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37–011 PDF 2007

ENSURING ARTISTS FAIR COMPENSATION: UPDATING THE PERFORMANCE RIGHT AND PLATFORM PARITY FOR THE 21ST CENTURY

HEARING

BEFORE THE

SUBCOMMITTEE ON COURTS, THE INTERNET, 

AND INTELLECTUAL PROPERTY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

JULY 31, 2007

Serial No. 110–49

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

HOWARD L. BERMAN, California, Chairman 

JOHN CONYERS, JR., Michigan 

RICK BOUCHER, Virginia 

ROBERT WEXLER, Florida 

MELVIN L. WATT, North Carolina 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BRAD SHERMAN, California 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ZOE LOFGREN, California 

BETTY SUTTON, Ohio 

HOWARD COBLE, North Carolina 

TOM FEENEY, Florida 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

SHANNA WINTERS, Chief Counsel 

BLAINE MERRITT, Minority Counsel 

(III)

C O N T E N T S 

JULY 31, 2007

Page 

OPENING STATEMENT 

The Honorable Howard L. Berman, a Representative in Congress from the 

State of California, and Chairman, Subcommittee on Courts, the Internet, 

and Intellectual Property .................................................................................... 1

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on Courts, the Internet, and Intellectual Property .................. 3

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Ranking Member, Committee on the Judiciary ......................... 4

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Ranking Member, Subcommittee on Courts, the 

Internet, and Intellectual Property .................................................................... 5

The Honorable Darrell Issa, a Representative in Congress from the State 

of California, and Member, Subcommittee on Courts, the Internet, and 

Intellectual Property ............................................................................................ 7

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Member, Subcommittee on Courts, the Internet, and 

Intellectual Property ............................................................................................ 8

The Honorable Zoe Lofgren, a Representative in Congress from the State 

of California, and Member, Subcommittee on Courts, the Internet, and 

Intellectual Property ............................................................................................ 9

The Honorable Adam B. Schiff, a Representative in Congress from the State 

of California, and Member, Subcommittee on Courts, the Internet, and 

Intellectual Property ............................................................................................ 10

WITNESSES 

The Honorable Paul Hodes, a Representative in Congress from the State 

of New Hampshire 

Oral Testimony ..................................................................................................... 11

Prepared Statement ............................................................................................. 13

Ms. Marybeth Peters, Register of Copyrights, U.S. Copyright Office, Washington, DC 

Oral Testimony ..................................................................................................... 13

Prepared Statement ............................................................................................. 16

Ms. Judy Collins, Recording Artist 

Oral Testimony ..................................................................................................... 31

Prepared Statement ............................................................................................. 34

Mr. Charles M. Warfield, Jr., President and Chief Operating Officer, ICBC 

Broadcast Holding, Inc., New York, NY 

Oral Testimony ..................................................................................................... 39

Prepared Statement ............................................................................................. 41

Mr. Sam Moore, Recording Artist 

Oral Testimony ..................................................................................................... 91

Prepared Statement ............................................................................................. 93

(1)

ENSURING ARTISTS FAIR COMPENSATION: 

UPDATING THE PERFORMANCE RIGHT AND 

PLATFORM PARITY FOR THE 21ST CENTURY 

TUESDAY, JULY 31, 2007

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, THE INTERNET, 

AND INTELLECTUAL PROPERTY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 10:08 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Howard 

Berman (Chairman of the Subcommittee) presiding. 

Present: Representatives Berman, Conyers, Watt, Jackson Lee, 

Cohen, Johnson, Schiff, Lofgren, Coble, Feeney, Smith, Goodlatte, 

Cannon, Chabot, Keller, Issa, and Pence. 

Mr. BERMAN. The hearing of the Subcommittee on Courts, the 

Internet, and Intellectual Property will come to order. 

And I would like to begin by welcoming everyone to this hearing, 

which is entitled, ‘‘Ensuring Artists Fair Compensation: Updating 

the Performance Right and Platform Parity for the 21st Century.’’

