SMU Law Review Volume 37 Issue 4 Article 1 1983 The Recording Musician and Union Power: A Case Study of the American Federation of Musicians Robert A. Gorman Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Robert A. Gorman, The Recording Musician and Union Power: A Case Study of the American Federation of Musicians, 37 SW L.J. 697 (1983) https://scholar.smu.edu/smulr/vol37/iss4/1 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. THE RECORDING MUSICIAN AND UNION POWER: A CASE STUDY OF THE AMERICAN FEDERATION OF MUSICIANS by Robert A. Gorman * CONTENTS Page I. THE RISE OF RECORDED MUSIC AND OF JAMES C. PETRILLO .................................................. 699 II. THE 1942 RECORDING BAN AND THE CREATION OF THE RECORDING AND TRANSCRIPTION FUND ................... 705 III. UNION ATTEMPTS TO INCREASE RADIO EMPLOYMENT, AND THE LEA A CT .............................................. 709 IV. THE TAFT-HARTLEY ACT, THE RECORDING BAN OF 1948, AND THE CREATION OF THE MUSIC PERFORMANCE TRUST F UN D S ..................................................... 722 V. THE STATE OF THE ENTERTAINMENT INDUSTRIES, 1945- 1955 ....................................................... 728 VI. THE TRUST FUNDS IN 1954-1955, AND THE APPEAL OF L OCAL 47 .................................................. 734 VII. THE REVOLT WITHIN LOCAL 47 ........................... 741 VIII. THE TRUST FUND HEARINGS OF 1956 ..................... 749 * A.B., LL.B., Harvard University. Professor of Law, University of Pennsylvania. This Article is a revised and updated version of a study prepared at the request of the Copyright Office and published in a volume of hearings on performers' rights. See SUB- COMM. ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE, OF THE HOUSE COMM. ON THE JUDICIARY, 95TH CONG., 2D SESSION, PERFORMANCE RIGHTS IN SOUND RECORDINGS (Comm. Print 1978). In addition to the books, articles and other printed documents cited herein, this Article draws very heavily upon interviews (most of them conducted in 1977) with several persons, whom I would like to thank: Robert H. Crothers, Executive Assistant to the President, American Federation of Musicians; Henry Kaiser, AF of M General Counsel; Martin A. Paulson, Trustee of the Music Performance Trust Funds; Sanford I. (Bud) Wolff, Morton Becker, and John C. Hall, Jr., of the American Federation of Radio and Television Artists; and, most of all, Cecil F. Read, one of the principal characters in this Article, who provided time, documents and an extraordinary memory, and without whose good-natured and painstaking cooperation this Article could not have been written. A special word of thanks is due Barbara Ringer, who as Register of Copyrights identified the historical episode recounted here as worthy of detailed treatment and as likely to illuminate the debate surrounding the need for copyright protection of per- formers. Finally, I wish to thank Professor Matthew W. Finkin of Southern Methodist Law School, who encouraged me to seek publication in a worthy Law Journal. SO UTHWESTERN LAW JO URNAL [Vol. 37 IX. THE TRUST FUND LAWSUITS ............................... 753 X. THE RISE OF THE MUSICIANS GUILD AND THE NEW REGIME IN THE AFM ...................................... 760 XI. THE SETTLEMENT OF THE TRUST FUND LAWSUITS ......... 768 XII. THE RECONCILIATION OF THE FEDERATION AND THE GUILD, AND THE NEW AFM LABOR AGREEMENTS ......... 773 XIII. THE MUSIC PERFORMANCE TRUST FUNDS TODAY ......... 780 XIV. CONCLUSION ................... ........................... 783 APPENDIX: THE LEA ACT OF 1946 ......................... 785 OR nearly half a century, our national laws dealing with the em- ployment relationship have either granted directly certain bene- fits-such as a minimum wage, a safe place to work, retirement benefits, and protection against discrimination on the basis of race or sex- or have left these benefits to be secured through the play of economic forces known as collective bargaining. There have been efforts over rough- ly the same period of time to grant, by action of Congress, compensation to performers whose performances have been captured on film or tape or phonograph record and then re-played by others for commercial profit. All such efforts have thus far failed. The Copyright Act of 1976' has no provisions for "performers' rights" in recorded music or recorded speech, as distinguished from copyright in the musical composition or literary work being rendered. Labor organizations representing performers-in- strumental musicians, singers and actors-have therefore attempted to se- cure such performers' rights through the private mechanism of collective