things that have to
come together in order to produce the game that the fans then enjoy, correct? Yes.
Q And you talked a little while ago about
10 what's done with the scoreboards today, remember that? Yes.
12 And that's certainly one other element of
13 the experience there in the stadium?
14 If there were no music, it would be a
15 pretty deadly experience though. Back in the days
16 before electronic PA systems, the announcer, Pat
17 Piper, for the Chicago Cubs spent 56 seasons talking
18 into a megaphone telling you that Hack Wilson is
19 coming to back.
20 Even then they had music. The Brooklyn
21 Dodgers banned, what's called the Symphony, and they
22 would play up in the stands somewhere and you could
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hear them.
So music has always been an element, but— and without it, it wouldn't be as much fun. It would be a deadly reactive thing that would be a completely different experience.
Q But you agree that there are other
elements that also go into making up that experience? It ' good play. It comes from the stadium. Reasonably priced food, good weather.
10 And these players, for example, Star players, teams you care about.
12 Q Coaches
To a lesser extent.
Q Umpires?
Not the umpires. You don't want to know
who the umpires are. If you do that, then they'e not
17 doing their job.
18 Q But you have to have them--
19 Yes, you do.
20 Q In order to have a game?
21 Yes, you do. That's why we'e here.
22 Q How would you compare the value of the
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music ads to one's experience at the games to all of the other elements? Is it a bigger part than all of the other elements or is it a small part? Understand that music -- I mean -- you'e
talking about people attending the game or watching on
TV?
Just now, focusing on attending tbe game.
Attending tbe game, the management of the
10 team wants to appeal to children and to tbe oldest person in the park as well, using as a part of that
12 element, if they play popular songs, there's always something lively, always something happening.
It is very hard to convince a child of 7 that even when no music is being played, something is happening, even when al the players are standing
17 still, that's the beauty of tbe game. Something is
18 happening.
19 Should the player play this way? Should
20 he move in? Should he know what the count is? Did he
21 forget how many outs? All those kind of things are happening.
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But music is there to move the experience along to have the illusion that something visible or audible is
always happening and that's why it can be used to enhance the experience. It's true of a lot of things besides sports.
Q But how important is that music there in the stadium compared to all of the other elements?
Oh, very important. It's just as
10 important as some of the other elements. Not all of
them, obviously. They are there to see a game, not
12 necessarily to listen to tunes, but that certainly
13 makes listening to the game more enjoyable.
Q Major League Baseball, as you may know, has entered into agreements with the different
16 performing rights societies that allow music to be played at the different stadiums around the country.
18 Now I want you to assume for a moment that
19 what Major League Baseball pays for that right to play
20 is in the neighborhood of a couple of cents. In fact,
21 it's probably around a penny or so.
22 Do you think that that's correct, that
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that penny would adequately reflect the value that music adds to the overall experience?
Nell, I'l put my two cents in and say no, it's not, it's obviously more important than that.
So the importance that you would attach to and have attached to your testimony here today to
using -- that the game is certainly is much greater
than what it appears in the marketplace may have attached?
10 I can.'t comment on marketplace values. I
just know that music is an important element.
12 Now a penny sounds like nothing. But
13 there's a reason why the parties came to an agreement. It makes the sense that I haven't taken the time to
15 study or the agreement wouldn't have been made.
16 Ever read the book about the music
17 industry called Pennies From Heaven?
18 My godmother was in a movie called Pennies
19 From Heaven starring opposite Bing Crosby, but I have
20 yet to read that book.
21 Q You also talk in. your testimony on page
22 20, the CD, the Sports CD, I guess it's page 20, yeah.
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Do you see that? It's not part of 20, paragraph 62? Paragraph 62. Yes.
Okay, and you'e identified a number of
different CDs that -- Exhibit 29 in front of you? In a second. I do know.
What was the purpose of the different CDs?
To show that music now being used to a
10 greater extent than ever before as a marketing tool for sports teams as well.
12 You may not be able to get to a Chicago
13 Bulls game. You may not be able to get to a Cubs
14 game. Indeed, you may have missed the Cubs game or
15 you may be out of the viewing area of some of these
16 games, but you can always get one of these CDs and
17 play it in your car or have it with you and you have
18 a sense of the team with you.
19 It was never true, years ago, by the way.
20 Q Let me ask you just to turn to Exhibit 29,
21 the fifth page in.
22 The firth page in?
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Q Yeah. Where specifically, because they'e all
page 1 of 1.
Q The CD I just randomly picked called "The
Cubs Greatest Picks." Do you see that? Kind of an oxymoron, don't you think?
I don't see the Cubs Greatest Hits, but I
know the Greatest Hits from Cub History.
I'm sure you do too.
10 Q Do you know which one are on this I don't see the page though. After
12 Seattle? No, this is after Seattle Mariners.
13 This is me genuflecting in front of the Red Sox.
15 (Pause.) 16 No, I'm not that old. I'l get it. 17 (Pause.)
18 Here it is.
19 Q Got it?
20 Yes.
21 Q It's one of the other reasons I really
22 love my job, Mr. Lyons, is I went out and bought the
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CD, "Cube Greatest Hits" here. This team that hasn't been in the series
in 1908. You are the ultimate optimist.
Q They are still the 1908 World Champions.
You can never take that away from them.
This is true. AS the Red Sow of the 1918 World Champions.
Q It also want to the World Series in-- 1945, yes. They came in second that year,
10 yes, in the World Series, I mean.
Q It reminds me of the famous quote about
12 that World Series. So many of the men were out
13 fighting World War II and there weren't a lot of top
14 quality players left and not many that anybody thought
15 were left on the Detroit Tigers or the Chicago Cubs.
16 And os it was a columnist for the Detroit Tigers who
17 analyzed the people on the team and concluded that "I
18 am quite convinced that neither team can win the World
19 Series."
20 (Laughter.)
21 It was the year after the St. Louis Browns 22 won their only pennant, so it would be right. It was
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still war time baseball.
Q I just want to play a couple of selections
From the Cubs Greatest Hits?
From the Cubs Greatest Hits here. Absolutely.
Q And then ask you some questions.
(CD Plays.) That's not Steve Stone, is it?
10 Q No. That's a radio announcer.
Who were the radio announcers? I don'
12 know.
13 Q I don't know. I'e got to listen to my
14 radio. I always listen to them on TV.
15 (Laughter.)
16 Distant signal too.
17 (Laughter. )
18 That first track from the Cubs Greatest
19 Hits recalls Sammy Sosa's home runs.
20 Did you notice how the music enhanced it?
21 Yes, but you would not have heard that
22 music on the radio or the television when Sammy Sosa
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was hitting his home runs?
You would or would not have?
Q You would not have, would you?
When the actual moment happened, probably not.
Q You would agree that 1998 was a pretty big year for Cubs fans? Well, for Sosa fans, not necessarily for the Cubs, yes.
10 Q Well, the race between Sosa and McGuire.
That was very significant. Yes.
14 Q And that generated a lot of enthusiasm and
interest among baseball fans all around the country? Yes.
17 Q And you could see those games involving
18 Sammy Sosa, at least many of them on wGN TV, right?
19 Yes, or you could see their At Bats on
20 ESPN.
21 Q Yes. Do you think that music in any way
22 enhanced, added value to that race at least?
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You mean the music that we heard on this
album here just now?
Q Any music? Yes, because otherwise you just hear a bunch of the same calls, just a higher number, but the
music added to the drama. That's why they put it in.
Q So the music added certainly to the -- on
the particular CD? Yes.
10 Q I won', as much as I'd like to, I'd like to go through all of these tracks, but I look here at
12 number 7, for example, Kerry Mows Them Done, May 6,
13 1998 versus Astros. Do you know what the significance of that was?
15 I believe that's the day he struck out his
16 age, if I'm correct, becoming one of only two
17 pitchers, the other being Rapid Robert Feller, to
18 strike out their ages. Fellow struck out 17 when he
19 was 17 and Kerry struck out 20 or 21, whatever it was.
20 Is that correct?
21 Q I think it was 20, yes. 22 I'm right.
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Q What you have on the CD there are the
radio calls of Kerry Wood striking out.
Was it Steve Stone on the radio?
Q Again, no. It was not Steve Stone. All right. If I look at the liner notes I guess I'l get the answer.
Do you have one where Harry Caray actually saw the ball? It could be, it might be, somebody tell
10 me, what is it?
Q Harry Caray was not aliv'e j.n 1998.
One of his few sober moments.
Q I thought it was here, but I guess I don' know.
1 also have number 5 here, Beck Gets No.
50, September 26, 1998 versus the Astros.
17 That's Rod Beck, later to break my heart
18 when he donned the sacred threads of my theme, fat and
19 out of shape. Yes, I am well aware who Beck was.
20 Q It really was his last good year was it
21 for the Chicago Cubs
22 Which explained why the Red Sox signed
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him, yes. He looked like a truck driver, not a ball player.
Q But 50 saves in one year is pretty good for any team, but particularly good if you'e a Cub pitcher, wouldn't you say? Yes.
So that was another kind of exciting series of events that took place in 1998 for baseball and the Cubs, correct?
10 Yes. You notice all of the highlights are mostly from one year.
12 Q 1998. Isn't that interesting?
13 Yes.
JUDGE YOUNG: Not 1969 or 1984.
15 THE WITNESS: As a matter of fact, I was
16 with an old Cubs starting pitcher on the 1969 team a
17 couple of days ago and I wished I'd know we were going
18 to be doing this. Bill Hans. He's my neighbor.
19 BY MR. GARRETT:
20 I remember sitting in the right field of—
21
22 This is interesting. I don't care what
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plane I make home. (Laughter.)
Q Willie Stargell bit a three run home run. Yes.
Pops they used to call him. Only player in tbe history of baseball named Wilver.
Q One last thing
Ob no, let's go on. I'm having a great
10 time
We can't afford the transcript.
12 My wife would have left an hour ago. She
13 thought horsehide was where they hide tbe horse. (Laughter.)
15 Q Let me ask you one more of your trivia
16 questions.
17 I'm not going to get it. I wrote the book
18 six years ago.
19 Q I'l give you the answer. We have a very 20 loose definition of impeachment. 21 JUDGE VON ~: It's getting looser by 22 the minute.
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(Laughter.)
BY MR. GARRETT:
Q This is page 71. Who was the last player from the old Negro Leagues to play in the Big Leagues?
My guess is he played here in Chicago.
Q The answer here is Hank Aaron. Yes, okay.
Q And I'm going to ask you to check this in your next edition here. I think the real answer is
10 Minny Minoso who did play in Chicago. Yes, but he was not -- he was considered
12 a Hispanic player not -- even though physically his
13 race -- he's a black man, but his name Oreste Santorse de Santernino Minoso and he's considered a Hispanic
15 player, not a black player.
16 Q But he still played for the New York
17 Cubans in the old Negro League.
18 Okay, well, I'e got to find that. I don't know. There are a couple of mistakes in that.
20 We'e not flawless.
21 Q Check it out. He actually played his last
22
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Oh don'. That's the gimmick that he got
it when he was 86 years old. That doesn't count.
He did do that for St. Paul, but he actually batted for the White Sox which was caught on
WGN as well.
When he was 77 years old. It was in 1980, four years after
WGN is the station where the weather man is the brother of the Enron guy. Did you know that?
10 Q I don't watch the weather in Chicago.
Tom Skillings brother is the Skilling of
12 Enron.
13 Q Or the local news unless I want to catch
up on who's been shot that day.
15 Would you like me to go on?
16 (Laughter.)
17 JUDGE VON ~: Not necessarily. 18 MR. GARRETT: Thank you for your patience
19 and indulgence.
20 Thank you, Mr. Lyons.
21 THE WITNESS: Thank you, counselor. It
22 was a lot more enjoyable than I expected.
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MR. GARRETT: Come back again.
THE WITNESS: By the way, we have a second book called Curve Balls and Strikes.
MR. GARRETT: I'e got that one too. I couldn't find anything wrong with it.
THE WITNESS: Thank you. And what's his
name, Matt Damon is going to write the introduction to the third one.
JUDGE YOUNG: I have two questions for
10 you, Mr. Lyons.
You were talking with Mr. Garrett about
12 the role of music in baseball, primarily baseball,
13 both in terms of the role of music within the stadium
14 and then on television.
15 Is it the same analysis you bring to bear
16 when thinking or talking about basketball or football?
17 THE WITNESS: I can't tell you which of
18 the sorts is more promoted with music, but I know that
19 music is used in a basketball game because the
20 basketball game is the same action back and forth, not
21 to say it's a better or worse sport, music may be used
22 in a different way.
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If you play music in a baseball game or in a baseball stadium at a point in the game when there isn't music called for or at a very tense moment, it would be intrusive and the music stops when the action happens. Basketball, it can go on. It can be used to rally fans at certain points of the game, so I'm sure music is used to the same extent in basketball, but I can't say--
JUDGE YOUNG: That's actually one other
10 question because basketball is a much quicker game. There is less stop and start other than time outs.
12 THE WITNESS: Right.
JUDGE YOUNG: And it would strike me just
14 thinking about this that maybe the basketball use of music would be less and it might be less also in terms
16 of what you hear on TV.
17 THE WITNESS: No because at every time out
18 at a basketball game, at least in New York, the Knicks
19 City Dancers come out and do music and do dances
20 during the middle of the game which doesn't happen in
21 baseball. It happens at the change of innings, but
22 not in a time out. There are no time outs in
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baseball, even though the manager calls for time, there is no time. But music is also used to program
basketball. Go, New York, Go is a song that is played
constantly to type the Knicks. So the equation may be different, but the importance of music to each sport is I would say proportionately tbe same.
JUDGE YOUNG: And then if you think about
basketball from a TV viewer's perspective, you never
do see New York City dancers, the Knicks City Dancers
THE WITNESS: Once in a while you do, once
in a while. You'e got to look bard, but once in a
while you do, and also you do hear the theme song of
MSG, whatever network carries the Knicks. So to that extent, no. But when you'e there -- the experience
17 is there's music there all the time. It's incessant.
18 JUDGE YOUNG: How about football?
THE WITNESS: College football or
20 professional?
21 JUDGE YOUNG: Professional.
22 THE WITNESS: I would say it's not quite
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to the same extent as college football. College football has the bands, obviously, and the elaborate half time shows, but professional football, every single time out and every single time when they show out of town scores, they play music. That's the
signature music of that network for a reason. You may
not be looking at the screen, you may be looking away and that music tells you that they'e going to reduce the screen and show you the out of town scores. And
10 the way they do that is by playing music. So it'
used in a unique way in that sport.
12 JUDGE YOUNG: You had a show for a number
of years on WPIX?
THE WITNESS: I was on the News for 21
15 years on WPIX.
JUDGE YOUNG: WP1'X is actually a station
17 that did retransmit as a distant signal?
18 THE WITNESS: Yes.
19 JUDGE YOUNG: Do you have any sense of
20 what was attractive about PIX, other than your show?
21 (Laughter.)
22 THE WITNESS: My lousy two minutes? Yes,
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well, we used to have a slogan at WPIX, "You'e seen
it on 4, you'e seen it on 7, so wby not watch again on Channel 11?"
We were the signature station to remain of "The Honeymooners" and of shows that were rerun and
there was tbe Yankees and the preseason Giants and
some Knicks basketball perhaps over the years. It' a totally different equation today than it was back
then. Today, it's a network. It's part of the WB.
10 They have original programming. We would have original shows that probably couldn't get sold to the
12 networks, so it's improved vastly. But we would have
13 the theme song that we played two or three times a day
14 promoting our news show.
15 JUDGE YOUNG: Was there still predominance
16 in sports in 1998 and 1999?
17 THE WITNESS: I don't remember. I stopped
18 working there in 1992, so it's been a while since I'e
19 watched them other than watching the Yankee games.
20 Now they're the Mets station.
21 JUDGE YOUNG: Thanks. ross.corn 22 JUDGE VON KANN: Who is next?
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CROSS EXAMINATION
BY MR. JESSE:
Good morning. My name is Russell Jesse. I represent the Public Television Claimants and this
is my co-counsel, Ron Dove.
If we could turn to pages 17 and 18 of your testimony, you talk about music being a part of public television programming and I believe in
speaking with Mr. Olaniran, you said that Sesame
10 Street and Mr. Rogers had been on in 1990 as well
To my knowledge, yes.
12 In fact, it had been on for a fair amount
13 of time before that. Yes.
15 And would you agree that documentaries
16 such as the Civil War aired on PTV in 1990 or that
time frame?
18 I think that was the date of the Civil 19 War. I don't know off hand. I know that Ken Burns'0 Baseball aired in 1994 and that succeeded, that was
21 after the Civil War.
22 And the documentary like programs you talk
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about on page 18, Nature, Nova, American Experience,
POV, the Living Edens, those also aired in 1990-1992? I believe so.
Q So you would agree that in this testimony
on page 17 and 18 you are not saying anything about an increase in the actual amount of music in 1998-1999?
No, I wouldn't know the amount of music on any network. I can only testify to the amount of our
awareness of music. Maybe it's promoted more or in
10 the case of PBS which doesn't have the promotional mechanism of network television, it's just played over
12 and over when they promote their own shows from within
and not other areas. So I really don't know.
Q And also when you were speaking with Mr. Olaniran, I believe you said that if all you were
16 hearing is ambient music, you'e watching a documentary. Is that right?
18 I wouldn't say that's absolutely in every case, but yes, if you'e watching something that is-- 20 if you'e watching Jaws without the theme music, 21 you'e watching a story -- if it's not a documentary, 22 they'e trying to make it look like a documentary.
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Sometimes in dramatic movies, when the bank is being held up, they don't have music there to create a completely different mood and music is still important because you notice the absence of music. And on page 18, you talk about some of the films that were shown on public television in 1998 and
1999. The Irish American, Africans in America, A Life Apart, and you describe these films as great films. In addition to the music on the films, can you tell us
10 what you think makes them great?
I don't remember how I was moved by the ones that I saw. Self-discovery, the Irish. I don' know much about the history of the Irish in America.
I know some of the history of the Irish in America,
15 but that's typical of the kind of fare you see on PBS.
It opens up a whole new world to you. I didn't know
17 that -- I'm not Hasidic and I know a lot about -- I
18 thought I knew a lot about the Hasidim, but if I saw 19 any part of that show, it would explain and show parts 20 of the history of that sect, if you want to call it
21 that, in America and how some of us have assimilated
22 and some haven'. I live in a city where there are
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millions of Hasidim, living in a particular area and also working in a particular area and I would say that
anybody who has seen this show would look at them in a different like and a like closer to the truth, rather than perhaps stereotypes or curiosity or awe or whatever emotion you might have.
Q And you would agree that these are high quality programs?
Yes, that's why they'e on PBS.
10 And you would agree that you can't see this programming elsewhere on television? Not necessarily. There's a little network
called AGE which -- it's not a clone of PBS, certainly, they have high quality. And The History Channel. There are other channels that have been
influenced by the content of PBS and have created
17 their own series of documentaries.
18 I can't imagine a television world without
19 The History Channel. I love seeing Hitler get his
20 every night on the History Channel. They don't show
21 it that much any more, but -- so PBS no longer has the 22 monopoly on great documentaries. They'e elsewhere as
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well.
Q Although you would at least have to agree
that PBS has a variety that you don't find on any of these single stations or channels that you'e mentioned?