I would like to welcome our distinguished panel of witnesses who 

each have a personal story and a unique perspective about the performance rights issue. In addition, I would like to welcome back 

Marybeth Peters, who remains a tremendously valuable resource to 

this Subcommittee. 

I have wanted to hold this hearing for a very long time, not only 

because of my constituents, but because as a policy matter it is 

time for Congress to re-evaluate the limitations of the current performance right for sound recordings. 

I have supported the expansion of the performance right for over 

20 years, with two caveats. One is that, by extending this right, it 

does not diminish the rights and revenues of the creators of musical works. And secondly, that terrestrial broadcasters large and 

small remain a viable source of music. 

Over time, the Copyright Act has provided protection for various 

types of works in a piecemeal fashion. As early as 1909, Congress 

recognized the right in the musical composition. Over 70 years 

later, Congress provided limited protection for sound recordings. 

The copyright system is complex for it applies to multiple types 

of works, each entitled to multiple but separate rights. Moreover, 

each work can be utilized on multiple platforms, each of which has 

a different set of rules. 

2

Some rights are exclusive and provide the copyright owner the 

ability to negotiate freely in the marketplace. Some are constrained 

by a compulsory license, which entitles users to access the work 

without permission, providing that they pay the set rates and adhere to specific conditions. Some rights are even further limited by 

providing users an exemption from getting permission or providing 

payment for use of the work. This is the last category which is 

most troublesome from the perspective of a copyright holder. 

If Congress were writing the statute from scratch, it would probably not look the way it does. As time passes, it is incumbent on 

Congress to re-evaluate the various provisions of the licensing 

structure to see how markets or businesses have changed, and 

whether it is time to reform the law. 

Currently, section 114 provides a compulsory license to publicly 

perform a sound recording where there is a digital audio transmission. Terrestrial broadcasters, however, aren’t required to pay 

a royalty for their transmissions. They enjoy an exemption from 

the digital performance right. 

Historically, the broadcasters have argued that the exemption is 

appropriate because of the symbiotic relationship that exists between the over-the-air airplay on radio and the promotion of the 

music leading to future sales. To a certain extent, the existence of 

payola was evidence of this idea. 

Furthermore, the broadcasters suggest that to incur a further requirement of compensation for sound recordings to artists and musicians, that is tantamount to a performance tax. 

Finally, there is concern as to how smaller broadcasters will survive if required to pay it. 

I am sure we will hear cogent arguments from our witnesses 

today about the history of the exemption for broadcasters and the 

effect of providing a performance right. However, I would like to 

initially engage on a number of these arguments and the primary 

question: Is there justification today for this exemption given the 

number of outlets for music and how consumers acquire it? 

First, Rights parity: Regardless of whether there remains a symbiotic relationship and whether, in fact, airplay constitutes promotion or substitution, there is an equity argument that has been 

consistently ignored. Performers and musicians as creators should 

be entitled to control use and at least receive revenue for their 

works. That Patsy Cline’s estate is not compensated for the overthe-air performance of her rendition of ‘‘Crazy’’ seems crazy. 

In addition, my notion is that removal of a Government compulsion for labels, artists, and musicians to provide something for 

free—that repeal to the exemption removal—removal of that compulsion is not a tax. In fact, if anything, the Government’s provision of free spectrum to radio stations is a tax to benefit broadcasters imposed on U.S. taxpayers, who pay for it. 

Platform parity: Nowhere in the past has there been more engaging technological platforms which offer music to consumers at almost any time in any format. Especially with the rollout of highdefinition radio, which will provide more choice, as it becomes 

harder to justify an exemption for any one platform. Satellite, 

Internet and cable all provide and promote music to their listeners, 

yet all pay fair compensation to artists and musicians. 

3

Then there is international parity. Because America does not 

have an adequate performance right, we disadvantage our own creators because they can’t receive foreign royalties. In many countries, between 20 and 50 percent of the music played abroad is 

American made. And because of lack of reciprocity, we are denying 

our creators millions of dollars in revenue. 

As we work toward crafting a bill, I take note of at least two considerations. 