bargaining. So long as no mechanical means existed for recording and recreating such performances, there was no concern about such performers' rights or attendant royalties. Once, however, the inventive genius of such persons as Thomas Edison had produced the motion picture and the phonograph record, a person's performance could be played far away, and played often. One obvious consequence was the very serious threat to that per- former's employment opportunities, as well as to the employment of other performers for whose services the recording could be substituted. Another consequence was the belief that, whether or not the performer's employ- ment was threatened, the performer should receive compensation when the performance was rendered from the recording, particularly when others reaped commercial benefits from the performer's talents. One group of performers for whom these problems have been acute are the instrumental musicians, who perform not only live but also on phono- graph records and tapes, on filmed television programs and on motion pic- ture soundtracks. These musicians are represented by the American 1. 17 U.S.C. §§ 101-810 (Supp. V 1981). 1983] AMERICAN FEDER4TION OF MUSICIANS Federation of Musicians, which periodically negotiates labor agreements with employers in the various entertainment industries. There are, for ex- ample, separate contracts covering wages and working conditions for in- strumental musicians working for the manufacturers of phonograph records, for the producers of television films, and for the producers of so- called theatrical motion pictures. The re-use of the "fixed" performances of musicians, generically referred to here as "recordings," has generated a conflict of interests between two constituencies within the union. One group consists of those who perform on these recordings. These persons hear the recordings replayed for commercial profit--on radio broadcasts, jukeboxes, wired-music services, or television broadcasts-and naturally wish to share in that profit, since their talents have contributed to it. The other group of affected musicians is that which has been ousted by the use of recorded music. These musicians would otherwise be asked to perform live-on radio and television programs, in theatres and nightclubs, in dancehalls, restaurants and hotels. This latter group reasonably feels that the recording musicians are responsible for their displacement, and that some of the profits from the commercial exploitation of recorded music should inure to the benefit of those whom that music has displaced. There have been insistent pressures within the American Federation of Musicians to bargain not so much for performers' rights and performance royalties, but rather for the protection of the predominant segment of the membership that does not record for the phonograph record, motion pic- ture, or television industries. These pressures retarded Federation en- dorsement of performers' rights in their collective bargaining agreements. It took what has been characterized as a "revolt" within the membership of the AFM, occurring in the late 1950s, to move the Federation leaders to a bargaining policy more protective of the interests of the recording musi- cians. This evolution (or revolution) in the philosophy and bargaining policy of the American Federation of Musicians is the subject of this Article. 2 I. THE RISE OF RECORDED Music AND OF JAMES C. PETRILLO The phonograph, invented in 1877 by Thomas A. Edison, became a practicable device for home enjoyment between 1896 and 1900. Through technological improvements leading to greater fidelity of sound, orchestral recording became a reality in 1913, supplementing the emphasis in the pre- ceding decade upon vocal performances, most notably those of Enrico Caruso. At first the phonograph record created more employment oppor- tunities for instrumental musicians than it displaced. It was not until the 2. Most of the factual material recounted in this section and the two following sections is based upon two very thorough and useful works: R. LEITER, THE MUSICIANS AND PETRILLO (1953); and Countryman, The Organized Musicians (pts. I & 2), 16 U. CHI. L. REV. 56 (1948), 16 U. CHI. L. REV. 239 (1949). A less detailed, but still helpful, treatment of these facts and also of the origin and operations of the Music Performance Trust Funds, is to be found in ch. III of T. KENNEDY, AUTOMATION FUNDS AND DISPLACED WORKERS (1962). SOUTHWESTERN L4 JOURNAL [Vol. 37 1930s that the competition of records with live musicians became serious, as radio broadcasters came to rely extensively upon the playing of such records over the air.