Not necessarily. A&E has some and as I
said, The History Channel has some, but PBS is still the leader in certain kinds of programming, particularly English programs that never would find a
10 home anywhere else. There they are.
There is a channel BBC in America, I
12 think, but some of those are pretty obscure. PBS, you 13 don't need cable for it, so in that sense it reaches the entire audience.
15 Actually, what I meant by variety was that
16 you would have to agree that there aren't children'
17 programming on A&E that
18 Yes, there are. Oh yes, there is.
19 There's a show called something something for kids
20 where they explain the history of the world or Great
21 Events for Kids. They'e occasional, but I believe
22 A&E has one.
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Q You, yourself had a show on public television? Yes, I co-hosted Sneak Previews, 400 episodes or so.
And that added to the variety and quality on public television? I would like to think so. I would like to think so. There was also a subtle political debate
that went on for 10 of those 12 years between a
10 liberal and a conservative. Guess which one I am?
Q Thank you. I have no more questions.
12 JUDGE VON KANN: Thank you. Mr. Stewart?
13 MR. STEWART: Your Honor, we have no questions for this witness, but at the appropriate time I would like to cross examine Mr. Garrett.
16 (Laughter.)
JUDGE VON KANN: We will try to find the
18 appropriate time.
19 Canadian?
20 MR. VOLIN: We'l waive cross.
21 JUDGE VON KMK: Okay. I think that
22 completes everybody, does it not?
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We'e back to Redirect.
MS. WHITSCHEL: Just one second, Your Honor.
JUDGE VON KANN: All right.
MS. WHITSCHEL: We have no redirect
questions. Thank you very much, Mr. Lyons.
JUDGE VON KANN: We'l pause one second to see if the Panel has any questions. (Pause.)
10 JUDGE VON KANN: Mr. Lyons, you were asked a few times about whether the amount of music by which
12 I guess it's meant the minutes perhaps in which music
13 appears in movies or on television programs has
14 increased and I think the gist of your testimony is
15 you really haven't made a study of counting minutes, so you can't speak to that. But I gather it's your
17 view that whether the minutes have stayed about the
18 same or not, the prominence, the importance, the value
19 of music has significantly increased in the time
20 period you'e speaking to?
THE WITNESS: Yes, indeed. Because of the
22 emergence of technology and of other cable channels,
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specifically cable channels geared towards music, of the emergence of the art of music videos and the emergence of the notion that you can cross promote a
movie by making a video, a music video of the songs
that we hear in the movie, populated by people who don't necessarily have to be in the movie, but their work is heard. Also, the emergence of the technology
going the other way. People who appear in music
10 videos or who are recording stars becoming actors on
TV and in the movies. It seems to me that has
12 increased as the synergy and this cross promotion has
13 increased.
JUDGE VON KANN: Okay. I think that's all
15 I have.
JUDGE YOUNG: I have two questions. One,
17 you made reference in your oral testimony to the
18 advent of Dolby stereo.
19 THE WITNESS: I mentioned Dolby stereo.
20 The sound system in a movie theater increased by leaps
21 and bounds.
22 JUDGE YOUNG: When did that start
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happening?
THE WITNESS: I can't say specifically.
It seems 5 or 10 years ago, you'd hear a bird chirp and you hear it from the back of the theater. You
never heard that years ago. No matter how good the
stereo sound was, no matter how good the rest of the
sound was, now when you go to a movie, particularly one set in a forest or some place exotic place like
that, listen to the fauna, listen to the animals. You
10 hear it coming from all parts of the theater and that applies to the music too, I suspect. You can hear it
12 from all sides of the theater. That's the advent of
13 Dolby stereo which is I think 10 or 15 years old. I don't have a specific date, but it's fairly recent. 15 But it was prevalent back then too, it just wasn't in
16 as many theaters.
17 JUDGE YOUNG: Are you suggesting though
18 that that had an impact on this increase in value of
19 music?
20 THE WITNESS: I would think it would be 21 all part of it. If you hear part of the music coming 22 from all around you, it's the next best thing to being
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in one of those surround movies or being in the action. The whole theater becomes part of the
environment when the sound system is better. That certainly makes the music all part of the experience
to the degree it was not -- before, it was just up on.
the flat screen. Now it's all around you.
JUDGE GULIN: I remember 2001 hearing the
gorillas back here and that sort of thing. So it must have existed before that.
10 JUDGE YOUNG: In the movie 2001.
JUDGE GULIN: In the movie, yes.
12 THE WITNESS: I wanted to hang out with
13 the Dirty Dozen. I visited the set of 2001. Who knew?
JUDGE YOUNG: You also made reference
15 somewhere in your testimony to the cross ownership of
16 both the movie producing companies, as well as the
17 music producing companies. Will you elaborate on
18 that?
19 THE WITNESS: Time Warner, Sony, Sony
20 Music is a division of Sony. Sony is now owned by
21 Columbia. Those kind of things were not -- Universal
22 has a whole music division. Same company as
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Universal. That didn't exist to the extent that it has today, over the years.
JUDGE YOUNG: What do you think the impact
s P
THE WITNESS: The impact is, it seems to
me and I haven't checked film by film, but if Universal is making a big movie musical, chances are they'l make sure that the sound track on Universal Records or whatever their subsidiary is is in the stores with the opening of the movie. It makes -- if
you call somebody in your own company and say hey, promote this movie, let's make the album in stores the day it opens, that's a product of conglomerates that
didn't exist before. It may come at the expense of
quality in films say some. That's why the whole independent film movement has arisen, but for big
17 blockbuster movies, the music division is an important
18 part of that company's promoting that movie.
19 JUDGE VON KANN: Any last questions? 20 Okay, apparently not. Mr. Lyons, thank you very much.
21 You'e excused and we'l recess until 10 of 2. 22 (Whereupon, at 12:49 p.m., the hearing was
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recessed, to reconvene at 1:50 p.m.)
JUDGE von KANN: Good afternoon. Before
we begin, the Panel did discuss over lunch the matter
raised by Mr. Dove this morning, and I think we are
frankly, Mr. Dove, quite skeptical that anything in the prior proceedings determinations amounts to a ruling as a matter of law, that music's share must be taken off the top. Our rather strong inclination is that if a record properly supported calculating it in
10 some other way, we would not be precluded from doing so. Whether this record would support doing it in
another way remains to be seen.
So I think we'e not prepared to make any ruling at this point along the lines you suggested. However, you certainly have a right to file a motion if you wish, we'e not precluding that, and other
17 parties may respond to it. And we'l rule if we get
18 such a motion. I think we would -- I don't want to
19 encourage people to file motions that may be
20 pointless, so I think I would say you have a fairly
21 heavy burden of persuasion to convince us that that is
22 a matter that's settled and that that's the only
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permissible way for music's share to be calculated.
But we won't refuse to read anything that you decide to put together and submit if you wish to. That's up to you. Anything else to add on that?
Okay. Mr. Mause.
MR. MAUSE: Yes, Your Honor. I would like
to call to the witness stand Mr. Frank Krupit on behalf of the Music Claimants.
WHEREUPON,
10 FRANK KRUPIT
was called as a witness by Counsel for the Music
12 Claimants, having first been duly sworn, assumed the
13 witness stand, was examined and testified as follows:
14 DIRECT EXAMINATION
15 BY MR. MAUSE:
16 Q Can you give us your complete name and
17 current position?
18 Yes. My name is Frank Krupit, and I am
19 the Assistant Vice President of Operations, Analysis
20 and Information at BMI.
21 Can you briefly trace your educational
22 background?
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Yes. I have a degree in musicology from
Iehman College in New York City, a Bachelor's of Arts degree, and after that I'e taken some courses in statistics and have a certificate in statistics from
Q And can you trace your career since you got out of college to the current time?
The most important is my career at BMI
which spans 29 years at this point. And I'e had
10 several positions at BMI over the years, most of which involve the analysis of music, music use on various
12 media, whether it's radio, television or other types
13 of sources that use music.
Q And what are the responsibilities you have
15 in your current position?
16 Okay. Currently I have two main areas of
17 responsibility. One is I am responsible for the
18 statistical sampling of radio, commercial radio, for
19 the purpose of feeding BMI's distribution system for
20 royalties. And, secondly, I'm in charge of doing data
21 analyses and studies for a variety of business needs,
22 such as internal business trend analysis for license
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negotiations and for litigations such as this.
Q And how long have you had those responsibilities?
About 15 years.
MR. MAUSE: I would ask if there's any voir dire of this Witness?
JUDGE von KANN: Apparently not.
BY MR. MAUSE:
Q Mr. Krupit, your testimony describes a
10 music use study which you participated in, and I'm going to ask you some questions with reference to that
12 study. I guess, first of all, the study compares
13 1991-92 with 98-99, and in doing that comparison you chose certain stations as representative of 91-92.
How were those stations chosen?
16 Okay. Nineteen ninety-one and 1992
17 stations were actually given to me. I was told these
18 are the stations that I am to collect music use information for.
20 Q And who were they given to you by?
Dr. Peter Boyle of ASCAP.
22 JUDGE von KANN: Mr. Krupit, could you
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keep your voice up a little bit. It's a bit hard for the people in the back to hear, okay?
BY MR. MAUSE:
Okay. And then the -- and that group of
stations from 91'92 was a group of do you remember how
many stations? There were ten stations. They included the top five stations in the Larson data in terms of fee generated, as well as a sampling of five smaller
10 stations. And then
Q How were the stations for 98-99 selected?
12 Okay. Ninety-eight and '99 started with
13 the same ten stations. There was an inherent change
14 between 1991-92 and 98-99 in that WTBS, which was a
15 major contributor to the Fund in the earlier set of
16 year, was dramatically reduced to just a small
17 fraction in. the smallest set of years. So we felt we
18 needed to expand the study, and so instead of the top
19 five stations ranked by fee, we went to the top nine
20 stations, while keeping the original ten in tact for
21 continuity purposes. So, in essence, we went from ten
22 stations to 15 stations between the two sets of years.
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Q Was it 15 or 14 in the Fifteen.
Q Fifteen in 98-99. You went from the top five to the nine Right.
Q And I guess you kept TBS in the study.
Yes, TBS. So TBS was no longer in the top
five, it's in the top nine; in fact, it was way down
the list. So when we selected the top nine in 98-99
10 there was actually five new stations that were
included, so that's how we get from ten to 15.
12 Q So you had ten stations in 91-92 and 15
13 stations in 98-99. That's correct.
15 Q All of the stations that were in in 91-92
16 were also in in 98-99; is that correct.
17 Right.
18 Now, in sampling music use, it appears
19 reading the study you did not sample all -- you did
20 not compile all the music used by those -- each of
21 those stations for the two-year period but instead did
22 a sample of that; is that correct?
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That's right. We did a sample using -- we took a sample of seven days for each of the four years in the study 91-92 and 98-99, and that sample was
based on the FCC composite week, which was something
that the FCC set up, I believe it was 1983, which they
used for a variety of purposes, and we just piggybacked upon that and built the four sets of the dates from the four sets of years off the composite week.
10 Okay. Well, let's just walk through that.
In other words, there was something called an FCC
12 composite week back in '83. Right.
Q Do you know if the FCC continued to have a composite week after '83'? I'm not really sure if they did or they
17 didn'. I know for '83 it was something they
18 established, and there may have been some earlier than
19 that. That may have been the last published composite
20 week that they assembled, and I think that was the
21 case. So what we did is that we took the very last
22 one and moved forward with that ~
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Q Do you know what they used the composite
in general terms, why the FCC had a composite week? Generally, I know they used for some licensing issues, tbe details which I'm not familiar with.
Q Okay. This is just -- for purposes of tbe
record, this is a matter of public record. The FCC had a composite week when it was engaging in a more substantive regulation of broadcasters to try to
10 sample what they were broadcasting. If tbe PCC didn.'t
have a composite week after 1983, bow did you develop a composite week for 91-92 and 98-99?
What we wanted to do was establish three
We wanted to establish, one, randomness, which is important in any statistical
study. Two, we wanted to capture each week day,
17 whether it was a Sunday, Monday, Tuesday, Wednesday,
18 Thursday, Friday, Saturday. And we wanted to capture
19 seven random weeks throughout the year. The FCC
20 composite week allowed us to do that.
21 So what we did was that we started with
22 the original 1983 PCC composite week and moved the
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days around for each of the four years in the study so
that we could come as close as possible to those original dates and still have the seven days of the week covered in the study.
Q Okay. And I would turn to Page 6,
Paragraph 15 and this is the testimony of Nr. Krupit as revised pursuant to our motion. Does that set forth the days that were ultimately selected? Yes, these are the dates.
10 So, again, just to walk through this,
under 1983, that is the just the FCC composite week itself, right'? That's right.
Those were the dates the FCC used in 1983 to have a representative sample of broadcasters programming. That's corrects
18 Q And then going to 1981
19 Nineteen ninety-one.
20 Q '91, we see the data are a little bit
21 different. How did you pick those days in '91?
22 Again, we wanted to maintain -- we could
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have done this any number of ways. We chose to keep the days of the week within the same weeks as much as
we could. So we adjusted the days of that week so
that we could maintain, say, a Sunday in that week and
a Monday in the next week. And just for continuity's
sake, we just tried to do it that way, and that's what
we did.
So you were picking a day, the Sunday
closest to April 17 in '91; is that a fair
10 That was our intention, yes.
Q Okay. And so you wind up again with all
12 seven weekdays represented in '91, right?
13 That's correct.
And you followed the same process, you
15 wind up with different dates, because the year doesn'
16 have a number of days that's an exact multiple of
17 seven, so these things shift from year to year.
18 That's right.
19 Q But you had the same process in '92.
20 That's correct.
21 Q And skipping for a moment, you had, is it
22 fair to say, the same process in '99?
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That is correct.
Q Now, I turn your attention to the second row from the right, which is 1998, and that appears to be a bit different. Yes.
Q Can you explain that to us?
Yes. Our intention, again, was to
maintain the same days of the week, within the same
weeks. As it turned out, it didn't work out that way
10 that year. We actually selected a different set of days of the week. It appears to be a transposition
12 problem within an Excel spreadsheet. I believe that
13 these dates were for the year 2000, they would fall
into the same days of the week. So, in essence, we introduced another level of randomness to the study.
16 I mean you didn' intentionally pick those
17 seven dates; this was a matter of some kind of a
18 clerical error?
19 Yes, it was a clerical error.
20 Okay. But we wound up -- let's just so
21 the record clear the dates you sampled were those
22 dates listed on Page 6 under the '98 column.
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That's right. And let me just state this about those dates: If you would compare those dates to tbe other four years, you would see again they are
very close. So that the same weeks were still pulled,
we still have tbe same seven days of tbe week represented throughout the study, but for those dates chosen the weekdays got a different way.
Q So we have a -- for example, we have a
Sunday and July 5, '98 is a Sunday.
10 Yes.
Q And instead of having a Sunday which would
12 have been in the second or third week of April, we
13 have a Sunday in the first week of July.
14 That's right.
15 Q But then tbe Wednesday instead of being in
16 tbe first week of July is in tbe second or third week of December.
18 Right.
19 Q And in comparison with you original
20 testimony, Page 6 before it was changed, is it fair to
21 say that the dates are the same; that is, we still
22 have July 5 and September 21, those dates were listed
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on Page 6 of your original testimony, but the difference is that that testimony erroneously represented those dates as being different weekdays?
That's right. And I would add to that that everywhere else and the remaining testimony for Music these dates are used and these are the dates that are part of the study.
Q Okay. Including all exhibits.
10 Q Okay.
And as you said, the only difference is
12 the sequence of the days of the week.
13 Q Now, once you had the stations and the dates, is it fair to say the next attempt -- the next
15 step would be to attempt to identify what programs ran
16 on those stations on those dates?
17 That's correct.
18 Q And how did you go about doing that?
19 BMI contracts with a company called TV
20 Data Technologies, and TV Data is a private company
21 that their business is to collect program listings of
22 every television station, cable network in the nation,
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and they sell that information to newspapers and to
BMI and to ASCAP, I believe, and to many other
entities. So in BMI's normal course of business, BMI
receives tapes from TV Data on a weekly basis, and that becomes input to its television distribution processing.
Q So they provide a list for any given station. They'l tell you what aired at a given time on a given. date.
10 That's right, for every station in the nation.
12 Q Now, when did TV Data begin providing that
13 information?
I believe BMI started with them around
15 1990.
Q Okay. Now, is there a reason that TV Data
17 is a better or different source of that as opposed to
18 doing what most of us do when we want to figure out
19 what's on the television, which is to look at TV Guide
20 or the newspaper?
21 Yes. Nell, TV Data arose as a competitor
22 to TV Guide, and they arose because -- and they went
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into business basically to the extent that they were
doing the job better than TV Guide ever did. And in
fact BMI, I believe ASCAP as well, used TV Guide prior
to TV Data since they were the only source of this
information. TV Data was a much better product, we
found, which is why we shifted over to TV Data.
And for a couple of reasons. One, the computer tapes that they sent us was much easier for
us to work with in our computer systems. Two, they
10 were much better at identifying specific episodes of
series, while prior to that TV Guide rarely gave us
12 episodic information. And, three, TV Data would often
13 be able to discovery preemptive programming. In other
words, when an originally scheduled program was
15 replaced with a different program, TV Data checked
16 that and updated their database before sending BMI the information.
18 Q Let me just run through to be sure we have
19 a clear record on that to give some examples. The
20 specific episodes, in other words, TV Data would tell 21 you if you were -- if it was a Honeymooners, Gleason
22 and Art Carney -- we talked about that a little
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earlier -- they would tell you which episode ran at eight o'lock on a Wednesday night.
To the extent that they knew it, yes.
Q Now, for example, the Honeymooners, I used to watch that a lot. They have the one episode where Ralph Cramden is an expert on identifying music and Art Carney plays music and helps bim prepare for this
quiz show. And 1 think -- we were talking, you remember that episodeP
10 I remember that episode vividly.
watched it many times.
12 Q And at tbe end he can't -- what is it, he can't identify
Well, I think he goes on to the TV show,
Name that Tune, or something like that, because be's
an. expert on all these songs. And his friend Ed
17 Norton would always play a Swanee River as a warmup
18 and Ralph gets sick of it. And they go through -- on
19 the TV show they go through all the various questions,
20 and there's a $ 64,000 question, name that tune, and
21 they play Swanee River. And Ralph Cramden says tbe
22 composer is Ed Norton, and of course he loses.
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Q So that episode of Honeymooners might have had more music than the average Honeymooners episode. That one certainly did, yes.
Q Well, we won't get into whether that was
ASCAP or BMI music but That's phase II.
Q And TV Data would tell you, at least with greater precision, that at a given time it was that episode that ran rather than some other episode of the
10 Honeymooners. That's right.
12 JUDGE YOUNG: Did they identify it by number or by narrative'P
THE WITNESS: It would depend. In those older TV showsTunes'nit's mostly the name of the episode, so it would have a name. It might be called Name that 17 Tune, I don't know offhand, but it could be called
18 Name that some later episodes of other TV
19 shows, sometimes it would just be an episode number.
20 BY MR. MAUSE:
21 Q Now, you talked about preemptive
22 programming, and, again, to be sure we have a clear
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record, I want to talk about another example. We'e all been talking about baseball teams and baseball games. All of you have known pain, but I was a
Brooklyn Dodger fan and my most vivid recollection was
when I was in the first or second grade and my parents
would make me go to bed at eight o'lock at night.