One is that we need to ensure that songwriters are not adversely 

affected by the elimination of the broadcast exemption. I would 

note, however, in countries where there is a performance right for 

sound recordings, as well as a performance right for musical compositions, there has been no decrease in the royalties to owners of 

musical composition. In fact, the royalties have grown over time, as 

have royalties for performers and sound recording owners. 

Furthermore, I am open to a special consideration for small 

broadcasters. 

Just one last note. Because I have heard from business establishments and others, let me start out today’s hearing by saying that 

this Subcommittee’s examination of the performance right is limited to re-evaluating the current exemption and the compulsory license for terrestrial broadcast radio. We are not considering the extension of a full performance right for sound recordings like the one 

afforded musical works. 

Thus, restaurants, bars, establishments, venues and others who 

pay performance royalties to songwriters and music publishers 

would not be affected. Rather, because there is a special exemption 

in the current compulsory license for radio services that benefits 

only terrestrial radio over other types of radio, the question is 

whether circumstances have changed so that it is now time to reconsider that particular exemption. 

I now have the great pleasure of introducing my friend and 

Ranking Member. But before I do that, I am going to introduce, if 

he doesn’t mind, because the Chairman of the Committee has to go 

to the floor, our distinguished Chair. All right, what we are doing 

is we are going to recognize the Chair, and then the Ranking Member of the full Committee and then the Ranking Member of the 

Subcommittee. 

If I had known this before I started talking, I might have done 

it before I went ahead. 

But, Mr. Conyers, you are recognized. [Laughter.] 

Chairman CONYERS. Thank you, my good friend. 

I am delighted to have heard you because now that we have 

heard everything on the subject, we can just welcome our witnesses. And that is all I want to do today. 

And I have to stay here from the floor, we have a lobbying bill 

up. We have been working on this package. And my good friend 

Howard Coble and I are both due on the floor. Lamar Smith is due 

on the floor, as well. 

All I wanted to do is say hello to Sam Moore. And let him know 

that I will be seeing Aretha Franklin in Detroit when the session 

ends, and I will be giving her your good regards. 

And, Judy Collins, one of our favorite artists, we are so happy 

to see you today, my dear. 

4

It is great for you all to be here. 

Let me just say that it is very important that we realize how unfair the system is to artists and other music platforms as artists, 

under the current law. They are not compensated when their songs 

are played on broadcast radio. And, you know, that is my big thing 

to examine here today. 

Satellite pays. The Internet pays. Broadcast still hasn’t come 

around. 

Now, there was a time when just being played on the radio 

would do it. That would make you. But those days, as everybody 

here knows, are not the same anymore. 

We have so many different venues. And it is in this sense that 

songwriters who receive compensation regardless of which platform 

performs their songs, artists are only paid when their songs are 

played over the Internet, on satellite radio, or cable. 

I just want to conclude—and I will put in the record my remarks—is that I think we can work out some kind of compensation 

package, Chairman Berman, without harming the songwriters. And 

they have had to come through a long period of time for them to 

be compensated. 

So, over the years, it has been debated whether Congress should 

amend current law to eliminate the specific exemption for broadcasters from the duty of paying the performance royalty. And we 

should all be mindful of the potential impact this right would have 

on songwriters who currently are paid every time their songs are 

played on radio. 

And so, I am going to review this testimony carefully. 

I am so glad that all of you are here today. It is great to see all 

those who have worked so hard. 

And as I look all over the audience, I see a lot of people connected to this entertainment industry here today, not excluding 

people who have worked on the Hill for so many years. [Laughter.] 

And so, maybe there is a connection between what I am going 

to do on the floor and what is going on here. Who knows? [Laughter.] 

Thank you for this opportunity, Mr. Chairman. 

Mr. BERMAN. If, when you come back, half the audience is gone, 

we will know you—— [Laughter.] 

I am now pleased to recognize the Ranking Member of the full 

Committee, who also has to go to the floor on the same piece of legislation. The gentleman from Texas, our Ranking Member, Lamar 

Smith? 

Mr. SMITH. Thank you, Mr. Chairman. 