And I said, "Why don't you just let me see the first inning of this Dodger game and I'l go to bed at the end of the first inning. If it's before eight 10 o'lock, I'l go to bed before eight o'lock, if it' after eight o'lock -- so they said, "You'e got a
12 deal
13 And we watched this game, it was scheduled
14 to start, I think, at 7:35. They, of course, had a
15 little pregame music, and then the game started. And
16 the Dodgers I know they batted a round -- the last out
17 was made by Pee Wee Reese, and they batted around
18 twice. They must have scored 13 or 14 runs in the
19 first inning, and I think they were playing the
20 Chicago Cuba, but I don't know. You'l probably look
21 that up an tell me I'm wrong. So that game lasted-- 22 that first inning -- and, of course, in those days
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when they replaced a pitcher that took forever. So the first inning lasted till about 9:15 that night, I
think, and the whole game lasted a lot longer, and so
the program after that game was either seen later or not seen at all. Right.
Q And what you'e saying is TV Data would
pick up that whereas TV -- if you just looked at the
TV Guide, it would just tell you what had been
10 scheduled.
Well, TV Guide would never to do that, and
12 TV Data would make an attempt, and very often they
13 were able to do that. Not in all cases, of course,
14 because there are 10,000 TV stations -- over 1,000 TV
15 stations in the nation. So they did their best but
16 they do quite a bit, whereas TV Guide never did that.
17 And that's important to get an accurate accounting of
18 the program listings for our business.
19 Q And then you have some sports events, like 20 baseball games, that are rained out, and so it shows it's on the schedule but it never really happens.
22 Right. And in that TV Data would show the
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replacement, usually it's a rainout movie theater or something along those lines, and we'd get the name of the film instead.
Q And sometimes emergency public
announcements when there's some fast breaking news
event may preempt programming for that. If it's an entire program, yes. If it' a five-minute break-in, it wouldn't be relevant to that.
10 Q Okay. Now, just to get an idea of the scale of the -- and, again, we'e just talking about identifying the programs that ran
13 Right.
Q -- what was the volume of programming that
15 had to be identified for the study?
16 Well, in all, over the course of the four
17 years, there are over 9,800 airings of shows. That
18 includes series, films, sports, all the various kinds
19 of programs that are out there. And, of course,
20 there's about twice as much in '98 -- or 5 percent as
21 much in 1998-99 as in 91-92 because, of course, we
22 have 50 percent greater number of stations in those
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later set of years.
Q You had the extra stations in the later
year. You bad tbe 15 stations in 98-99. Right.
Q And so the bours, if you wanted to figure
out how many hours, I guess you'd just multiply the number of stations times seven days, times 24 for each year. That would give you the number of hours of programming.
10 Approximately, but, of course, you would then have to still remove the network programming,
12 network being ABC, CBS and NBC, since they'e not part
13 of this proceeding.
Okay. So there was
15 It skews those bours somewhat.
16 Some network programming removing. And
17 you might not have exactly 24 hours in the day because
18 what did you do for shows that began or ended
19 around midnight?
20 You have to make a rule for consistency's
21 sake, so tbe rule we had was that we only used
22 programs that began within each 24-hour period of each
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day of the study. So if -- let's say at the beginning of the day a show started at 11:30 p.m. tbe previous day and lasted one hour, then our first show for the
day that we studied would begin at 12:30, so there
would be a half hour cutoff there. To the extent that that day ran exactly to midnight, then we'd have 23.5 bours in that particular day. Similarly, we'd get toward the end of the day. If you have a show starting at 11:30 p.m. on a day that you studies and
10 it ran for one hour and your programming day started exactly at midnight, then that day you would have 24.5
12 hour's .
13 Okay. So you might not have -- it might
14 not come out even to an exactly even multiple, because
15 on a given day you might have slightly more or
16 slightly less than 24 bours of programming.
17 Yes. That did happen in many cases.
18 Q Now, Exhibits -- I guess I ask you to turn
19 to Exhibit 30 and 31, and let's start with 30. Can
20 you tell me what that is? 21 Yes. This is a listing of -- tbe beading
22 says it's a listing of all programs that aired in the
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91-1992 composite week. So for the ten stations on
the seven days for each of tbe two years, so 14 days in all, these are the shows, individual shows or episodes of shows, that aired. And now I might point
out on the first page, 21 Jumpstreet. This is where
tbe description, we actually see the individual names of the episodes.
JUDGE YOUNG: Right.
THE WITNESS: You asked for earlier.
10 JUDGE YOUNG: Oh, so there's a description column.
12 THE WITNESS: The description column is
13 often the episode name when it's a series. So we can
14 see for 21 Jumpstreet tbe various episode names are
15 listed.
16 BY MR. MAUSE:
17 Q And when you said there were 9.800 airings
18 of shows, it's not that there are 9,800 shows in this
19 exhibit, but if 21 Jumpstreet aired on three different 20 three stations, that would be three airings; is that
21 correct?
22 That's correct. So the 9,800 would be all
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the shows in Exhibits 30 and 31 multiplied by each one's number of airings during the composite week study.
Q And if it aired at the same time, on the same day, on two different stations in the study, would that be one airing or two airings? That would be two airings.
Q Two airings, okay. And Exhibit 31, is it fair to say--
10 JUDGE von KANN: One question about 30
before we go on. How do we deal with the -- how did
12 you deal with cartoons? I'm looking at the first
13 page, and we have over Adventures of He-Man, T-Rex, the Little Mermaid and it simply says cartoons.
15 THE WITNESS: Right.
16 JUDGE von KANN: And I guess there's more
17 than one episode of the Little Mermaid, so how were 18 you able to run that down in terms of which one it
19 was?
20 THE WITNESS: That's a good question. I 21 think we'e going to get to that.
22 JUDGE von KANN: Well, get to it when you
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get to it. That's fine.
BY MR. MAUSE:
Q I guess it's fair to say that TV Data does not always give you the individual episode, is that right?
Right. And that's very common in cartoons.
Q Okay. So they'l just tell you it was a certain type of cartoon without identifying which
10 particular episode. That's right
12 Q Okay. And Exhibit 31, is that the list of
13 programs for the 98-99 composite week? That's correct.
15 Q And that's similar to Exhibit 30. That's exactly right.
17 Q Okay. Now, when you had this list of
18 programs that ran -- we now have the stations, we have
19 the dates, we have a complete list of programs. How
20 do we figure out how much music was on the programs?
21 Okay. BMI and ASCAP in the normal course of their business receives from producers of shows,
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for the most part, as well as networks, cue sheets.
Cue sheets are listings for each episode of a show or show or film a listing of each individual performance that aired on that particular show, along with the composer and publisher and the exact timing to the second of each piece of music that played.
Q And I ask you to turn to Exhibit 32. Do
you have that before you? Yes.
10 Q Is that a sample of a cue sheet? Yes. This is a sample of a typical cue
12 sheet. This is an episode of the Drew Carey Show, and it lists each of the individual music performances, you see most of which were written by Snuffy Walden, coincidentally.
Q Is that the same Snuffy Walden that
17 testified here Friday?
18 The very same.
19 Q Okay. And we now have entered into the
20 record the reason for his nickname Snuffy, so we don'
21 have to go over that again. And so this would show
22 again I guess for this particular episode, Number 22,
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how much music was used. That's exactly right.
Q And over on the right hand corner, that' -- or right hand row, is that the duration of each of those music segments in the show?
Yes. The column under time on the right indicates in this case the seconds of each specific piece of music or the number of seconds that that music aired on that particular episode.
10 JUDGE von KANN: Is that one second on the first item there?
12 THE WITNESS: One second. That happens to
13 be a logo, which is often three to five seconds, not
14 often one second, but in this case it is one second.
15 BY MR. MAUSE:
16 Q Okay. Now, this cue sheet it says,
17 "Produced by Warner Brothers Television." That means
18 the show was produced by Warner Brothers Television.
19 That's right.
20 Q Who generated -- do you know who generated
21 the cue sheet?
22 Generally, it's the same producer, so
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Warner Brothers would have created this cue sheet.
Q So they create a cue sheet and then mail
it to BMI and ASCAP? Yes.
Q Okay. And you get these cue sheets from a number of producers of different kinds of television programming?
Many, many producers, and they arrive
every single day. And they are used -- as I mentioned
10 earlier, they are used to create BMI's internal cue
sheet database. What BMI does is take these paper cue sheets and convert them to computer files of cue sheets. So, for example, in BMI's cue sheet database there will be an entry for the Drew Carey show,
15 Episode, Drew v. Mimi 2. I guess that's a sequel to
Drew v. Mimi 1. And in that cue sheet record in BMI's
17 database, it would list each of these individual
18 performances of music. And I might add that ASCAP
19 would have -- basically has the same process and the
20 same type of database.
21 Q Now, do you get cue sheets for all of the
22 programming that airs on broadcast television?
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No, we do not. We attempt to. The intent is always to get 100 percent of the cue sheets that we can, but either they -- sometimes they will not send it to us or for certain kinds of programs they never create a cue sheet. Of course the problem with that
is that the songwriters and publishers have no way of
getting performance royalties without BMI or ASCAP having cue sheets in their database.
Q Do you make an effort to get more cue
10 sheets than you simply get over the -- sent ever day? Absolutely. There are a couple of people
12 that I know of at BMI whose sole purpose is to attempt
13 to get as many cue sheets in the house they possibly
14 can.
15 JUDGE von KANN: Is that part of the 16 contract, the licensing contract with -- I mean this
17 one, for example, is shown on the first cue sheet, ABC
18 network, which has, I guess, a blanket license with
19 BMI for use of your repertoire. Is one of the
20 conditions of that contract that ABC provide you with
21 complete cue sheets so that you can keep track of what
22 they'e doing?
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THE WITNESS: Well, there are three major networks. I believe it is a part of their contract,
and we do get almost complete coverage on the three major networks in terms of cue sheets. For local television, that's not the case. There's no such provision in their contract or license.
BY MR. M%USE:
Q Now, do you get some cue sheets from local television?
10 Generally, the cue sheets that we get from local television are for series that originally aired
12 on networks that go into syndication and now are
13 broadcast widely over all of many local television stations. In addition to that, there are a set of
15 first-run syndicated shows that only are broadcast on
16 local television, and those BMI does get directly from
the producers. So it's a combination of the two.
18 Now, turning to Exhibit 33, can you
19 describe what Exhibit 33 is?
20 Yes. Exhibit 30 contain all of the
21 programs that were aired for the composite week on the
22 ten stations in 1991 or 1992. The listing in Exhibit
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33 contains a subset of those shows where we had cue
sheets that we can identify tbe music for. So all of
tbe items in Exhibit 33 are in Exhibit 30, but not vice versa.
Q So there are some things that are in 30
that are not in 33 That's correct.
-- where you didn't have a cue sheet. But
everything that's in 33 should be back in 30.
10 Yes, they are.
Now, were there some situations where you
12 didn't have a cue sheet for tbe actual episode, tbe
13 specific episode, and used some other calculation or methodology to determine the music use? That's right. For series, there's
16 actually two conditions under which this operation
17 works. One is it's possible that TV Data did not know
18 or give us the exact episode name of a series or that
19 they did give us the exact episode or name of tbe
20 series and BMI or ASCAP did not have that particular
21 cue sheet for that specific episode. In order to
22 create the music content for that show, we created an
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average of the existing cue sheets for that series. That process basically is taking all of tbe cue sheets
that we have in the house for a series, and sometimes they can number in the hundreds, and simply averaging each episode -- averaging all tbe episodes together to
make a single average, to represent any particular episode in that series. For example, if you bad one series of ten minutes -- let's say you had ten episodes and ten
10 minutes and another ten episodes at 12 minutes per
episode. Your average would be 11 minutes of music
12 per episode, and you would use that whenever we have
13 an airing of that series and did not have a cue sheet
for it or we did not know the series -- the episode
15 name.
16 Q Okay. So that we could call, I guess, the
17 use of an average cue sheet. Is that sometimes called
18 an average cue sheet?
19 It's always called an average cue sheet.
20 Q Okay. And just returning to the whole,
21 the beginning of the cue sheet process, we have -- for
22 the ease of Mr. Krupit's testimony, we'e brought the
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cue sheets here to the hearing room, and are those boxes over there the cue sheets that were used in this study? Those are the cue sheets used in the study.
Q Do you know how many boxes that is about? I think it's at least 15.
Q Fifteen boxes or so. Now, was there another thing called a generic cue sheet that was used
10 at times?
Yes. A generic cue sheet is not something
12 that BMI creates but is something that is supplied by
13 a user of a show when it's the same music aired every
single time that show is performed. A good example of
15 that, I believe, is the McNeil-Lehrer Report which
16 uses the same set of music, the same theme music and
17 bumpers in every show, and they'e supplied us with a
18 generic cue sheet. It's similar in type to an average
19 cue sheet except in the sense that it's one cue sheet
20 that will be in our database that will be used every
21 time an episode McNeil-Lehrer Report would be aired.
22 And there are many examples of that.
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Q So is it fair to say the producer makes
some kind of a representation that this is a fair statement of the music used for some group of episodes or all of the episodes of a particular show?
It's all the episodes. And let me add that a series sometimes change -- they change their
music content over time. So a series might use a specific group of musical compositions or composers for one set of years, let's say from -- well, let'
10 take 91-92, for example. And then when we come to 98-
99, they may have a separate set of music for that
same series. So there might be a different generic
13 cue sheet used for each a specific set of years. Same for averages, by the way.
Q So the producer might say, "We have this
generic cue sheet that covers our programming up to
Episode Number X, and then when we start with X plus
18 one we have a different generic cue sheet."
19 Yes. It's usually by season. So you can 20 use this generic cue sheet for the season for 1999 and
21 use this generic cue sheet for season 2000. That' 22 how usually it would be done.
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Now, did this review of the assembly of the cue sheets, review of the cue sheets, generation of average cue sheets, did this take a considerable amount of time? It did. It's actually in two steps. Tbe first step of doing all of this is really part of our
ongoing processing that BMI does in its normal course of business. There's a tremendous amount of data in here, and it would be very difficult to do on our own,
10 but, basically, what we need to do then is to take
that as a starting point and then go further and make
12 sure everything is as it should be. Because when you
13 have a sample you want to make sure you have
14 information in tbe best possible manner it could be.
15 And did a number of people work on this
16 over a period of time?
17 A number of people in. a number of
18 different areas as well. For example, our TV
19 Operations Department in Nashville, they were the
20 experts at music use -- let me rephrase that. They
21 were experts in matching shows to program listings.
22 That's their job. There are people who do nothing but
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that. And they'e the people who did this
identification. And then there are people on my staff
who did a number of checks and balances and make corrections where necessary to make sure that the study is a fair one.
Now, when you say match shows to program listings, I guess you get a cue sheet from Exhibit 30 or Exhibit 32 and that has a show, an episode on it, and you'e matching that name or title or episode to
10 whatever TV Data provides to you. That's right.
Q And in many cases, of course, it's the same exact words, so they can make the match. Yes.
But is it true that in some cases there
are slight differences in the way things are
17 described?
18 Very often that's the case, and that's why
we have a dedicated group of people who do that
20 matching, so they recognize the same patterns over and
21 over again and they can match the proper program listings with the proper cue sheets.
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Q Now, in doing all of this matching, generating generic cue sheets, average cue sheets, did you follow the same procedures in 98-99 as in 91-92? Yes, of course. That's the proper method
of any study. If you want to have apples to apples comparison, you follow the same procedures.
Q Now, I call your attention to Exhibit 34
and turn to Page 44 of that exhibit. This is the top of the page, the second and third lines, do you see
10 that? Yes, I do.
12 Q Major League Baseball on Fox and it lists
13 July 12, 1997, St. Louis at Chicago Cubs, and the
station is WGN. Now of course that date is in 1997
15 but this is in 98-99 composite week. Have you
16 discovered that there is a problem with that listing?
17 Yes. I don't think that that was the
18 correct match that was done on that show and the show
19 that's directly beneath it. On the date that those
20 of course the date is not on this listing, but the two
21 dates that this refers to, those two sets of teams did
22 play, and it seems like the researcher tried to match
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those sets of teams to a cue sheet. So in other words, the first date I believe was -- I think they were, actually -- one was April and one was August.
And one of those dates was St. Louis at the Chicago
Cubs in 1998. Interestingly enough, as we learned
this morning, that's the year that the Sammy Sosa and McGuire face off, and I think what happened there was that the researcher looked for a cue sheet online, on the database that had a combination of those two
10 teams. He found one and matched it. And the same thing happened for the second show there.
12 Q Okay. So if they -- in other words, is it
13 your testimony they probably did not have the actual
14 cue sheet for the game in '98?
15 I doubt it. I can't be totally sure of
16 that, but my feeling looking at this and the experience is that this was probably a
18 misidentification.
19 Q Okay.
20 Although I might add at this point that
21 the Chicago Cubs did win that game.
22 GARRETT: Definitely a
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misidentification. (Laughter.)
JUDGE YOUNG: Looking at that example, where it says in that column, "Music Minutes Per Show Episode
THE WITNESS: Yes.
JUDGE YOUNG: So this would be for the full extent, if it's a game, two or three hours?
THE WITNESS: Usually these are slotted
10 for three hours.
JUDGE YOUNG: On the other hand, some of
12 these other programs would be -- when you'e talking
13 about per show episode, you'e talking about either a half hour or an hour.
15 THE WITNESS: That's exactly right.
16 BY MR. MOUSE:
17 Q Now, again, focusing on that music minutes
18 per show episode, if a show runs -- let's take a show
19 that runs an hour but has 16 minutes of commercials,
20 so there's 44 minutes of actual programming. Does the
21 number there represent the music including the music
22 in the advertising or just the music in the 44 minutes
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of program?
No. The music that's contained in the column that says, "Music Minutes Per Show Episode," which in fact is the amount of music used in the study, is just the music that's contained in the cue sheets, which is of course only the music played
during the program itself. So if we had -- let's say it was a one-hour show, then that particular episode of that show might only have -- it would only take up
10 46 minutes of the hour, and the music that we would list here is only within the 46 minutes. And any music that's played outside of the program, say in commercials and promos, would be in addition to the
minutes that we indicate here.
And we -- did you for any purpose include
16 the minutes from those other 14 minutes of advertising
17 in your calculations?
18 No, we did not. They are excluded from
19 the study.
20 Q Okay. Now, your testimony indicates that
21 as a result of the study -- well, again, turning to
22 Page 9 of your testimony, you indicated that you were
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able to identify music duration for 77 percent of the
programming in 91-92 and 73 percent of the programming in 98-99. That's correct.
Q Okay. Now, the numbers in Paragraph 21 you say you identified 43,920 minutes of music in 22,003 hours of programming in 91-92 and 65,324 minutes of music in 31,028 hours of programming in 98- 99. First, let's look at the minutes of music. Is
10 that derived just by taking the music minutes in
Exhibits 33 and 34 and then multiplying them by the
12 number of times the show was performed?
13 That's exactly right.
Q So that gives you the gross minutes of
music. And where did the hours of programming come
16 from?
17 The hours were actually the broadcast time
18 that was allotted or slotted in for that particular
19 show, not the actual program time. But for example
20 we'e just talking about the minutes of music that are
21 usually devoted to commercials and promos, about 16
22 minutes per or 14 minutes per hour, whatever that
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number is. The minutes that we include here just include the minutes in the program itself -- minutes
of music, rather, by the cue sheets, but the hours are the total hours slotted for the broadcast itself. So it would be the full hour of an hour show as opposed to the 46 minutes of actual air time of the program itself.