I also want to thank Mr. Coble for deferring to me and yielding 

me the time to go ahead of him in making an opening statement. 

And, has already been mentioned, let me apologize to our witnesses today that, unfortunately, I do need to go to the floor, along 

with the Chairman, to manage a certain lobbying reform bill. So 

I will not be able to stay as I would like to. 

Clearly, though, it is obvious that there is a lot of interest in the 

subject today and deservedly so. 

Mr. Chairman, thank you for convening today’s oversight hearing 

on music licensing and the proposal to expand the performance royalty to cover over-the-air radio broadcast of sound recordings. 

5

With the Subcommittee’s high-profile emphasis on advancing 

patent reform in this Congress, a casual observer could easily presume that copyright issues in general, and music issues in particular, have not received much attention so far. That conclusion 

would be wrong. 

This oversight hearing marks the third copyright-focused hearing 

in the IP Subcommittee this year to focus on the protection and 

promotion of the music industry and the rights of recording artists 

and composers. 

Mr. Chairman, you and I have spent a great deal of time, both 

personal time and public time, over the past several Congresses 

working together in a bipartisan effort to streamline, modernize 

and improve the music licensing process, with the shared goal of 

adapting the compulsory license process to the digital age. Over 

this time, we have made tremendous progress in identifying and 

narrowing many of the process-related issues. 

But the goal of enacting a public law and actually implementing 

some of our agreed reforms remains. I continue to believe this task 

can be achieved in this Congress. 

Unlike our effort to reform the process for clearing the legal 

rights to use copyrighted musical works and sound recordings and 

adjudicating the royalties to be paid to recording artists and copyright owners, the subject of today’s hearing is one that affects the 

substantive rights of these parties, as well as the settled expectations of those in the traditional radio broadcasting industry. 

The goal of enacting a full statutory performance right for sound 

recordings is one that has been sought by performing artists and 

the recording industry for many years. It has only been 12 years 

since Congress first provided a limited public performance right in 

sound recordings with the enactment of the Digital Performance 

Right in Sound Recordings Act, a law that made available a compulsory license for sound recordings to non-interactive cable and 

satellite services. 

But in that span of a dozen years, recording artists, along with 

the music and broadcasting industries, have confronted many unanticipated challenges and experienced seismic changes. 

Competition and technological advances have generated both 

positive and negative aspects for all. The transition to high-definition radio holds great promise for broadcasters. In contrast, the 

trend among young consumers to download the music they want—

sometimes legally, but all too often illegally—rather than purchase 

CDs or other physical media, holds great peril for recording artists 

and record labels. 

I consider this subject to be one whose significance should not be 

underestimated, and I hope we will address it this year. 

Mr. Chairman, I will yield back the balance of my time. 

Mr. BERMAN. Thank you very much, Mr. Smith. 

And now, the Ranking Member of the Subcommittee, who, when 

he was Chairman, we were delving into this issue as well, Mr. 

Howard Coble of North Carolina. 

Mr. COBLE. Thank you, Mr. Chairman. 

And I want to repeat what the others have said. It is good to 

have this distinguished panel before us. 

6

And I would be remiss if I did not recognize, especially, our distinguished Register. Good to have you back, Marybeth. 

Mr. Chairman, the stated purpose of today’s hearing is to begin 

an examination of concerns that relate to proposals to remove the 

exemption for terrestrial radio broadcast in the copyright compulsory license for public performances. What that means in layman’s 

terms is the Subcommittee intends to consider whether the copyright law should be amended to require over-the-air broadcasters 

to pay compensation directly to recording artists when their songs 

are played over the radio. 

If the testimony of the two recording artists who are with us 

today represents the views of other musicians and performers, then 

it seems there is a fairly strong consensus in that community that 

the law should be so amended. 

Indeed, the Copyright Office and the record labels also share that 

perspective, asserting that a principled and consistent application 

of the copyright law requires that audio transmissions of sound recordings ought to benefit from the same performance right that has 

been extended to music publishers and composers for nearly a century. 