Q Okay. So, again, for the purpose of these numbers, and, again, just to be absolutely clear, to
10 give an example, let's say there had only been one program, and that program had a 60-minute slot but it
12 only ran. for 46 minutes because of the advertising.
13 And in those 46 minutes, there was 15 minutes of
music. As I understand what you'e saying, you would
15 the number you would use in Paragraph 21 you would
16 say there was 15 minutes of music in one hour of
17 programming.
18 That's exactly correct.
19 So for the purpose of the hour of
20 programming, you use the entire time slot but you'e
21 just taking the minutes of music in the program
22 itself.
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That is correct.
JUDGE von KANN: But why did you exclude from your count the music during commercials? We'e
had some discussion here about whether music during commercials is compensable in this proceeding, and frankly I haven't gotten a very clear answer from
anybody yet. Maybe it will emerge. But we know
there's a lot of music in commercials, so why -- did
you keep that out of your study because you were
10 instructed by counsel that it's not compensable or something?
12 THE WITNESS: Well, whether I was
13 instructed or not, there's not a similar source like
TV Data that can identify what commercials were aired,
15 nor do we have cue sheets for commercials. So to do
16 something like that is pretty much impossible.
17 JUDGE von KMK: You didn't have the data
18 to do it.
19 THE WITNESS: Exactly. 20 JUDGE von ~: Okay. 21 THE WITNESS: Not to be able to do that,
22 not just for these purposes but for other purposes as
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well.
BY MR. MAUSH:
Q Now, it has generally been our position consistently through these proceedings that we'e not seeking compensation for music in commercials. And, again, that data is not regularly kept. Your testimony also covers a description of evidence of music in radio broadcasts on distant signals. Yes.
10 Q And that starts at Page 10 and runs
through Page 11. Do you have before you?
12 Yes, I do.
13 Q Can you describe what you did in that regard?
15 What we did here is to collect information
16 that exhibits the continued use of music radio
17 signals, most of which are FM on a variety of cable
18 systems. That evidence is a combination of Statement
19 of Accounts that are filed as well as logs that are
20 produced by BMI's Licensing Department for whatever 21 purposes they use it for. And those exhibits simply show that music is used quite a bit on retransmitted
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signals.
Q Okay. I know the testimony describes
commercial radio stations. Was that what you were studying? It was pretty much any radio station that aired. I believe most of them, if not all of them, were commercial radio. I'm not sure that's the case,
but I think the important fact is that it's FM -- for
the most part FM music radio is retransmitted over
10 distant signals today -- or 98-99 as it was in the past.
12 Q Okay. Now, you understand that the
13 arbitrators have expressed an interest in trying to determine music use in 1983, and in that regard are
15 you undertaking an effort to attempt to determine what
16 can be done?
17 Yes. We'e taking a look, we have some
18 people working on this as we speak. And we'e not
19 sure what we would be able to accomplish, we'e still 20 in the early stages of collecting data. Nineteen 21 eighty-three data is a lot spottier than the more
22 recent years, than the '90s, and I'm not sure we can
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even produce any kind of an apples to apples
comparison. But whatever we can possibly do we'e attempting to do it now. Okay. Thank you. That's all I have on direct, Your Honor. JUDGE von ~: Okay. One question about this last point that it's spottier back in '83. I noticed in tbe -- I'm not sure where it is bere in your testimony where you refer to the percentage of
10 cue sheets, 77 and 73, I think it was, that you got.
THE WITNESS: Right. JUDGE von ~: Looking at Page 9, two questions about that. You say these figures represent
77 percent of the programming for 91-92, 73 percent of the programming for '98 and '99. Is that in terms of number of programs or number of minutes'
THE WITNESS: That's the number of tbe
18 hours on the air.
19 JUDGE von KMN: Hours. Okay. So of tbe
20 number of bours in your 91-92 study, you got the cue
21 sheets for 77 percent of that time? Is that the idea?
22 THE WITNESS: That's correct. Yes.
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JUDGE von KANN: Okay. The other question was I was a little surprised there's not a huge difference between the percentages, but you got actually a little bit higher return on the older period, which surprised me. I would have thought it
would have been flipped. Why was a higher return for 91-92, do you think, than for 98-99?
THE WITNESS: You know, interesting
question, and I -- those number of kind of surprise me
10 too. It's the way it turned out. What we did do, which is part of our procedure, is to attempt to get
as many of those cue sheets as possible. In fact, one
of the procedures that we undertook as part of this study is to take another look at all the shows that remain unidentified in both sets of years and made
another attempt to get as many of those cue sheets as
possible. And we did succeed in getting quite a few
18 additional cue sheets, both BMI and with the help of
19 ASCAP, and these are the numbers we came up with.
20 JUDGE von KANN: I guess the fact that you 21 did a little bit better with the ones that were from
22 the 91-92 prompts me to ask why do you think you would
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necessarily not do very well with ones that were seven years before that or whatever it would be, eight years before that, in '83?
THE WITNESS: Well, first of all, we don'
have the TV Data information to use for those sets of years, which is a huge factor.
JUDGE von KANN: Okay.
THE WITNESS: So we'e having to scramble
just to get the program listings. And we have to
10 start there first, because if we don't have the
program listings, then we can't do anything about the
12 cue sheets. During this time period in the '90s, BMI's databases were improved tremendously in terms of
the number of cue sheets that we entered. And that
may not relate back to shows that were aired in 1983.
Let me give you an example of that. Let'
17 say there was a series that aired in 1983 but
18 continued to air in years after 1983. The information
19 we may have in terms of the cue sheets for those
20 episodes may not date back to the 1983 period. So I'm
21 just concerned about possibly having to use a cue
22 sheet for episodes that were aired later without
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having the cue sheets for the 1983 period. I'm not
sure how representative that would be. We have to
see, we don't know yet, but that's a concern of mine.
JUDGE von KANN: Okay. Now, the other
thing about this I wondered is 73, 77 percent, that' around about three-guarters, so you'e getting about three-fourths cue sheet -- you'e getting cue sheets
on about three-fourths of the programming. You may or
may not hear somebody raise issues about whether
10 what impact that has on the statistical validity of
the study and so on. But one thought occurred to me,
which is it's not necessarily clear to me that that percentage return is sort of even across the board.
Maybe you got 50 percent of the cue sheets back for
commercial television, 95 percent of them back from
program suppliers, 32 percent back from public.-- you
17 know, there could be different programming groups that
18 had sort of different response rates, which might
19 affect some of the information about that. Do you
20 have any recollection of whether the response rate on 21 cue sheets is fairly even across the different 22 programming types or was there some market difference
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between them?
THE WITNESS: That's a very good question, and I have looked at that because I had the same
concern as you about the 75 percent, approximately. Is it representative or not. And looking at the types
of shows that we have matched as well as the shows we have unmatched, it appears that there has been little change in that between 91-92 and 98-99. Specifically, it looks like the majority of the programs that remain
10 unmatched are local news for basically there are no
cue sheets, for many sporting events where cue sheets
12 are hard to come by, infomercials whereby TV Data
13 rarely has the actual identity of -- they simply have a generic term, "paid program." Those are very high in music content. But it seemed like generally there 16 was the same class, the same ratio of these types of
17 shows that were missing from both sets of years. So
18 that leads me to believe that what we do have
19 identified is representative, at least in a
20 comparative sense, between the two sets of years.
21 JUDGE von KMN: Okay. And just to fill 22 this out a little bit more, I'm trying to get a sense
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of who it is that sends you the cue sheets. Now, let's take -- I think this one maybe would be public broadcasting. I assume it's each individual public
broadcasting station or does it come all through PBS in some centralized fashion?
THE WITNESS: It would usually come either
through PBS or the producers of the shows themselves, not the local television stations JUDGE von ~: Not the local stations.
10 THE WITNESS: No.
JUDGE von KA5K: Okay.
THE WITNESS: It's rarely the local television stations that send us cue sheets.
JUDGE von KANN: Okay. Switch over to Nr.
Stewart's group, the Commercial Broadcasters. Who
sends you the cue sheets that would evidence what
17 they'e doing?
18 THE WITNESS: For the most part, it is the
19 producers of the shows or to the extent that those
20 syndicated programs were originally ABC, CBS and NBC,
21 we would have had them with their first run on the
22 networks through ABC, CBS and NBC before they went to
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syndication. So it's a combination of the three major networks as well as the producers of shows of other syndicated programming.
JUDGE von KANN: Well, we know that a certain chunk of the time of the commercial broadcasters is local news, public affairs, that sort of thing for different stations around the country. Are you saying that that's one of the areas where you
had some difficulty in getting cue sheets?
10 THE WITNESS: Absolutely. Those are areas
where BMI rarely gets cue sheets from the majority of
12 stations
13 JUDGE von KANN: And then how about with
respect to the claimant group we call here the Program
15 Suppliers, syndicated programs, movies and so on?
16 Again, it's the producers of those individual
17 syndicated shows that supply the cue sheets?
18 THE WITNESS: Yes. Or in the case of
19 films, it would be the film companies.
20 JUDGE von KANN: Okay.
21 THE WITNESS: And we usually do very well
22 on those.
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JUDGE von KANN: Okay.
THE WITNESS: As you can see in the study.
JUDGE von KANN: And the Canadian Claimants, do you get the same thing again, it's the producers rather than the individual stations?
THE WITNESS: I'm not sure what kind of
programs we would get from the Canadian suppliers. It
might be some of the same shows. They have to be
broadcast on U.S. -- United States stations for BMI to
10 be involved, because BMI has licenses with U.S. television stations only, not Canadian television
stations. So we don't actually collect the
information on Canadian stations. To the extent that Canadian programming is shown on U.S. television
stations, then, again, we would get those cue sheets
16 from the producers of that programming, for the most
17 part.
18 JUDGE von KANN: And how about the Sports
19 Claimants, baseball games, football games, basketball,
20 hockey? How do you get cue sheets on them?
21 THE WITNESS: Local television they'e
22 very difficult to come by. We do pretty well on the
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networks, again, ABC, CBS and NBC and Fox.
JUDGE von KANN: ESPN?
THE WITNESS: ESPN is spotty also. There
aren't nearly as many cue sheets available for sporting events as there are for other shows with the
exception of the three major networks, say NFL Football and so on.
JUDGE von KANN: Is this cue sheet system still not only with respect to the time frames you'e 10 studying but this is still the way you keep track of the music use? Because it seems to me it', a, a 12 little antiquated, b, it's asking the fox to report
13 how many chickens they'e eaten, sort of, to some
extent. It seems like a strange way to do it. You'
15 think there would be a better way for you to keep
16 track of who's using your product then sort of to hope
17 that they'l send you complete and exhaustive lists of
18 all the music they'e done.
19 THE WITNESS: Well, it would be great to 20 be more automated than this. It would help everybody
21 out, I think, especially people like BMI and ASCAP
22 whose work is so data-intensive. The more electronic
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it is the better it is for operations. Unfortunately, it hasn't come down to that. I guess each individual show someone's got to sit there and count up the minutes of every piece of music, and I guess it's just
a tedious task, and I'm not sure there's a way of
automating that. That's not up to me, though.
JUDGE GULIN: Let me follow up a little
bit. I guess those who are sending you the cue sheets they don't really much care what the results are, do
10 they? They'e got a blanket license, right?
THE WITNESS: That's right. There'
12 generally no gain or loss for them.
13 JUDGE GULIN: Except perhaps when it comes time to renegotiate their contract or license then
15 maybe
16 THE WITNESS: Perhaps.
JUDGE GULIN: -- they would prefer to be able to say they'e not using music as much as they
19 used to or something along those lines.
20 THE WITNESS: Well, I would just add that
21 those cue sheets are created not just for BMI and
22 ASCAP. They'e created as part of the normal process.
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We'e just one of the recipients of that.
JUDGE GULIN: Now, in. determining, for
example, how the music intensity used by sports, you can look at the networks, I guess, and determine how
much music is used in an average game, average
football game, because you get those cue sheets, correct?
THE WITNESS: Yes.
JUDGE GULIN: From the networks.
10 THE WITNESS: Right.
JUDGE GULIN: And I guess you could
12 extrapolate then what it would be in terms of local
13 station transmissions, correct?
14 THE WITNESS: I'm not sure that would be
15 statistically valid to do that. The music content
16 might be different on the networks, in network shows
17 of sports than on local television production of
18 sports, and I'm not sure we want to make that leap to
19 do that. I think we wanted to keep the information
20 that we included in the study -- the cue sheets that
21 exactly matched as much as we possibly could rather
22 than to create something that may or may not be
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appropriate.
JUDGE GULIN: Okay. Now, in terms of getting the data -- you mentioned that it would be very difficult to get the data for 1983 because you
wouldn't have access to TV Data data for 1983, and I
thin we appreciate that. But perhaps by way of guidance, even if you can't come up with an apples to apples type of comparison, perhaps -- and even if you have to use some different type of metric, I think
10 what the Panel would be interested in is not necessarily absolute numbers, whether there was an
12 increase or decrease by how much percent from '83 to
13 '92, but merely a determination as to whether there was a decline or an increase I think would be helpful.
15 THE WITNESS: I'm sorry, I didn'
16 JUDGE GULIN: Whether there was an
17 increase of decline in music usage from '83 to '92
18 even if you can't give us an absolute number. So you
19 may have to use a different metric perhaps, but I
20 think that's what we'd be interested in. I think
21 that's the only other question I had.
22 JUDGE YOUNG: The only question I had is
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I wanted to make sure I heard properly. Did you say
that you weren't looking to determine minutes per category, program type category?
THE WITNESS: That's right.
JUDGE YOUNG: But your observation, it' your sense it was relatively even?
THE WITNESS: No. My observation was that the missing programming sets of years were
approximately -- they had the same composition. So we
10 don't -- of course, we don't know the music content of
what we don't have cue sheets for, but of the 23
12 percent of the programs that we don't have in 91-92
13 and the 27 percent of the programs we do not have in 98-99, the makeup of the types of programs in each of
15 those sets of years look to be about the same.
JUDGE von KANN: You didn't get a lot of 17 info on news in the first period, and you didn't get
18 a lot of info on news in the second period.
THE WITNESS: Right. It was about the 20 same amount of news with both sets of periods, so it 21 seemed to balance out.
22 JUDGE YOUNG: And for the information you
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did get was there a way to determine a distribution across program categories?
THE WITNESS: That's not something we attempted.
JUDGE YOUNG: Did you have any observations?
THE WITNESS: I actually did not.
JUDGE von KANN: Okay. Seems like this is a good place to break, and I'l let you all talk about 10 the order of cross. Mr. Mause, if I could ask you, we have two orders here granting the Canadian motion to
12 correct parts of the testimony and also setting the
13 hearing on May 29 concerning the Devotional and NPR
14 settlements. If you'd just pass those out to everybody, we'd be grateful. Thank you. We'l take
16 15 minutes.
17 (Whereupon, the foregoing matter went off
18 the record at 3:05 p.m. and went back on
19 the record at 3:25 p.m.)
20 JUDGE VON KANN: Okay. Mr. Stewart, I
21 guess you'e on.
22 CROSS EXAMINATION
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BY MR. STEWART:
Q Mr. Krupit, good afternoon. My name is John Stewart, and I'm representing the Commercial Television Claimants in this proceeding. We'e the claimants for the station-produced programs such as
local news on commercial television stations in this
proceeding. Okay?
Okay.
JUDGE YOUNG: He wants those cue sheets.
10 (Laughter.)
MR. STEWART: We'e going to get to that.
12 BY MR. STEWART: First, I'd like to write sort of an outline bere on tbe board. And first, tbe music use 15 study that you have testified about had as its
16 objective to measure whether music use in general went
17 up or down between 1991-'92 and 1998-'99, is that
18 r3.gbt?
19 That's basically correct, yes.
20 Okay. I'm going to erase this big zero,
21 which I think was Mr. Garrett's proposed share for the
22 Program Suppliers.
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(Laughter.)
And I'm going to write down what I think
are the elements of -- let me ask you to confirm this. The study that you did first required a selection of stations to be studied, correct? Yes.
Q And then, secondly, it required a selection of days or dates to be studied, correct? Yes.
10 Q And then, third, you identified the programs that were to be studied on those stations on
12 those dates, correct?
13 That's right.
14 Q You then collected cue sheets for those
15 programs to identify music use on the programs, correct?
17 That's correct.
18 Q Okay. Now, you then had to calculate,
19 based on the cue sheets, the amount of music use,
20 correct?
21 That's not what I did.
22 Q Okay.
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What I did was simply gather the information that's contained in the cue sheets and attached them to the programs that were aired on the stations and the dates.
Q Okay. And so what happened next in the
study was some kind of computation to produce results,
and who did what is exactly what I'm going to ask you on each of these. And then, finally, some statistical tests, is that -- are you aware of that?
10 Yes.
Okay. And just reading down the list, the selection of the stations to be studied was done by
13 Dr. Hoyle, is that correct? For the 1991-'92, yes, and, for 1998-'99,
it was -- we talked together about that ~ Well, for 1998-'99, the only change in the
17 stations that were already selected was just to go 18 down the list, the top-down list, and pick the next 19 five.
20 Pick the next five, that's right.
21 Q Were you the person responsible for
22 selecting the dates?
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I think the decision to use the FCC
composite week was, again, given to me, and then it was just a calculation of the dates after that.
Q Given to you by Dr. Boyle? Yes.
Q The information about the programs, you simply collected all that you could get for those dates for those stations, correct?
The programs actually from the TV Data
10 Q Right.
information that's -- that BMI buys.
12 Q Oh. BMI already had acquired that, so you
13 simply collected that TV Data data for those dates and
14 those stations?
15 Yes.
16 Q And then you or your staff did the
17 analysis of the cue sheets that showed up on those
18 dates on those stations, correct?
There were various BMI personnel that
20 worked on that.
21 Q Okay. Was it all under your supervision? 22 No, it was not. It was not.
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What was your role? Well, a lot of that was done beforehand.
The TV Data information comes in on a regular basis and gets incorporated into BNI's databases as the normal course of quarterly business. And the matching that's done is also done on a regular basis. What was
done under my supervision is just to check the results and fine-tune and make sure that things were done properly.
10 Q Okay. The computation of the final averages and overall results was done by Dr. Boyle, is
12 that right?
13 That's right.
14 Q And the statistical tests were done by Dr. Boyle, is that right?
16 That's right.
17 Q Okay. Now, if the selection of the
18 stations was done in a way that made them not a representative sample of the relevant universe, the 20 study would not meet its objective of producing an
21 accurate measure of the music use between the two
22 periods, is that right?
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I suppose so.
And the same goes for the dates -- if the dates were selected on a basis that made them not representative of the relevant time periods, you would not be able to have produced accurate results, is that right? Yes.
Q Not accurate but valid results. I suppose so, yes.
10 Q Let's go back to the selection. of dates.
Are you aware of the fact that the FCC selected a
12 different composite week for each of the years in
13 which it still had that system in place?
14 No, I wasn't aware of that.
15 Well, what is your view about whether
16 there is variability among the programs broadcast on
17 television stations across different months of a
18 particular year?
19 Well, of course, there are different
20 seasons in television, and each season of the year
21 often has different programs, and there are some
22 programs that are not different. And, you know, to
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the extent that there are syndicated shows that are played all the time, I don't think that changes much at all over the course of a calendar year.
Q Well, if you accept as a premise the fact
that the FCC selected a different set of dates and different -- and encompassing different months each of the years, then using the same months and weeks to represent these four different years spanning an eight-year period would not really replicate the FCC's
10 process of random selection of dates, would it? Perhaps not. I'm not sure.
12 Q Are you aware of -- what's your view about
13 whether there is variability in the programs that stations broadcast across stations? That is, is there
15 much difference between the programs broadcast by one
16 station and another station in the broadcast universe? I'm not sure I understand your question.
18 Q We talked about whether different
19 whether on the same station there might be different
20 programs broadcast different times of the year. Okay.
21 That was the dates part.
22 Yes.
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Q If you look now at two different stations, is there likely to be a difference in the programs that they broadcast during the year? There might be, and then there might
you have to look at the two stations to really determine that, I think.
Q What factors would you consider in deciding whether it was likely there would be variation in the programs broadcast across stations?
10 You'd have to look at the programs themselves.
12 Q What about different types of stations?
13 Different types of stations such as? Well, network affiliates and independent
15 stations. Is there a difference between the kinds of
16 programs that those two types of stations typically
17 broadcast?
18 My belief is that it's generally the case
19 in some of the programming. Some of the programming
20 would be similar and some would not.
21 Q So, in your view, network affiliates and
22 independent stations are not different from each
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other, or not significantly different from each other in the programs that they broadcast? Well, significantly different indicates there's a statistical difference between, the two. I can't represent that without doing a study on that.
But just looking at the programs over the course of my
career, there are some programs that are similar, and
there are some that are not.
Q How about public broadcasting stations and
10 commercial broadcasting stations? Do you think it' likely that they differ in terms of the kinds of
12 programs that they broadcast?
13 Yes, I think so.
Q So if you were trying to do a study that represented -- that included public broadcasting stations, should you include some public broadcasting
17 stations?
18 I think it depends on the premise of your 19 study. If your study is to include the most important 20 stations in the years that you'e looking at, you have 21 to include whatever stations happen to fall into that 22 group in that year.
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Q So let's go back to that. That' essentially the objective of this study. And would
you -- strike that. Let me start over. Based on what you just said, it sounds like the objective of this study was a different one from the one that I stated. That is -- or what I stated originally was to provide a valid representative look at the entire universe. Is that not the objective of this study?
10 Of the entire universe of?
Q Of distant signal stations. Well, of course, we'e not studying the entire universe of distant signal stations. It's a sample of stations.
And what was the sample intended to represent'?
17 The sample was intended to represent the
18 most important stations -- a representation of
19 stations that includes the most important stations in
20 each set of years.
21 Q Okay. But without regard to whether it
22 also represented the entire universe of distant
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signals for those years? I'm not sure. There might have been some representation of that.
Q Now, you said during the course of describing what you did that you excluded or eliminated network programs from the cue sheet analyses that you did, is that right? That's right.
Q What network programs were those?
10 There were two stations in '91 and '92 that were network affiliates.
12 Which ones were they?
13 Let me look at the list of stations. I
think it was WITN, WHAT Let me verify that, one
minute. That's right. WBAL and WITN were network affiliates, and--
17 Q Any other stations?
18 Excuse me?
19 Q Any other stations that
20 Actually, in '98-'99, one of the stations
21 that we used in '91-'92, KSHB in Kansas City, switched
22 to a network affiliate in '98-'99. So in all of those
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cases we needed to exclude the network programming on those stations.
Q Why did you need to exclude the network programming?
Well, I was informed that the network programming is not part of this procedure.
Q So those programs are not compensable, so you didn't study the music in those programs?
10 Q It appears that those three stations in
'98-'99 were all affiliates of the same network. Do
12 you know what network that is?
13 No, I don'.
Q Do you know whether that's true?
15 I don't know whether that's true or not.
Q You didn't focus on whether they were an
17 affiliate of any particular network?
18
19 Q Okay. Now, with respect to WON, did you
20 exclude any programs from your analyses in 1998-'99?
21 No, we did not.
Q Okay. You assumed that all of the
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programs on WGN were compensable in this proceeding? That's correct.
Q I'd like to look at your Exhibit 30 with you, and in particular direct your attention to
page 34 of 48. Well, first we'e going to look at
page 48 of 73. No, I'e got the wrong exhibit. I'm sorry. Hold on a second, if you'l bear with me. I
want to look at pages 32 and 33 of Exhibit Number 30, okay?
10 Can you say that one more time, please?
(Laughter. )
12 Q That's my final offer.
13 (Laughter.)
14 Pages 32 and 33 of Exhibit 30. Are you
15 there?
16 Yes, okay. I'e got it.
Q Now here, starting at the bottom of
18 page 32 and running over to page 33, are repeated
19 listings of the show name News, do you see that?
20 Yes.
21 Q What were those programs? It looks like they were primarily local
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news shows.
Q And they appear to have descriptions that relate to the time they were broadcast and the duration of the broadcast, is that right? I would assume that's most likely correct.
Q And if you look over on page 33, there are actually a number of specific descriptions that
include WBAL, the call signs of a Baltimore network affiliate, is that right?
10 That's correct.
Q Now, let's turn to -- this is the exhibit
12 that lists all of the programs for which you had TV
13 Data information for 1991-'92, correct? Yes.
15 Q If we turn. to Exhibit 31, which is the
16 1998-'99 program list, and go to page 48, do you see
17 there's a single listing of show name news there?
18 Yes.
19 Q Why is there only one listing?
20 Okay. If you go back to pages 32 and 33
21 of Exhibit 30, you'd see that each time that News
22 appears under the show name column there is a
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different description. There is a different set of alpha characters in. the description field.
The way these two lists were sorted each time the combination of these two fields changed there
was a new listing. So if you look at the first
instance of News on page 32 of 48 Yes.
Exhibit 30, you see there's show name
News, description news. You know, there may very well
10 have been many, many performances or occurrences of
that show with those two exact configuration of alpha
12 characters. Similarly, in the 1998-'99, on page 48 of
13 Exhibit 31, you had that same listing -- news and
news. And, similarly, there's probably many, many
15 examples or episodes of that precise configuration of
16 show name and description.
17 Q Okay. And for the '98-'99 listing in
18 Exhibit 31 at page 48, do you think that single
19 listing for news encompasses all of the station-
20 produced newscasts, local newscasts on all of the
21 stations in
22 Yes.
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Q Okay. And the next listing, News at 11,
is actually just a title of a TV movie and not an actual newscast, is that right? I couldn't tell -- I can't tell from this
exactly. According to TV Data, that would seem to be
the case. And I don't remember -- Jeffrey Lyons was here. I'm sure he would have seen this movie and could tell us exactly the plot and the music and all that. I don't remember. This might be a film.
10 According to TV Data, this is indicating a film News
at 11
12 Q Okay. Now, if you would turn to
Exhibit 33, here now we have the titles, the programs
listed in Exhibits 30 and 31 shown for every program
15 for which you had a match for the cue sheet, correct?
16 That's right.
17 Okay. And if you turn to page 32 of
18 Exhibit 33, you see there's no listing for the show
19 name News, is that right?
20 That is correct.
21 Q And similarly, that's the '91-'92 list,
22 and, similarly, if you go to Exhibit 34 at page 52
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Yes.
Q you see no listing for the News program Right.
Q for '98-'99, correct? That is correct.
Q Okay. So essentially -- and this confirms your general statement that you don't get cue sheets for news -- for local newscasts, right?
10 Well, at least on the shows and the stations and the dates that were included in this
12 study we do not.
13 Q Okay. Now
14 JUDGE VON KMK: Can we pause a second
15 here? I'm on page 52 of Exhibit 34. And there again
16 is News at 11, TV movie. It seems to me a bit
17 unlikely that a TV movie called News at 11 showed on
18 one of your survey dates in '91-'92 and then also
19 showed on one of your survey dates in '99-'98.
20 THE WITNESS: No, no. The
21 JUDGE VON ~: Oh, I see. That's right, 22 because it was the original programming group, and
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then the one for which you had data. You'e right.
Okay. That makes sense.
THE WITNESS: Okay. It looks like it was
a TV movie after all -- a film after all, 17 minutes,
17 plus minutes on it.
BY MR. STEWART:
Q And that would be extraordinarily unlikely for an actual newscast, would it not? To have I think it would be unlikely, yes.
10 Okay. That's fine. Now, going back to
the questions you were asked about the 77 percent
versus 73 percent match rate, it is the case, is it not, that if the stations in the study in general had more local news programs in 1998-'99 than they did in '91-'92, that that would -- that could cause a reduction in the amount of matched. program hours,
17 correct?
18 If you only looked at the news programs and no other type of program, that might -- you might
20 make that conclusion.
21 Q And if that were the case -- let's just
22 take that as a premise. If the stations in the study
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had more local newscasts in '98-'99 than they did in '91-'92, and those newscasts had relatively little music in them, then the fact that they'e not picked
up by your study because they are not matched with cue sheets would produce a misleading result, would it not, in terms of whether there was more or less music use between those two groups? That would be -- that could be the case. But, again, I say you have to look at the other
10 program types, too, because there could very well be other -- more music-intensive program types where
12 there were more unidentified in the later set of years
13 than the earlier set of years. And they would counteract each other.
15 Are you familiar with the term "direct
16 licensing?
17 Yes, I am.
18 Q And do you know what the per program
19 license is?
20 Generally, yes.
21 Q Between '92 on the one hand and '98-'99 on
22 the other hand, per program licenses were adopted by
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many more -- by many stations, is that right? I believe they were. I'm not entirely sure on that.
Q And under a per program license, a station could reduce the amount of royalties it had to pay to
ASCAP or BMI or SHSAC by reducing the amount of music that it used in the programs that it could actually control, including local newscasts, correct? I'm sorry. Could you repeat that, please?
10 Q A per program license allows a station to reduce the royalties it pays for music by reducing the
12 amount of music it uses and the programs it can
13 actually control, right? Generally, yes.
15 Q And if a station is broadcasting a
16 syndicated program, it doesn't have an opportunity to
17 change the amount of music used in the syndicated
18 program, does it? 19 That's right, it does not.
20 Now, with respect to local newscasts which
21 the station produces, it may be able to reduce the
22 amount of music used in the newscasts, correct?
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If it wanted to, it could.
Q And if it was possible that it would reduce -- allow it to reduce the amount of royalties
it paid to ASCAP, BMI, or SESAC, it might have an incentive to do exactly that, correct? It might, yes.
Q And direct licensing would be a way for it to acquire music for use, for example, as a theme in
a local newscast without paying royalties to ASCAP,
10 BMI, or SESAC, correct? That would be a method, yes.
12 Q Okay. Now, I'd like to show you -- oh,
13 first of all, I'd like to have marked as Exhibit NAB
23-X a BMI document that I printed off from the
15 website. 23-X.
16 (Whereupon, the above-referred
17 to document was marked as NAB
18 98-99 Exhibit No. 23-X for
19 identification.)
20 JUDGE VON KANN: Mr. Stewart, according to
21 my unofficial survey, the NAB is leading the pack in
22 cutting down trees in the rainforest here.
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MR. STEWART: Is that by page?
JUDGE VON KANN: Yes. You'e got more pages than anybody else.
MR. STEWART: I'm just trying to provide a complete record.
BY MR. STEWART:
Q We had a witness from ASCAP the other day
who confirmed that ASCAP treats theme music differently from feature music and background music,
10 in terms of the credits that it provides to composers
or claimants. And this document is called BMI Royalty
12 Information printed off the BMI website. Are you
13 familiar with it?
14 I'm somewhat familiar with it.
15 Q If you turn to page 10 of this document--
16 the numbers are down. at the bottom in that little plus
17 srgn.
18 Yes.
19 You'l see in the chart there, Local 20 Television Rates, that, again, the theme music is paid 21 for at a lower rate than feature music, correct? 22 Yes, it is
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Q And do you know what the meaning is of the "per show" in parentheses below the word "theme"?
MR. MAUSE: Your Honor, I'm going to object to this line of questioning, because it goes beyond the scope of the witness'irect testimony. He's testifying as to what the music claimants'hare should be of this fund, and this questioning gets into
how the music claimants distribute money among their
claimants .
10 We have not inquired as to, for example,
how NAB is going to distribute its share, whether it' going to use the Rosston study among its members to
distribute what it gets. And we feel this is both irrelevant and. beyond the scope of the direct.
MR. STEWART: I don't think this has and I don't mean to suggest that this has anything to
17 do with how the music claimants will distribute
18 royalties they receive in this proceeding.
19 We'e talked -- we have already had
20 testimony about the fact that in newscasts which are
21 in my category there is a use of theme music and 22 substantially less feature music in newscasts. This
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is another indication that the music licensing societies treat theme music as lesser in some way that's relevant to them than feature music.
JUDGE VON KANN: Well, what do you say about beyond the scope of bis testimony, which is a little different issue?
MR. STEWART: In his testimony be presents the question of overall music use between '91-'92 and '98-'99, and there's a big missing chunk of that,
10 which is tbe station-produced newscasts. And station- produced newscasts use programming that is deemed less
12 deemed proportionately less valuable in the BMI
13 distribution method.
14 And the redirect question asked of the
15 ASCAP witness last week was tbe ASCAP methodology that
16 gives a balf-credit once per show to theme music is
17 only ASCAP's, and here we -- and here I'm trying to
18 complete the record and put in the BMI method.
19 JUDGE VON KANN: Okay.
20 (Bench conference.)
21 First of all, I don't think we -- we are
22 not particularly -- we are not at all interested in
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Phase 2 distributions. But I understand Mr. Stewart
has a different theory for the relevance of this. I think it's probably a bit beyond the direct of this
testimony, narrowly construed, of this witness'estimony.
However, we'e conscious of the fact that
both Mr. Saltzman and Dr. Boyle are ASCAP witnesses, and you want to round it out a bit with some question
of BMI. And to avoid hopefully having to bring
10 somebody in on rebuttal, we'l allow a little bit of questioning in this area. I don't assume it's going
12 to take too long, Mr. Stewart.
13 MR. STEWART: No.
14 BY MR. STEWART:
15 Q My question to you, Mr. Krupit, was
16 whether you know what the words in parentheses below
17 the word "theme," words "per show" refers to.
18 I can't say as I do.
19 MR. STEWART: I would move for the
20 admission of this for impeachment purposes.
21 JUDGE VON KMK: Well, we have been pretty
22 broad about that. It is off of the BMI website, I
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guess. Mr. Mause, any objection?
MR. MAUSE: No, we will not object.
JUDGE VON KANN: Okay. We'l receive it for impeachment. (Whereupon, the above-referred to document, previously marked
as NAB 98-99 Exhibit No. 23-X for identification, was received in evidence.)
10 BY MR. STEWART:
Q Mr. Krupit, may I ask you to take a look
12 at the black binder there to your left. I'd like to 13 ask you to look at the 1983 decision. It'l be Tab
14 Number 12 .
15 Okay.
16 Q This is Volume 51 of the Federal Register,
17 is that right? Can you see that up on the top of the
18 page?
19 I see Federal Register, Volume 51,
20 Number 72 .
21 Q Okay. Would you turn to the page numbered
22 12801 up in the upper right-hand corner?
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Okay. I am there.
Q Okay. In the left-hand column, the second full paragraph on the page starts -- begins, "The
success of MTV," do you see that? Yes, I do.
Q Okay. And would you just take a moment and read that to yourself, please?
Okay.
Q Okay. Now, turning -- in that paragraph,
10 the Tribunal talks about how three of the superstations began airing music video programs and
12 were airing them in 1983. Are you familiar with what
13 a music video program is?
Yes. It's a show that shows videos, music
15 videos.
16 Q Okay. And are you familiar with these
17 particular programs that are listed here, FM-TV, Solid
18 Gold, Midnight Special, or Night Tracks?
19 I remember Solid Gold and Midnight
20 Special. I used to watch those shows.
21 Q Okay. Would you look at your Exhibit 33,
22 please. Why don't we look, actually, in Exhibit 30.
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That's the list of all programs that were in your database for '91-'92. Right.
Q And you can check this if you'd like, in particular for Solid Gold and Midnight Special. But they don't appear in that list when I checked it.
Would you like to check for yourself, or will you take Sure.
10 my word for it? Solid Gold and Midnight Special are the two.
12 JUDGE YOUNG: Which exhibit are you
13 looking at?
MR. STEWART: We'e looking at Exhibit 30.
15 THE WITNESS: Midnight Special is not
16 there. Solid Gold is not there.
17 BY MR. STEWART:
18 Q And how about Night Tracks?
19 Night Tracks is there.
20 Okay. And if you now turn to your
21 Exhibit 33 -- this is tbe actual matched minutes
22 and look for Night Tracks on page 33 of 46.
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Yes.
Q Do you see that Night Tracks Chart Busters
bad 4 8-1/2 minutes of music, Night Tracks had 17. 56 minutes of music? Yes.
Q Okay. And there's another Chart Busters listing there with only a minute, 1.7 minutes, is that right? Yes, I see that.
10 Q Okay. Now, did that music video program
or any -- that music video program ran on WTBS,
12 correct?
13 Yes. That's what it says here. And under the weighting system that was
15 used to compute the final results in terms of music
16 use across these years, that would have gotten the
17 highest weight by far, correct?
18 In those sets of years, that's correct.
19 Okay. Now, those programs -- that program
20 did not show up in 1998-'99, correct?
21 I would have to check that to be sure.
22 Yes. Neither of those three shows appeared in '98-
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'99.
And, in fact, it's the case, isn't it, that the trend of new music video programs on commercial television stations -- those noted in 1983 in that decision -- didn't exist in 1998-'99, did it? Those particular shows did not exist, right.
Q And, in fact, the music video shows -- the
music videos were provided by MTV and VH-1 and other
10 cable networks in 1998-'99, correct? For music video shows specifically, yes.
12 For the most part, yes.
13 Q Okay. And are there any music video shows in your study for 1998-'99?
15 I don't know if there are music video
16 shows. I know there's a number of music shows that do
17 exist in '98-'99, and I know there's a number of music
18 shows that we didn't have cue sheets for in '98-'99.
19 But the music video genre, are you aware
20 of any music video program in 1998-'99? If you'e asking about specific music
22 video shows, no, I don't recall any.
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Q I'd like to turn next to your radio cable radio testimony.
Okay.
Q And look with me at your Exhibit 35, just flip over to the first statement of account that you'e listed there or that you'e provided there. Yes.
Where is the radio listed on this statement of account?
10 It's listed on page 4. There are a number of radio stations listed.
12 Okay. Now, which of these -- is any of
13 these radio stations a public radio station?
I wouldn't know that off hand.
15 Q Is any of these radio stations a non-music
16 station -- that is, a talk station or a sports
17 station?
18 Again, I wouldn't know that off hand.
19 Which of these stations has a distant
20 signal in this cable system, do you know that?
21 Which stations have a distant signal?
22 Q Yes.
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Well, isn't it true that they'e all distant signals, since they appear on Adelphia?
Q Why do you say that? I see Adelphia is in Coudersport, Pennsylvania. These stations are in Massachusetts and Rhode Island.
Q Would you look at -- you'e referring to the listing of the owner on the first page of the statement of account?
10 Yes.
In Coudersport, Pennsylvania. Would you
12 look at the area served under block D on the first
13 page?