It is not surprising that the broadcasters who would be statutorily obliged to pay such a royalty, and who are represented by the 

National Association of Broadcasters, considers such an amendment to be an anathema. Their view is that Congress should leave 

well enough alone; that is, unless the Congress wishes to amend 

the compulsory copyright license to enable broadcasters to stream 

their signals over the Internet without paying a performance royalty to performers, or to lighten the regulatory and reporting requirements required when a broadcaster chooses to simulcast its 

signals over the Web. 

Proponents, Mr. Chairman, appear to rely upon three main arguments in asserting that the over-the-air broadcast exemption 

should be jettisoned. 

One, the exemption was never justified as a matter of copyright 

law, but today serves as an anachronism and a glaring inequity. 

Two, the copyright law requires cable, satellite and Internet 

radio services to pay performance royalties to both composers and 

recording artists. Therefore, nondiscrimination and platform parity 

demand that traditional radio broadcasters should also pay a proportionate share. 

And finally, the United States is alone among free market economic powers in denying a performance right in terrestrial radio 

broadcasts to artists and performers. 

Among other things, the broadcasters conversely respond they already pay $450 million a year in performance royalties to composers and music publishers. 

They contend over-the-air radio has a symbiotic relationship with 

recording artists who benefit from free promotional airplay, which 

in turn, spurs demand for product sales, touring promotions and 

souvenir revenue. 

Traditional radio formats, which do not include multi-channel offerings of various music formats, do not pose a serious threat to the 

distribution of sound recordings, they contend. 

7

Broadcasters are subject to numerous Commerce Committee and 

FCC-imposed statutory and regulatory obligations that justify exemption from the ordinary application of the copyright law. 

And finally, the United States recording and broadcasting industries are unique, and policies implemented elsewhere are not appropriate for United States conditions. 

Believe it or not, this summary barely touches the surface of the 

strongly held views that will soon be articulated by the parties involved in this debate. 

As the Subcommittee embarks on this examination, Mr. Chairman, I am mindful of other interests not directly represented here 

today. For instance, the public benefits enormously when Congress 

exercises, in an appropriate manner, the authority granted in article I, section 8 of the Constitution, which calls upon us to promote 

creativity and expression by securing for limited times to authors 

the exclusive right to their writings. 

In addition, I think it is important to bear in mind the interests 

of other copyright owners, which should not be diminished by any 

prospective changes in the law. 

Mr. Chairman, in closing, I will simply note that I look forward 

to learning more about the intricacies of this debate, and by observing that I have friends on both sides of this issue. All of you I embrace very warmly. 

I recall, Mr. Chairman, I think one of the first hearings I attended as a freshman Member of Congress, I heard a Member in 

this very hearing room conclude his remarks with these words. He 

said: I have friends on both issues of this subject, and I want to 

make it perfectly clear I am with my friends. [Laughter.] 

If it were only that easy, Mr. Chairman. I hope, at the day’s end, 

that no one will feel rejected, that all will feel embraced, and that 

we can get something with which everyone can live. 

And, finally, Mr. Chairman, I have a Coast Guard hearing that 

I may have to attend, with your permission, later on. And I don’t 

want my abrupt departure to be indicating that I am not interested 

in this very, very important issue. 

And I yield back, Mr. Chairman. 

Mr. BERMAN. Well, thank you very much. 

Hopefully, you will get to the panel as soon as possible, but given 

that I don’t really have clean hands, having spent at least 7 or so 

minutes with an opening statement, are there any other Members 

who want to make comments at this time? 

Mr. Issa? 

Mr. ISSA. Mr. Chairman, there wouldn’t be any possibility, any 

possibility that it wouldn’t be appropriate to make just a few comments here today, because I think what you are doing here is so 

monumental. 

In my 7 years in Congress, this is the first time that, in a noifs-ands-or-buts way, it has been made clear that the status quo 

will no longer be acceptable. Although this is a hearing and not a 

markup, I think we all understand here today that the broadcasters are on notice that we intend to look at a reorganization of 

this. 

I certainly hope that we have additional follow-up hearings. I 

certainly would like to see a panel that was all made up of broadVerDate 0ct 09 2002 14:40 Nov 27, 2007 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\073107\37011.000 HJUD1 PsN: 37011
8

casters and broadcaster-related people, giving us sort of their view, 

in addition to what we are going to hear today, of how they are 

going to deal in a more balanced way. 

Certainly, as Mr. Coble said, it is very clear that finding a common platform where broadcast and simulcast can be dealt with 

fairly should be on the table. 

I believe that, in fact, the broadcasters should embrace this as 

an opportunity to create transparency between what they presently 

do on a terrestrial basis and the other ventures that these companies are now expanding into. 

I think the fact that high-definition and digital is about to go to 

high-power, high-definition digital, it is very clear that we are 

going to need to make this move in a timely fashion, because what 

has been coming out in the satellite industry for a number of years 

is clearly going to be coming out of our radios in our cars as we 

drive. 

Additionally, digital recording devices are going to be undoubtedly made by the consumer electronics industry to record on-air 

broadcasts as it has never been recorded before: in digital format, 

in a sound quality that very much will be, for most people’s ears, 

the equivalent of CDs. 

I certainly also think that we in Congress have long ago lost our 

clean hands on the concept that broadcasters are promoting. 

It is very clear that perhaps Judy Collins or Sam Moore, a few 

years ago, in the earlier part of your careers, might well have 

signed away for 3, 5 or 10 years the rights to receive any royalties 

from their performance, in return for a guarantee that they would 

be promoted when their songs were not so—or their music—was 

not so well-regarded. 

It is also clear that artists who are deceased—their estates today 

cannot say we are going to perform. We are not going to go on the 

road. 

Actually, Mr. Moore was here previously talking about when you 

are no longer on the road but somebody else is saying they are you. 

And we have already dealt with some of those. 

It is very, very clear, though, that we need to create a recognition 

that the performing artist has a right. The broadcaster must show 

any offset to that right. 

That is why, not only am I thrilled that you are holding this 

hearing today, but I am encouraging that we thoughtfully go 

through listening to all parties, because I think the change we 

make is a change that we make for the rest of the world who today 

provide a revenue stream for performing artists, while we don’t. If 

we are going to make a change, let us make a change we are all 

proud of. 

And with that, I yield back. 

Mr. BERMAN. I thank the gentleman. 

And the gentleman from Tennessee. 

Mr. COHEN. Thank you. Thank you very much, Mr. Chairman. 

‘‘The gentleman from Tennessee.’’ I feel like Johnny Cash or 

something like that. [Laughter.] 

But I just wanted to——

Mr. BERMAN. Another guy with a predisposition, huh? [Laughter.] 

9

Mr. COHEN. Well, I just wanted to testify what your voices have 

meant to me. 

What, I guess, the system is now, if you are the songwriter, 

which is a great talent—composer—you get paid, but if you sing 

and perform, you don’t. 

And our performers we have out here—Ms. Collins, I have listened to a lot of your music over the years, and it has meant a lot 

to me. The writers were brilliant, but without your voice, I 

wouldn’t have been listening to it. 

And the idea that you are getting promoted, and that they are 

doing you some favor as a by-product, I mean, it should be B-UY product. 

With that logic, they would never pay Muhammad Ali—or 

wouldn’t have paid him—to show his fights, because they were promoting him so more people would want to go out to the stadium 

to see him fight or whatever. And they could just show it for free 

on free TV. ‘‘Oh, we are promoting you.’’

And the same thing for baseball and football and basketball: We 

shouldn’t have to pay for showing the Lakers and Kobe. We are 

giving everybody the chance to see Kobe, and then they will go to 

the arena and see Kobe. 

That is absurd. And they have just kind of gotten a free ride over 

the years. 

As great as all the songwriters were, if it weren’t for Frank Sinatra, people would not have listened to those songs. And Frank 

Sinatra should have been compensated as the performers are, just 

like the songwriters. 

So, as the gentleman from Tennessee—and from Memphis, in 

particular—I am here with the performers and the songwriters and 

artistic artists being paid for what they do to make our lives better. 