Oh, I see. Falmouth (phonetic) -- or Falmouth, Massachusetts.
Q Falmouth, yes.
17 Sorry.
18 Q Do you know where Falmouth is?
No.
20 Q Do you know whether, in fact, any of these
21 radio stations that's listed on page 4 here is not 22 available over the air in Falmouth, Massachusetts?
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I wouldn't know that off band.
Q Do you know that -- are you aware of tbe fact that tbe compulsory license in tbe Copyright Act for the secondary transmission of broadcast stations for which royalties are paid applies to retransmissions beyond tbe "local service area of the primary transmitter"? I'm not aware of that.
Do you know how the -- let me just read
10 you tbe sentence from the definition section F of Section 111. There's a definition of "local service
12 area of a primary transmitter" that goes on in some
13 detail to describe tbe local and distant zones for television stations.
And then tbe last sentence says, "The
16 local service area of a primary transmitter, in tbe
17 case of a radio broadcast station, comprises the
18 primary service area of such station pursuant to the
19 rules and regulations of tbe Federal Communications
20 Commission." Did you make any analysis of whether any
21 station listed in these statements of account is
22 retransmitted outside its local service area under
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that definition?
No, I was simply asked to produce evidence that showed that there was a number of radio -- music radio signals played on cable systems, and that's what
we have here.
Q Okay. But you haven't indicated which-- you haven't analyzed which of these stations, if any, is a music station, right?
No, not in these.
10 Q And you haven't identified any of these stations as actual distant signals to tbe cable
12 system, correct?
13 That's right.
Q Okay. Looking at -- now, you mentioned
15 WFMT, but I couldn't find it carried on any system 16 except -- let's see if I can find it again. There'
17 one that's in tbe Chicago area. Yes, it's tbe third
18 statement of account. It's for a couple of
19 communities in Wisconsin. Century Venture Corporation
20 of Milwaukee. Do you see that? Century Venture Corporation? Yes.
22 Q And do you see on the radio listing page
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there WFMT appears, along with a whole lot of other Chicago and Milwaukee stations, right? Yes.
And do you know whether WFMT is received off the air in those communities in Wisconsin? I don't know. It's Chicago stations. I'm
not sure if that carries all tbe way over to Milwaukee, Wisconsin or not.
Q You don't know how far it is from Chicago
10 to Milwaukee?
12 It's a stone's throw.
13 I 'm no't
14 Q I used to throw quite a few back and forth.
16 Okay.
17 Q But you don't know whether, in fact,
18 that's a distant signal for this -- on this cable
19 system?
20 I don't know if that qualifies as a
21 distant signal or not.
22 Q Do you know whether WFMT is carried as a
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distant signal or as a direct licensed cable network, cable service? Again, I don't know the answer to that question.
Q And then, turning to your Exhibit 36 -- by
the way, I want to tell a little Chicago story also.
A lot of times at the Cubs games you'l see a lot of people with transistor radios up to their ears.
They'e listening to WFMT, the fine arts station.
10 It's a classical music station. Are you aware of that?
12 Yes.
13 Is classical music, in general, in the
public domain, or is it licensed by ASCAP, BMI, and
15 SESAC?
16 There's quite a bit of classical music
17 that's licensed by ASCAP and BMI and SESAC.
18 Q And that's because it's played -- that the
19 particular version played in under an arrangement
20 that's been created in a recent epoch?
21 It's a combination of arrangements of
22 older works which still are copyrighted by BMI, ASCAP,
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and SHSAC, and of 20th century written works which are still very popular and are played on fine arts
stations such as WFMT.
Q Do you know how much of -- first of all,
do you know how much music there is on WFMT as opposed to talk programs? I would venture to say there's quite a bit
more on WFMT. Quite a bit more?
10 More music. Than on all talk stations.
12 Than on talk stations in general.
13 Okay. Well, do you know about WFMT's
we had Studs Terkel here as a witness in maybe 1983
talking about his talk program -- talk show on WFMT.
And although I believe he's still alive he may not
17 have that program anymore. Do you know whether there
18 are talk programs on WFMT?
19 No. I haven't listened to it lately.
20 Q Do you know -- of the music that's played,
21 do you know how much is public domain classical music
22 and how much is not?
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I have not done an analysis of WFMT programming. Looking at your Exhibit 36, these are in effect -- oh, explain what these are, please. Okay. These are logs of radio programming that are played on cable stations that are produced for BMI's licensing department for their use. And the first one here it says it's a community bulletin board. Is that one of those things
10 that just shows on the screen different announcements that people submit to the cable system?
12 Yes. It's usually that blue screen with
13 the scrolling writing of community events and things
14 for sale -- of that nature.
15 Q Some of the most exciting programming on
16 cable television.
17 (Laughter . )
18 If your event is listed there, it would be
19 exciting.
20 With one exception as I flip through here,
21 there is no indication of whether it's actually a
22 radio station that's providing the music. Is that
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how do you know that these are radio stations listed here?
You couldn't tell from this -- from this log whether it's a radio station.
Q Okay. I think this is just meant to show that there is music behind the visual of the bulletin board.
Q Okay. And here again, you don't know, do
10 you, whether any of these channels use music from a distant as opposed to a local radio station, is that
12 right?
13 That is correct.
14 MR. STEWART: I have no further questions.
15 Thank you.
JUDGE YOUNG: Just going back to the
17 statement of accounts in Exhibit 35, and looking at
18 the two examples we looked at on page 4 of the system
19 in Palmouth, Massachusetts, as well as the Milwaukee
20 system, on page 4 where there is a list of the radio
21 stations there's different typeface in both lists. Do
22 you have any sense of whether that's significant?
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It's the same pattern in the second one as well.
THE WITNESS: I see that. I don't know if there's any significance to that, other than to fit all the letters in.
MR. STEWART: That's my theory. I noticed that, but it looks like it just wouldn't fit if you typed it the same size. Those are the longer words.
JUDGE VON KANN: Okay. The other question
is there was a question earlier -- and I don't know if
10 you answered this -- about whether there were any public television stations included in your sample for
12 '91-'92 or '98-'99.
13 THE WITNESS: Television stations.
JUDGE VON KANN: Broadcasters.
15 THE WITNESS: Yes, there were two public
16 television stations
17 JUDGE YOUNG: WLIW and--
18 THE WITNESS: And WNET in the '98-'99 study.
20 JUDGE YOUNG: Okay. Thank you.
21 THE WITNESS: Okay.
22 JUDGE YOUNG: Okay. I'm curious about
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that. Those are considered among the most significant stations in terms of the ranking that you were doing?
THE WITNESS: In '98-'99, they were. They
moved up to the top 10.
JUDGE YOUNG: From Long Island and from
Newark?
THE WITNESS: Those are probably the two
biggest PBS stations.
JUDGE YOUNG: Really?
10 THE WITNESS: Yes.
JUDGE VON KANN: Okay. Mr. Garrett?
12 BY MR. GARRETT:
13 Q Mr. Krupit, I'm Bob Garrett. I represent the Joint Sports Claimants. Good afternoon, sir. Good afternoon, sir.
16 Q Let me just represent to you that during
17 discovery your counsel provided us with a database
18 that shows -- that underlies the cue sheets that you
19 used in preparing your study. Are you aware of that?
20 Yes, I am.
21 Q Okay. And let me further represent that
22 this database has a number of columns of information,
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including the show name, description, and the call letters. Presumably that's the broadcast station on which that particular show was broadcast, correct? Yes.
The air date referred to the date on which that particular program aired? Yes.
Q Air time
MR. MAUSE: Your Honor, I believe counsel
10 may be about to introduce restricted material into the
record. And if that is -- that appears to be
12 happening, we probably should close the hearing for
13 that portion and seal the record.
14 MR. GARRETT: First of all, I just want to
15 get out what information we had. 16 JUDGE VON ~: Okay.
17 MR. GARRETT: Okay? And we'e about
18 three-quarters of the way there.
19 JUDGE VON KANN: Just the categories?
20 MR. GARRETT: Just the categories, right.
21 JUDGE VON KREIS: Okay.
22 MR. GARRETT: For right now. Secondly, I
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have no intention of introducing the entire database, if that's what the concern is here.
JUDGE VON KANN: Okay.
MR. GARRETT: Okay? I'm not going to do
JUDGE VON KANN: Let's take it step by step. If there's an issue, we'l deal with it.
MR. MAUSE: At this point it's okay.
JUDGE VON ~: Okay.
BY MR. GARRETT:
All right. And we'e agreed that the
columns of information includes show name, description, call sign, air date, correct? Yes. Air time, which as I understand it is the time that the particular program's broadcast began?
17 According to TV Data.
18 Q Okay. There's a column called SHW HRS,
19 which I assume is show hours?
20 Yes.
21 Q And that would show the amount of time
22 that that particular program aired.
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Well, the broadcast time slotted for that program.
Q So, in other words, it would include the commercials and promotional announcements as well. That's right.
Q Okay. And then, there is a column labeled
TOT MUSIC MINS, which I interpret to mean total music minutes? That is correct.
10 Q And that would show the total number of minutes of music in that program exclusive -- or
12 excluding any music that might be in the commercials
13 or promotional announcements, correct?
14 That is correct.
Q And then the last column says "matched,"
16 and there would either be a no or a yes there,
17 correct?
18 Yes.
19 Q And if there was a yes, that means that 20 you had a cue sheet that matched that particular
21 program.
22 That is correct again.
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Q And we'd find that cue sheet in one of
those 15 boxes that Mr. Mause Yes.
Q Okay. And if I go through that database, I'm able to identify all of the programs that you had that were JSC programs, correct? Could you repeat that again?
Q I could go through that database that we just talked about and identify all of the sports
10 programs that were within your study, correct?
You could do that if you knew all of the program names.
Q Okay. In other words, you go down the list of the program names looking for ones that say
Major League Baseball or Atlanta Braves or NIL or NFL, that kind of thing, right?
17 You could do that ~
18 Q Okay. Let me represent to you that we
19 have done that, and I want to -- the exhibit I do want
20 to introduce -- and you can tell me whether you think 21 it's confidential or not -- is two pages identifying
22 all of the sports telecasts that we could find in
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the
MR. MAUSE: We'l look at it and see okay. This doesn't have to be restricted, Your Honor.
BY MR. GARRETT:
Q All right. Let me have marked as JSC Exhibit Number 32-X the document that I just referenced.
(Whereupon, the above-referred
to document was marked as JSC
10 Exhibit No. 32-X for
identification. )
12 Mr. Krupit, do you have JSC Exhibit 32-X
13 in front of you? Yes, I do.
15 Q I will represent to you that we endeavored
16 to locate every JSC program that was identified in
17 your study for the years 1998 to 1999, and we were
18 able to find 35 such programs. Does that number sound about right to you?
20 I wouldn't know without actually looking
21 myself.
22 Q Okay. And it appears to us from the data
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that you provided that of those 35 programs you were able to find cue sheets for only eight of them. Does that number sound about right to you? That does sound about right.
Q Okay. Would it be consistent with your experience that you would only have cue sheets for
about 20 to 25 percent of sports programs? I really don't have a feel for the
percentage. I know it's different for local
10 television programs than from network television.
Q And that overall, including both local and
12 network television, you don't have -- well,
13 approximately what would it be for local television? I really don't know the answer to that.
15 know on network television it's very high.
16 All right. But we don't have any network
17 programs listed in your study here, do we?
18 No, we do not.
19 Q Okay.
20 My answer to you -- is this percentage
21 typical of local television or of distant signal? I
22 don't -- I wouldn't make that leap from this. I'd say
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on this particular study, on these particular dates, this appears to be what the ratio is.
Q All right. We also did a similar search
of the '92 sports programs, and we are not able to find any matched cue sheets. Does that sound about right to you?
Again, I have not looked. That may be the case.
Q Okay. One of the ways one could do this,
10 without getting into the database, is you could
compare your Exhibit 31 and Exhibit 34, correct?
12 Yes, you could do that.
Q 31 identifies all of the programs that
14 were in your sample, correct?
15 Yes.
16 Q And then, 34 identifies which of those
17 programs you had matched cue sheets, correct?
18 For the '98-'99 years, yes.
19 Q Right. And you did the same thing for
20 '91-'92 by comparing Exhibits 30 and 33, correct?
21 That is right.
22 Okay. Now, if I look at JSC Exhibit 32-X,
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the very first entry there, we see that there was an Atlanta Braves telecast that you included in your study, correct? Yes.
Q And that was the April 18, 1999, game against the Rockies, correct? That's what it says, yes.
Q And it was broadcast over WTBS, correct? Yes.
10 Q And the air date, once again, repeats what's in the description of 4/18/99, indicating that 12 it was broadcast on April 18, 1999, correct?
13 Correct.
14 Q And the air time was 1500, which would be
15 3:00 in the afternoon, correct?
16 Correct.
17 Q And that the total length of time of
18 telecast, including commercials, was three hours,
19 correct?
20 Excluding commercials
21 Q Excluding or including commercials?
22 Excluding -- oh, I'm sorry, three hours.
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Yes, that would be including commercials and promos.
Q All right. And during those three hours there were 9.02 minutes of music, correct? There were 9.02 minutes of music listed in. the cue sheet.
Q Okay. And that would have been -- the l 9.02 music minutes number, though, is the number that
we compare to the bottom line in your study here which showed an average number of minutes of music per hour,
10 correct? Well, let me strike that. The 9.02 is over the entire broadcast of
12 that Braves game, correct?
13 That's what that means, yes.
Q So you would divide that 9.02 minutes by
15 three hours to show that average in the Atlanta Braves
16 telecast you had three minutes of music per hour, excluding what might be in commercials and in promos.
18 Let me just add this. The three minutes 19 per hour was reported to us on the cue sheet for that
20 particular show.
21 Q Okay.
22 There may be additional music that is part
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of the broadcast, but it's not included in the cue sheet.
Q All right. But in your study here, you simply looked at tbe amount of music that was reported to you as shown in the cue sheets, correct? That is right.
Q And so when you come up with an average for all of the programs here, you'e showing it's an average number of minutes of music as reported to you
10 in those cue sheets for the programs. Tbe end of the -- yes, the conclusion of
12 the study will -- describes that.
13 Q Okay. And what was the average number of
minutes that you came up with for 1998-'99 per hour?
15 I have to reference Dr. Boyle's testimony
16 for that. It is not in my testimony. That'
17 something we should do? So I don't have it bere.
18 Q Okay.
19 MR. MAUSE: Your Honor, I need to review
20 what's indicated in Dr. Boyle's testimony.
21 BY MR. GARRETT:
22 Q Does about 20 minutes sound correct to
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you? 20 minutes per hour? I think that -- okay, that rings a bill. I think it was greater than 20 minutes.
Q Okay. Incidentally, did I understand you correctly before when you said that if you didn't have the cue sheets for a particular program -- copyright owners of the -- any music on that program would not be compensated, correct? In general, yes.
10 Q Okay.
There are ways that -- there are
12 adjustments made later on.
13 All right. Well, for example, if we go
down here to the seventh line here, we see that your
15 study originally picked up a game on WPIX, do you see
16 that?
17 Yes.
18 In 1998, correct?
19 That's right.
20 Q And that you were not able to find a cue
21 sheet for that, correct?
22 That is right .
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Q So would any copyright owners of music in
that July 5, 1998, WPIX telecast of a Major League
Baseball game receive compensation from BMI? Certainly not from the cue sheet. Okay. Would they receive compensation from -- as a result of your looking at something else?
There may be cases where there's some other agreements that I'm not aware of, but in general
the policy is we need a cue sheet to know what was
10 played. And that's how royalties are calculated.
All right. So to the extent that this
12 Panel awards royalties that might be attributable to
13 music on that July 5, 1998, telecast of a Major League
Baseball game on WPIX, those royalties would not go to the copyright owners of any music'?
MR. MAUSE: I'm going to object, because 17 this really -- question raises a -- first of all, it
18 goes beyond the scope of his direct and his expertise, 19 and it raises a complicated question about how various 20 funds flow through. I suspect the answer to this 21 would be a fairly complicated mathematical algorithm.
MR. GARRETT: I'l withdraw the question.
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But I will ask to move for substantive purposes -- or
I will move, for substantive purposes, JSC Exhibit 32-X.
MR. MAUSE: He's not seeking to have Mr. Krupit sponsor this?
MR. GARRETT: Yes, he would be -- this document was taken right out of his database. I mean, it's certainly subject to check.
MR. MAUSE: Subject to check.
10 JUDGE VON KANN: Okay. Well, we'l receive it generally, subject to check.
12 (Whereupon, the above-referred
13 to document, previously marked
as JSC Exhibit No. 32-X for
15 identification, was received in
16 evidence.)
17 BY MR. GARRETT:
18 Let me just ask, the first entry, Atlanta
19 Braves on TBS, April 18, 1999, this was as a distant
20 signal, not as a cable network, correct? 21 This was a distant signal, yes.
22 Q Okay. So we'e clear, you included WTBS
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in your 1998-1999 sample, correct? Yes.
And is there any difference between the
programming, exclusive of commercials, WTBS as the station in Atlanta versus the cable network sent out over a satellite, is there any difference in the programming? I didn't look at that specifically to see
if there was a difference. TV Data does give us
10 separate feed for superstation versus the local, and
we use the superstation feed in every case. So like,
12 for example, this particular show I don't know whether
13 this was also shown on the local station or not. But
14 I know this was shown in the superstation feed,
15 because that's how we pull the data.
16 Q Okay.
17 JUDGE YOUNG: And with respect to TBS,
18 when we get to Dr. Boyle's testimony where he is going 19 to talk about weighting it
20 THE WITNESS: Yes.
21 JUDGE YOUNG: -- with respect to TBS in
22 1999 would be weighted probably very low?
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THE WITNESS: Yes, that's correct. Very
low
JUDGE YOUNG: Okay.
THE WITNESS: -- as opposed to '91-'92.
MR. GARRETT: Can we go off the record for a second here?
(Whereupon, the proceedings in the foregoing matter went off the record at 4:30 p.m. and went back on the record at
10 4:32 p.m.)
MR. GARRETT: At this time I will mark JSC exhibit number 33-X a number of cue sheets or a set of
cue sheets that was produced to us in discovery by counsel for the Music Claimants.
(Whereupon, the aforementioned
document was marked for
17 identification as JSC Exhibit
18 Number 33-X.)
19 JUDGE von KANN: Let's pause a moment
20 here. What are we going to do about the restrictive
21 legend? Are you indicating, Mr. Mause, that this can
22 be unrestricted in this group or do you want to keep
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the document restricted but you don't mind questioning about it or what?
MR. MAUSE: We will withdraw it as to this exhibit, Your Honor.
JUDGE von KANN: Okay. Thank you. That will simplify things. All right, Mr. Garrett.
MR. GARRETT: Bear with me just one second.
10 (Pause.)
BY MR. GARRETT:
12 Mr. Krupit, do you have before you JSC
13 exhibit number 33-X? Yes.
15 Q Are you familiar with what has been marked
16 as 33-X? Generally, yes.
18 Q Could you describe it for the record?
19 This looks to be a cue sheet for the
20 Braves-Rockies game on 4, April, 18th, 1999 on TBS.
21 Q For the record, what we have tried to do
22 here is present each of the cue sheets for those
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sports telecasts that you bad matched cue sheets for in your study, 1998 to '99, as reflected in exhibit 32-X. Is that clear? Yes. I think I see that now.
Q Now, were you able to find all of them,
say, for one? There was a hockey telecast that we are
unable to locate in those 15 boxes. I think we have the remainder.
Okay.
10 Q On the first two pages of -- actually,
it's tbe first, three pages of 33-X. We have a cue
12 sheet for that April 18th game that you mentioned, right?
14 Yes.
Q Let's just go through the columns here so it's clear what information is on this. The first one 17 is labeled "seg." I assume it stands for segment. Is
18 that right?
19 I believe so.
20 What is shown in the segment column?
21 The second column?
22 Q No. In tbe segment column, the very first
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column. It looks like it's a description of the music cue itself.
Q This shows the point in tbe particular telecast where tbe music was played, right? Right.
Q And then tbe second column, we have "music
title." Do you see that? Yes.
10 Q It appears that the music title for
everything for this particular game is identified as
12 Braves theme. Do you see that?
13 Yes.
Q One question that raised, we bad a lot of
15 discussion here about tbe ambient music bere. Can you
16 tell us why there would be no ambient music listed
17 under music title?
18 The producer of this cue sheet, which 19 looks to be Turner Sports, did not include it, which
20 is why it's not here.
21 Do you know why they don't include it?
22 I do not know why.
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Q All right. In the next column, we have
identified the term "composer." Do you see that? Yes.
Q I assume that would be the composer of the particular piece of music here, right? That's right.
Q And that's Hdd Kalehoff, correct?
Hdd Kalehoff.
Q And in the next column, we see
10 "Publisher." Do you see that? Yes.
12 Q And the publisher here happened to be
13 Super Satellite?
14 That's right.
15 Q Do you know who Super Satellite is?
16 That's the publisher of the Braves game.
17 Q In the next column, "Recording Artist, if
18 applicable." That's all N/A. Do you see that?
19 Yes.
20 Q Why would it be marked "N/A"? 21 Well, it's a year it wasn't recorded or 22 they don't know who recorded it if it was recorded.
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Q Okay. In the next, we see "Length of
Usage." Do you see that? Yes.
Q That shows the amount of time that that
particular musical work was aired on this WTBS Braves telecast? That's right.
Q And if we add up all of those lengths of
time, we should get a number that matches what is in
10 your database, correct? Yes.
12 Q Next we see "Usage." Do you see that?
13 Yes.
14 Q It shows "Theme, Feature, or Background."
15 Do you see that?
16 Right, uh-huh.
17 Q I see there that there is a little "x"
18 under the "Theme" column for the very first item. Do
19 you see that?
20 Yes.
21 Q Nowhere else is there a little "x" under 22 the "Theme" column, right?
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Right.
Q Do you know wby that is? Because they were all Braves themes that were played throughout this telecast? The theme is particular usage within a show. Even though the title appears to be "Braves Theme," it's only in that first row that Turner Sports, the producer of the cue sheet, decided that
that was tbe theme or tbe opening of the show, that
10 tbe usage is really where in tbe show or for what purpose that particular musical piece is used if I
12 made that clear .
13 So it's considered a theme tbe very first time that it is played and it's not considered a theme
15 at any other point during the game or during tbe
16 telecast of the game. Is that right?
17 That's right. Themes are basically either
18 opening of tbe show or closing of a show or both.
19 Q And does that go back to the discussion
20 you bad with Mr. Stewart bere about how themes are
21 weighted and compensated?
22 And wealthy distribution.
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Q Yes.
Yes. We already said that.
Q Okay. And in background, we see tbe B. Is that Bl or BI? BI. BI, referring to background instrumental or off-camera performance, instrumental music only, right? That's right.
10 Q In tbe next set of columns, we see that
this particular piece of music, BMI is the performing
12 rights society, correct?
13 That is correct.
Q And, last, "Source" indicates that it'
15 original. What does that mean?
16 I could not tell you the answer to that
17 question.
18 Q I want to go to the second page bere. We see a number of places where tbe term "bump" appears.
20 Do you see that?
21 Yes.
22 Q Does that simply mean that the theme was
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used as it was bumped into a commercial or out of a commercial? Yes. Those are often called bumpers.
When a show goes out to commercial, they'l call that a bumper. There will be theme music as they fade to commercial as well as coming back from commercial.
Q And in the second page there, sixth item there, you see under "Segment," it says, "Promo,"
10 "Music Title, NBA Theme." Right.
I thought that you weren't including promos in your study?
We were not to the extent that they were not included in cue sheets. Whatever music is included in cue sheets is included in the study.
17 Q Okay.
18 For the most part, promos are not included 19 in cue sheets, and for the most part, they are not
20 included in the study.
21 MR. GARRETT: I would move 33-X for
22 substantive purposes.
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MR. MAUSE: No objection.
JUDGE von KANN: Okay. It will be so received.
(Whereupon, the aforementioned document, having previously been marked for identification
as JSC Exhibit Number 33-X, was received in evidence.)
BY MR. GARRETT:
10 Q Mr. Krupit, we were only able to identify eight sports programs in your study that had matched
cue sheets. If we look on exhibit 32-X, it shows the
13 number of minutes of music in those telecasts. Do you see that? Yes.
16 Q And they range from a low of about 6.25 17 for a 3-hour period to a high of about 13 '8 minutes
18 in a 2.3-hour show. Do you see that?
19 Yes.
20 Q Do you have any reason to believe that
21 that range is representative or reflective of the
22 amount of music that is used in sports telecasts
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generally?
To the extent that music is reported on cue sheets, I wouldn't disagree that that is representative.
Mr. Krupit, turn to your testimony on
let me just ask you also, the cue sheets that we have here in exhibit number 33-X, do you have any reason to believe that any of these cue sheets so far as they report the music and sports events or sports telecasts
10 are unrepresentative? I think they'e slightly
12 under-representing music or they'e somewhat
13 under-representing music on sports. I do watch quite
a bit of sports, some more than others. And the cue
15 sheets represent the programming that is sponsored by
16 the producer of the show, which is basically the theme
17 in the bumper music as we see.
18 Occasionally there may be a promo in there
19 for a few seconds. But there's other music. I guess
20 you can call it -- some of it might be ambient. But 21 the during the course of a sports telecast, it's very
22 common to hear many recognizable feature songs that
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are played in the arena during the course of the game or while the announcers are talking or if they'e
showing some replays of some highlights of that game and often have music in the background of that. Those kinds of usages of music are rarely
represented in cue sheets. So to that extent, I think these under-represent music.
Q You say your cue sheets of sports telecasts, you would typically see the ports of
10 ambient music?
I personally have not noticed many cue
12 sheets with ambient music in it.
13 Q So in that sense, to the extent that there is very little ambient music, if any at all reported
15 here in these cue sheets, that's not atypical of what
16 you would find of other cue sheets that would come
into BMI?
18 I would agree with that.
19 Q Let me just ask you to turn to the cue
20 sheet that is sixth from the rear. Do you have that?
21 JUDGE von KANN: Which exhibit?
22 MR. GARRETT: 33-X. Excuse me.
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THE WITNESS: Which would be the sixth
one?
BY MR. GARRETT:
Q It's the one from Fox Sports Net, cable
network, music cue sheet, 12-16-98. Do you see that?
Okay.
Q Do you see that, Nr. Krupit? Yes, I have that now.
Q We go to cue number 16. Do you see that?
10 Yes. It refers there to hockey highlight,
12 nSolid Electric
Q Do you know what that is a reference to?
No, I don'.
16 Q Do you know what the song title "Solid 17 Electric" is? Is that song title familiar to you? 18 It doesn't ring a bell.
19 Q Okay. And then you see the same listing 20 about two lines further down, right? 21 Yes, I see that.
22 Q And those two really account for the bulk
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of the -- I shouldn't say the bulk, but they'e certainly the longest segments of time which music is played, correct'? That's true.
Q One other thing. If you go over to the "Society" column at the end? Yes.
Q Number 16, "Solid Electric," we see ASCAP
there, but then on 18, we see BMI for "Solid
10 Electric." Do you know why that is? Why would there be two different performing rights societies listed? That means that Pox Sports made a mistake on one of those.
Q You guys are supposed to get them when 15 they do that, right?
We do. We check to see who -- we don'
17 take their word for it as to who the proper performing 18 rights -- well, in any case, certainly the publishers
19 do move back and forth between BMI and ASCAP. And so
20 part of the process of processing cue sheets is to 21 verify the current performing rights organization of
22 the songwriter.
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So they apparently don't know who it is in
this cue sheet. So it would be BMI and ASCAP may have both gotten this cue sheet. And each of us would
determine who S. Donnely is currently affiliated with.
Let me just ask you this last set of
questions that I have here, Mr. Krupit. On your testimony, page 10, do you have that there in front of you? Yes.
10 Q In paragraph 23, you refer to the station
WFMT that you also discussed with Mr. Stewart,
12 correct? Yes.
14 Q And your research here shows that it was
15 carried by 65 cable systems or about 400,000
16 subscribers. Do you see that?
17 Yes.
18 Let me, if I could, just ask you to take
19 that black binder that you have to your left there and 20 turn to the Copyright Royalty Tribunal's 1983 decision
21 or the decision in the 1983 case.
22 Okay.
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Q Turn to page 12799. Is that 12799?
Q Yes, sir. It's in the upper right-hand column. One-two-seven-nine-nine
Do you have that in front of you? Now,
will you
No.
Q I'm sorry.
10 Oh, I see. It's a -- I go from 12798 to 12800. It's gone, 12799. I'e got it.
12 And Mr. Winters said that particular one
13 was put together by Music Claimants.
14 I have no knowledge of that. It wasn'
15 me.
16 Q Now, they have the assignment of
17 reproducing the 1983 decision. We thought that might
18 be symbolic.
19 In the right-hand column there, 12799,
20 there is a discussion about the carriage of WPMT. Do
21 you see that all the way down at the bottom, last
22 paragraph?
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Would this be the paragraph beginning with
"Commercial radio and radio compilation" ?
Q Yes, sir. Yes.
Q Were you aware that evidence presented in the '83 proceeding concerned the extent of carriage of
WFMT?
No, I was not.
If we look here on page 12799, there is a
10 reference to the fact that in 1983, there were 179
cable systems with 800,000 subscribers who carried
12 WFMT plus an additional 99 cable systems just outside
the Chicago area with another 300,000 subscribers. Do you see that?
15 Yes, I see that.
16 So if we put the '83 decision together
17 with the data that you had provided, the only
18 conclusion would be that the amount of carriage of
19 WFMT had declined during this period?
20 I don't know if you would be comparing 21 apples to apples because I don't know what the source,
22 the comparative source of each of these two pieces of
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information comes from. I would have to look at that first.
Q I think that is a fair statement. But the
fact is that when we look at the '83 record, we see that there were something like over 200, almost 300
systems that had carried WFMT with over one million subscribers, correct? That's what this says, yes.
Q And if we look at the record that you
10 created here, what we would see is that there were 65
cable systems with about 460,000 subscribers who
12 carried WFMT?
13 Yes. I would add that there was no
attempt to uncov'er all of the cable systems that WFMT
15 was played on simply to reference one particular
16 source that had this one particular set of data on it.
17 Q Just to show that WFMT was still around?
18 That's right.
19 Q With the statements of account that Mr.
20 Stewart discussed with you, did you personally select
21 those statements of account from the Copyright Office?
22 No, I didn'.
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Do you know how those particular statements of account were selected?
No.
Q Do you know how many statements of account were reviewed before they found particular statements of account that are included here in your exhibit?
No, I don't know that.
Q Do you know what criteria were given to whoever looked for these statements of account to
10 determine which ones to pull?
No, I don'.
12 You are aware, are you not, that cable
systems, regardless of whether they'e Form 1, Form 2, or Form 3, do not pay any additional royalties for the
15 carriage of radio stations?
16 I thought that there was some amount, even
17 though it might be small, -- I'm not sure how small or
18 large it is, but I thought there was some amount that
19 was awarded in this type of proceeding for carriage of
20 FM signals.
Q I am not talking about the amount that was
22 awarded. I was unclear with my question. Cable
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operators pay royalties into the Section 111
Compulsory Licensing Fund. Do you understand that? Yes.
Q Do you know whether in calculating those royalties that it makes any difference whether they carry any radio stations or not? I have no idea.
MR. GARRETT: I have no further questions.
Thank you, Mr. Krupit.
10 JUDGE YOUNG: I want to ask you a ctuestion about the recording of ambient music.
12 THE WITNESS: Okay.
13 JUDGE YOUNG: These cue sheets, these are
14 prepared by the broadcaster after something has aired?
15 Is that how it works
16 THE WITNESS: Not always.
JUDGE YOUNG: -- from the perspective of
18 the sporting event?
19 THE WITNESS: They are sometimes prepared
20 beforehand.
21 JUDGE YOUNG: If it's prepared beforehand,
22 how is it possible, then, to report ambient music?
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THE WITNESS: If it is prepared
beforehand, there is no way of reporting ambient music, just the scheduled number of bumpers for commercials and theme music.
JUDGE YOUNG: And if it's reported
afterwards, how do they go about reporting ambient
music or how do you think they should go about reporting ambient music?
THE WITNESS: The same way anyone else can
10 create a cue sheet, they would time the pieces of music that are aired and included on a cue sheet. I
12 think it's something that could be done.
13 JUDGE YOUNG: But that suggests that an ambient music is any time there is mucic played, say,
15 in an arena by the organist, whether or not it
ultimately is picked up or heard on the TV broadcast,
17 that that should be covered, you'e suggesting?
18 THE WITNESS: No, I don't think so. I
19 think it's possible certainly by the TV people because 20 if they'e in a control -- I'l just give you an 21 example of how it might be done. If they'e in a 22 control booth, they know when they'e live and when
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they'e at commercial. And the pieces of music could be identified and timed while they'e live, as opposed to going to commercial. I think there's a way of doing that.
And there may be other ways even after using a tape of the broadcast that could be done.
JUDGE YOUNG: So we'e saying when there' ambient music, which, actually, if you were here for
Mr. lyons, he was talking about using the example of
10 the Knicks City Dancers in New York, which come out frequently during breaks, which is when there are
actually commercials being aired on TV'?
THE WITNESS: Bight.
JUDGE YOUNG: So something like that wouldn't count because the viewer is watching a commercial?
17 THE WITNESS: That's right. If it's not
18 shown on TV, it should not be in the cue sheet.
19 JUDGE YOUNG: And then. if you have some
20 music that is occurring during a period of time when
21 the game is in progress but you have the announcers
22 talking, you know, the TV broadcast announcers
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talking, so that it's not intended to be picked up by
the TV station, that wouldn't count either?
THE WITNESS: I think it should because it's background music.
JUDGE YOUNG: But don't we have to somehow measure whether or not either it's intended to be
picked up or the fact that it is picked up?
THE WITNESS: I am not sure that I can make that qualifying statement as to whether it should 10 or it shouldn'. If the music is coming out over the airways, I believe a songwriter should be compensated
12 for that. And the only way to do that is to get that
13 music, listen on a cue sheet.
JUDGE YOUNG: You know, in response to
15 this hearing, the other night I was listening to a
16 basketball game, and I was trying to hear the music. It's not easy, particularly in a basketball game,
18 because the announcers like to talk.
THE WITNESS: Yes, I noticed it.
20 JUDGE YOUNG: Okay. Thanks.
21 JUDGE GULIN: Let me ask one question,
22 too. Are you saying that the networks also do not
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provide cue sheets for ambient music for sporting events?
THE WITNESS: You know, I am not entirely sure about that because I haven't looked at it in some time.
JUDGE GULIN: Okay. If they were not,
would that be something that BMI would want to talk to the networks about?
THE WITNESS: Possibly. Maybe they have.
10 That would be outside of my domain. But it may be
something maybe they have talked about. Maybe it'
12 something they'e working on together. But, again,
13 that is outside of my domain. I am really not aware
14 of that.
JUDGE von KANN: Mr. Garrett?
16 MR. GARRETT: Just one question following
17 up on that.
18 BY MR. GARRETT:
19 Q When you look at the exhibit 33-X, we do
20 see that some of the cue sheets there are from the Fox
21 Network, correct? Yes.
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Q And what we don't have are any cue sheets
from ABC, CBS, or NBC, correct? That's right.
MR. GARRETT: I have nothing further. Thank you.
JUDGE von KANN: We have been going about an hour and a half. I think we'l break unless we'e within the very few minutes of finishing. Mr. Dove,
does PBS have
10 MR. DOVE: I believe we do not have any questions, Your Honor.
12 JUDGE von KANN: You don't have any
13 questions. All right. Canadians?
14 MR. VOLIN: We don't have any questions.
15 JUDGE von KANN: Oh, sorry. I assume you
16 do have a few guestions.
17 MR. OLANIRAN: Yes, I do.
18 JUDGE von KANN: Okay. I am sorry. Let'
19 break until 5:10 and see if we can finish by 6:00. 20 Let's try. 21 (Whereupon, the foregoing matter went off
22 the record at 4:58 p.m. and went back on
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the record at 5:11 p.m.)
JUDGE von Mr. Olaniran, as I indicated, I would like to try to stop by 6:00 today. However, I don't want you to feel shortchanged on your
time. I do believe Mr. Krupit was shown as carrying
into tomorrow on your schedule if we need to. So
let's try to complete him today, but if we can', we can't and he will carry over until tomorrow morning.
MR. OLANIRAN: I am honestly hoping that
10 we can, aside from the fact that I don't want to be
the one that holds you from your beloved
12 JUDGE von ~: No. We will stop at 6:00 and come back and finish him tomorrow if you need more
14 time
15 MR. OLANIRAN: Okay. And depending on the
16 answers to some of the questions, some of the
17 questions may be more appropriate for Dr. Hoyle.
18 We'l see.
19 JUDGE von KANN: All right. Let's go
20 ahead and see.
21 MR. OLANIRAN: Good afternoon, Mr. Krupit.
22 My name is Greg Olaniran. I am counsel for Program
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Suppliers.
THE WITNESS: Good afternoon.
CROSS-EXAMINATION
BY MR. OLANIRAN:
Q You indicated at the beginning of your
written testimony that you managed BMI's statistical
sampling operation. Do you consider yourself a statistician?
I am familiar with statistics. I work
10 with statisticians. Over the years, I have taken
courses in it. A lot of it is on-the-job training.
12 Q You would not consider yourself a trained
13 statistician or statistician by experience. Is that
14
15 Neither. I would not.
16 Now, other than the work that you have
17 done in this proceeding, have you ever applied
18 statistical sampling to studying music used on distant
19 signals?
20 No, I haven'.
21 What about applying statistical sampling
22 to music used on signals carried by cable systems in
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general?
On cable systems specifically?
Q Yes.
No, I haven'.
Q I would take it, then, that you would not have applied statistical sampling to validation of music used on distant signals or on cable systems? That's correct.
Q Now, on page 4 of your testimony, this is
10 where you indicate -- I am trying to find the percentage. At the top of page 4, you indicate that
12 approximately 80.2 of the '91-'92 proportion of license royalties that the sample station represented
80.2 of the '91-'92 compulsory license royalties. Do you see that? Yes, I see that.
17 Q And, therefore, the '98-'99 figure you
18 indicate is 61.3? Do you see that?
19 I don't see the 61.3. Can you point that
20 out to me? It's on this page.
21 Q I am sorry. That's on page 5.
22 I see it. It's percentages.
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Q And that would be the percentage of compulsory license royalties represented by the stations in your sample?
Not exactly. The 80.2 percent on page 4 of the '91-'92 study is represented by the top five stations in the sample.
Q What was the number for the total sample
for '91-'92? Do you know? Well, in reality, it's 100 percent because
10 you have the top 5 stations representing 80.2 percent.
And you sample the remaining 19.8 percent. And that
12 sample represents that remaining share.
13 So that the sample of the five -- the bottom five stations represents the remainder after
the 80.2. So, in essence, you are representing 100 percent of the fees.
17 Q Then in '91-'92, the 61.3 percent
18 represents the top 10?
19 That would be for '98-'99.
20 Q I'm sorry. For '8- '9?
21 Yes. And 61.3 represents the top 10, is
22 represented by the top 10 stations; whereas, the
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and then the remaining 5 sample stations represents the rest.
Q Now, you indicate in paragraph 11 that you expanded the '98-'99 to include, and I quote, "a high
percentage of the fees generated." Do you see that? Yes.
Q The question I have is the percentage of
fees generated by the top 10 in '98-'99 is percentage
points less than what was generated by the top 5 in
10 '91-'92. So why did you have lower -- I guess your definition of a high percentage of the compulsory license fees? The problem in '98-'99 is once you get beyond the top ten or the top nine stations, the remaining stations have a very, very small percentage of fees generated.
17 You have to -- I haven't calculated how
18 many stations you have to add, but you might need to 19 add dozens, if not a couple of hundred, stations to 20 get up to that same 80.2 percent figure as you do in
21 '91-'92. And that is simply not feasible for the
22 study.
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Why is that not feasible? The amount of time it would take and the amount of effort to be expended was far greater than
we were able to put into the study. Would it have been something beyond using the same data that you have for cable data?
Excuse me?
Q Would the amount of extra work involved
10 have been anything more than taking additional data from cable data and adding it to what you already
12 have?
13 Well, the cable data just tells us the amount of fees that are represented in each station.
15 The study would have to -- as we saw here with Mr.
16 Stewart, we then have to gather all the program
17 listings, all of those stations, gather all the music
18 content for all of those stations and all of those
19 dates. Then you would have 10 stations in one study
20 and maybe 300 stations in another study. The amount of effort to expend on that is
22 tremendous. That's why we have samples.
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Q Speaking of samples, do you agree that the goal of sampling is to produce a sample representative of the population that is being studied? Yes.
Q And you would also agree, then, that a sample must be representative of that population in all characteristics except for size? I'm sorry? Can you repeat that?
Q That the sample would be representative of
10 a population in all characteristics except for size?
That depends on how you are trying to
12 create your sample.
13 Q Are you familiar with the term "random sample "?
15 Yes.
16 Q What do you understand by that?
17 Random sampling -- randomness is an
18 essential part of any statistical study or statistics.
19 If you don't have randomness, then it is possible for
20 your data to be skewed.
21 Q So what do you understand by the term
22 "random sample"~ What does the term mean?
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Random sampling is where you need to
introduce randomness to some portion of the process of implementing a sample for some study that you are doing.
And that randomness can come in many different forms. In this case, the randomness was
produced by tbe stations and tbe dates.
Q I guess the opposite of random would be non-random sampling, right?
10 I suppose.
Q What would that be?
12 I don't know. Non-random sampling.
13 Q Okay. Now, if a sample is not random, isn't it true that you can't project the results to
15 the universe that bas been studied?
16 I am not sure if that is the case or not.
17 I am not a statistician.
18 Q Let's turn to page 3 of your testimony for
19 a second. I think it's paragraph 8. And it's the
20 fourth line into that paragraph. Do you see that?
21 It's the sentence that begins on tbe second line, and
22 it goes all the way through, I guess, the fourth and
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the fifth line.
"Because it is impractical" ? Is that the
Q The sentence starts with "Because," and
then down to tbe fourth line, where it says, "We
assembled data." Do you see that? Yes.
Q It says, and I quote, "We assembled data from representative programming carried on sample
10 stations for each pair of years." I guess my question is, what do you mean by tbe term "representative programming"'?
Again, the sample was constructive to create representative programming or programmings that would represent the music on cable, on distant cable stations.
17 Q Now, are you talking about programming
18 that represents selected stations or are you trying to
19 represent the distant signal universe?
20 We'e trying to represent tbe distant
21 signal universe.
22 Q So, then, what was the benchmark against
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which you judge whether you had, in fact, selected representative programming? This is more I think Dr. Boyle's area.
Q Pair enough. With regard to the FCC composite week, I think you indicated earlier on
and please correct me if that's not the case. Did you say that it was designed to provide a sample with representative programming? Yes.
10 Again, I need to clarify something. In
paragraphs 9 and 10 -- and it's page 3 going on to
page 4 of your testimony. Now, nowhere in either one of those paragraphs where you are discussing the sample stations do you refer to the stations as being a random sample. Are you saying that the stations are or are not a random sample?
17 The stations themselves, at least the top
18 five, are not selected to be random. The top five
19 stations in '91 and '92 are selected to represent the
20 majority of the fees generated in those set of years.
21 Q And the balance?
22 The balance was a random sample,
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stratified random sample. I'l qualify that.
Q How, have you ever picked a study like this in any of the studies that you have done? Have you ever picked a sample like this in this manner?
How do you mean "in this manner"?
Q Have you ever picked stations? I don' know if you have studied stations in the past for
perhaps some of the other studies. And my question is whether you have ever gone about stratifying the
10 sample in this manner, in the manner that you have in this proceeding?
12 Well, I have done any number of samples--
13 any number of different processes. Each sample has to
14 be designed basically for the intent of that
15 particular sample. I mean, this sample was designed
16 for the purpose in this study, designed to be the best
17 representative of how we are trying to represent this
18 information.
19 Each study is designed differently on its
20 own merit and its own purpose.
21 Q I take it the answer to that question is 22 no, then, that you have never picked a sample in this
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manner in some other study that you have done? I think I -- as I said, every sample is different.
Q Now, it's true that before you selected the dates for the study years, you had it in mind that you wanted to represent each day of the week, correct? Yes.
Q You also wanted to cover seven weeks in a given year?
10 Seven different weeks.
Q Seven different weeks. Okay. And that'
why you used the FCC composite week'? That is right.
Q And the way you went about doing this is
15 you took the FCC composite week, and you sort of picked the date to reflect the change in the
17 calendars. Is that sort of a general way that you
18 went about doing this?
19
20 Q Okay. Now, are you familiar with the term
21 "purposeful sampling" as a sampling method?
22 No, I am not.
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JUDGE von KANN: I am looking at page 3 of
your testimony, which in the footnote 2 speaks at Dr. Boyle's role in designing and completing the study.
Was Dr. Boyle the principal designer of this study or did you design it jointly or did you sort of carry out
his design? Who did the design of it, would you say?
THE WITNESS: I would say that the primary
design is Dr. Boyle's. We did consult on a number of
items in it. He is the statistician and designed the
10 study.
JUDGE von KANN: Okay.
12 BY NR. OLANIRAN:
Q Just following up on that, what particular
14 areas did you consult on'? That may actually save us a little bit of time.
16 We did consult on a number of different
17 items, you know, throughout the execution of the
18 study. One thing I mentioned earlier today was that
19 we discussed the composition of the stations in '98
20 and '99.
21 Q Now, with regard to the FCC composite
22 week, was it Dr. Boyle's idea or was it yours?
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You know, I actually don't remember
exactly. We have been doing this for quite a while.
We have been using FCC composite week for a number of years.
Q So it's something you are quite familiar with? Yes.
I think the question came up earlier about
the original purpose of the FCC composite week. I
10 think it was Mr. Stewart who asked you the question. Are you aware of the original purpose of the composite
12 week?
13 I know they -- somebody mentioned it.
14 They use it for some licensing areas and -- to check
15 programming. That's all I know about it.
16 Do you know whether one of the uses was
17 for measuring elements of music and programming?
18 I don't know that.
19 Q Now, I think in paragraph 5, you refer to
20 the composite week as being randomly generated,
21 paragraph 5 of your testimony on page 2.
22 Was that paragraph 5 or page 5?
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Q Paragraph 5. I'm sorry. Actually, I am going to withdraw that question.
Now, on page 6 of your testimony, if you don't mind turning to that, I think at the top of the
page is where you were describing the FCC composite
week. Tell me if you know. Do you know once a selection of the week was made, whether they put the card back in the pile or did they keep it out? They kept it out. And that's called
10 sampling without replacement.
Q Do you know what impact, if any, that
12 would have on the projection of the universe using the
13 sample?
I'm sorry? What would have the impact?
15 Q By keeping the card out, as opposed to
16 keeping it in.
17 Oh. We would not repeat the same week.
18 If you only had 7 days to choose from and 52 weeks, I
19 would think you would want to have 7 different weeks 20 throughout the 52. And I think it would be
21 counterproductive to have 2 of the same weeks when you
22 only have 7 out of 52 to choose from in my opinion.
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Q Still on page 6 and I guess going to paragraph 15, if I understand you correctly, the second column -- you have a table in paragraph 15 at the bottom of that paragraph. The second column is
actual original FCC date. And then the subsequent columns are the dates that you picked for the study
years. Do you see that? Yes. That's paragraph 15. So, for example, if you look at April 17th
10 for 1983, that would be the date. That would be a
Sunday. And then if you looked at the next date,
12 which is October 24th, that would be a Monday and so
13 on and so forth, right?
14 Yes.
15 Q Now, you did something slightly different
16 from what the FCC did, did you not?
Well, the FCC -- I'm not sure what the FCC
18 did on a regular basis. Well, we just started with
19 the FCC week and adjusted each year. Basically what
20 we are accomplishing by doing that is not picking the
21 dates ourselves, which in itself introduces randomness
22 to the dates. What that does is take the bias out of
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the study.
Q Let's go over i'irst you took tbe original FCC date, correct? Yes.
Q And then you looked at the day of tbe week that it represented, correct? Yes.
Q And then you go to a particular study, let's say, 1991, right?
10 Right.
Q And then you picked the actual date. You
12 looked at the actual date that that corresponds with.
13 So, for example, in 1991, you would go to, say, April
14 17th, right? Yes.
16 Q You looked at what date it fell on,
17 correct? And then you picked the closest Sunday to
18 tbe date it fell on. Is that 19 Yes, that's it.
20 Q So if you look at, for example -- I have 21 a calendar here. It might be easier to do this. I
22 don't plan on turning this in as an exhibit, but it'
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easier to follow.
If we look at the very first entry -- this
is a 1983 calendar -- and we go to April for 1983, you
go down and you see the 17th, that's a Sunday, right? Yes.
Q To do what you have done, first you'e
decided. You picked April 17th. And then you went to
let's take 1991. Okay? Right.
10 Q And then you looked at April 17, 1991, correct?
12 Yes.
13 Q And then you said, "Well, I need it going
14 back three days." And you picked the Sunday? Yes.
16 Q Is that a fair description?
17 Yes.
18 Q All right. Now, do you know whether April
19 14th, 1991 falls in the same week as April 17th, 1993? 20 It looks like it does by this calendar.
21 Q Now, how are you counting the weeks?
Well, I am looking at 1991. I see April
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14th, and April 17th is in the same week if you use Sunday as the beginning of the week.
Now, if you go to the top of January 1991,
Yes.
Q do you see the year actually begins on a Tuesday? Right.
Q So if we are looking at a 52-week year,
10 the first week would end on January 7, 1991, wouldn' it?
12 Could you say that again?
13 Q I'm saying if we are looking at a 52-week
14 year
15 Right.
16 and the year started on Tuesday,
17 January 1, 1992,
18 Right.
19 Q the end of the first week would be
20 January 7, 1991, would it not?
21 Yes.
22 Q And then if you were to start counting the
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weeks, each week would end on a Monday throughout tbe year? It you decided to count it that way, yes.
Q Would you do it any other way? I might just count Sunday to Saturday and say that's the first week, even though two days are in the previous year.
Would that give you a 52-week year with 7 days in each week?
10 You wouldn't always have se~en -- well,
you could always count Sunday and Monday as the
previous year. One way of doing that is, to say what is the majority of days, where does that fall. There
are a number of ways of doing that. Choose any number of ways, and you still are going to have randomness, however you do it.
Q But it is possible based on the way that 18 you have done it, though, that the date that you have 19 picked in your study would be different from the
20 original date that the FCC picked, from the original
21 week that the FCC picked? 22 I guess that would depend on where you
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decided to begin a week, the first week of the year.
Q I don't think I was clear on that question. The date that you picked, it's possible that it would fall in a different week than the week
of the original FCC date? I did understand. Again, it really depends on what you define as a week. Are you defining the week from Sunday to Saturday or from the
first day of tbe year, wherever that may fall?
10 Q Let's assume that you defined the week as beginning on January 1st and ending on January 7th and
you went all the way through. And let's assume again that some of the dates that you picked now fall in a
different week from the week that it, was in an FCC
15 study. Are you with me?
17 Q My question is, did you investigate this
18 occurrence at all?
19 No, we didn't look at it at all.
20 Q Okay. Now, did you consider whether or 21 not it would have any impact on the randomness of your
22 study?
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It wouldn't have any impact because we didn't choose a week for any particular purpose. Then it's no less random than choosing any other week.
Now, on page 8 of your testimony, I think it's where you talk about -- I'm sorry. At the top of
page 7, where you were making a few references to the
TV Data data, and then on page 8, in paragraph 18 is where you talk about the various steps used to validate the information on the cue sheets.
10 Yes.
Now, how do you verify, again, the length
12 of the music played?
13 On an episode by episode basis. Not every
14 cue sheet is checked for that because we have to
15 pretty much rely on the producer to give us an
16 accurate representation of the music.
17 However, BMI does have a random audit in
18 place that examines videotapes of programs and checks
19 against cue sheets that are submitted to make sure
20 everybody is submitting cue sheets the proper way. I
21 believe ASCAP has a similar process in place.
22 Now, would that be the same audit that
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would verify that the song titles were actually the ones that were played? Yes, it would be.
Q Do you recall in how many cases you had to use average cue sheets? I don't recall, no.
Q You may have answered this before. So I
apologize for asking the question again. How again
did you go about eliminating the network programs?
10 Okay. TV Data identifies the source of
each . program, whether it's syndicated, locally
produced, or network-originated. So we were able to easily exclude the network programs.
How did you do that? It's a field. It's a field value.
Q So you based it on whatever the TV Data
17 data said was syndicated or
18 Really network and
19 Q And you didn't do anything to adjust? I
20 assume that TV Data data came categorized in the
21 programs and also I suppose identifying which ones are
22 network and not network programs. Is that correct?
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That they identify which are network and non-network. Yes, they do.
And how did you verify that information
that TV Data provided was correct?
We spot-checked that.
Q You spot-checked them to make sure that they were actually compensable programs for the purposes of this proceeding. Is that correct?
We checked to make sure that their
10 indication of tbe network and non-network was accurate
and something that is done on. a normal course of
12 business to make sure that TV Data is giving us the
13 correct information.
So once you took the data, you separated
15 network from not network, and then you assumed that
16 whatever was not network was always compensable for
17 the purposes of this proceeding, correct?
18 Yes.
19 Other than the spot-check, is there anyone
20 on your staff who is familiar with program
21 categorization?
22 I wouldn't say program categorization.
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For the purposes of this proceeding. Well, they knew that network programming
needed to be excluded. So that's what was done.
Q For the purposes of the programs that were
categorized by TV Data, did you do any further spot-checking to see whether or not the entirety of those programs were compensable? I'm not sure I understand your question.
You separated the network from the
10 non-network. Yes.
Q And then you looked at the TV Data data
13 for non-network. Okay?
14 Yes.
15 Q We'e now in that run. Now, did you do
16 anything further other than just knowing that the entire -- in the non-network category was compensable.
18 Did you do any further investigation?
19 No. All of that was -- to me was
20 considered compensable or obviously for -- it was part
21 of the study, as I have been instructed.
22 Q Did TV Data understand that you were using
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the data for the purposes of this proceeding?
No.
Q Now, were you able to match more syndicated programs than most other categories? I haven't looked at that specifically, but as a general statement, I would say that is probably correct.
So syndicated program has producers and
film companies were much more efficient in responding
10 to view, then, perhaps all the program categories? I think it depends what program categories
12 you'e talking about, but I won't mention any names.
13 We have a pretty good coverage on syndicated film.
14 Q Now, on page 9, I think it's paragraph 20
15 and 21 you were discussing the total number of hours
16 of programming I guess that were studied. I just want
17 to make sure that I understand this correctly. If you
18 divide the '91-'92 hours that you have, 2203 hours
19 do you see that?
20 Yes.
21 Q And you divide that by 10, that's about
22 220 hours per station. And then you divide that by
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another seven. You get about 31 hours. Now, is that for the combined '91-'92 years so that you divide by two to get what the average is per day per year? That's combined, but that average makes a lot of assumptions. Put it that way.
Q What assumptions? What do you mean? Well, you'e assuming that every station is equal in terms of the number of hours and the number of minutes of music.
10 Q I'm just trying to get an idea for mathematical average because, of course, if you just
12 divide by 7 days, you get 31 hours a day. So my
13 question is whether or not the 31 hours would cover
14 both years or are you still talking about 15 It's both years'eep in mind that the 16 network program is excluded. So it will be coming out 17 to less than 24 hours per day on average.
18 Q Now, still sticking to paragraph 21 on
19 page 9, now, do you know what the unweighted minutes
20 per hour are for '1- '2?
21 Not offhand.
22 Q Okay. And, therefore, '91-'92, you can
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accept, subject to check, that that is 20. 9? It' fairly close numbers, right? It sounds like '98-'99 is higher than '91-'92, even in an unweighted state. That's by only roughly one.
Q One minute?
One minute. I'm sorry. Yeah.
Q If you look at the proportionate share per hour of the unweighted minute per hour for '91-'92 and
10 you compare it to the same number for '98-'99, you would say that s fairly close, is i't not? Nell, that's a value judgment to say something is close.
Q Just mathematically. I'm not They'e a minute apart. Closer than that,
16 that's not for me to make a value judgment on that.
17 And they'e both within the 33-34 percent
18 range in terms of the proportion of an hour that they
19 take up. Do you understand what I am saying?
20 No, I don'.
21 If you divide 19.9 by 60, you get 33
22 percent. And you -- and that would be the result, the
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proportion of the unweighted minutes per hour for
'91 — '92 I see what you'e saying, yes.
Q When you compare those percentages, one is
33 percent. And you look at the '98-'99, it'
proportion to an hour. And that's dividing 20.9 by
60. That's 34, approximately 35 percent. Right.
And those are fairly close, are they not?
10 They sound fairly close. Of course, you are not taking into account the number of minutes per hour that are non-program-based.
MR. OLANIRAN: That's all the questions I
14 have.
15 JUDGE von KANN: Okay.
16 MR. MAUSE: No redirect 17 JUDGE von ~: Okay. 18 (Whereupon, at 5:50 p.m., the foregoing
19 matter was recessed, to reconvene at 9:30
20 a.m. on Tuesday, May 20, 2003. )
21
22
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CERTIFICATE
This is to certify that the foregoing transcript in the matter of: Hearing: Distribution of the 1998 and 1999 Cable Royalty Funds
Before: Library of Congress Copyright Arbitration Royalty Panel
Date: May 19, 2003
Place: Washington, DC represents the full and complete proceedings of the aforementioned matter, as reported and reduced to typewriting.
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