And I thank each of you. 

Mr. BERMAN. I thank the gentleman. 

And now the gentlelady from California is recognized. 

Ms. LOFGREN. Thank you, Mr. Chairman. I will be very brief. 

I think this is a very useful hearing, and I thank the Chairman 

for scheduling it. I think the concept of how we level the playing 

field in the marketplace is important, as well as the need to make 

sure that artists get compensated. 

And so I am thrilled that we have two artists who I greatly admire that we can listen to. I know that we will not touch on it 

today, but as we look at this issue of equity among the platforms, 

I think we need to look at not just who gets paid, but how much. 

We know that in the Internet radio environment right now—and 

the Chairman, I know, is well-aware of this—there are small Internet radios that are going to be charged 300 percent of their revenue. That is not going to work for them. I mean, they are niche 

stations—Beethoven all the time, and the like—so at some point, 

as we look at making sure artists get paid as they should, we need 

to figure out how we have equity across all platforms in all ways. 

And I look forward to being a part of that debate. 

And I thank the Chairman for his leadership on this issue and 

for this hearing today. And I yield back. 

Mr. BERMAN. I thank the gentlelady. 

And Mr. Schiff from California? 

10

Mr. SCHIFF. Thank you, Mr. Chairman. I am going to be very 

brief, as well. 

It is an honor to have you with us here today. And, as you can 

tell, we are all fans, and we are just delighted to be in your presence. 

I appreciate the Chairman calling this Committee hearing and, 

not only on this fairly specific issue, but on the broader issue of reform in this area. 

This is one of those areas of law, I think, of which there are 

many in national security and a whole variety of other issues 

where if we were starting today drafting the rules of the road, we 

would never draft a system that looked anything like this. But we 

are where we are, and we have to try to either improve it or junk 

it. 

And I just appreciate our Chairman’s tenacity in this wildly complex area. 

And it is nice, actually, today to have a very discrete, very manageable, very understandable issue. And I am very much looking 

forward to hearing your testimony. 

Thank you, Mr. Chairman. 

Mr. BERMAN. Thank you. 

And now we will go to the panel unless—we will do that. 

Our first witness, our only colleague who sought to testify and 

someone who based on his unique background belongs at the panel 

table, is Congressman Paul Hodes, who represents New Hampshire’s 2nd Congressional District. He is president of the freshman 

congressional class of 2006. 

Prior to entering Congress, Congressman Hodes was a partner at 

Shaheen & Gordon. He is well-known for his musical talents on the 

guitar. He and his wife, Peggo Hodes, have recorded several albums together that have received critical acclaim from the Parents’ 

Choice Awards. The duo were invited to perform at the White 

House in 1996, and they continue to perform at many charity fundraising events, not to mention our caucus. 

Good to have you here, Paul. 

Marybeth Peters—she has been referenced before. She is the 

United States register of copyrights, and with almost 40 years of 

experience at the U.S. Copyright Office, she is one of the nation’s 

leading experts on copyright law. A graduate of George Washington 

University’s School of Law, Ms. Peters has lectured on copyright 

law at Catholic University’s Columbus School of Law, as well as 

Georgetown University Law Center. She has received numerous 

awards recognizing her distinguished career, and also served as a 

consultant on copyright law to the World Intellectual Property Organization in Geneva, Switzerland. 

Like many of my colleagues, I am a great fan of our next witness. 

Judy Collins has inspired millions across the globe with her music. 

Her rendition of ‘‘Send in the Clowns’’ won the Grammy Award for 

song of the year, and her version of ‘‘Both Sides Now’’ is part of 

the Grammy’s Hall of Fame. Judy Collins continues to enthrall audiences with her voice, her passion, and her grace. 

Charles Warfield Jr.: president and chief operating officer of 

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cluding serving as vice president and general manager of WRKSFM New York, which was named the most listened to radio station 

in America. In addition to his work in broadcasting, Mr. Warfield 

is active with the American Red Cross, the United Negro College 

Fund, and a Partnership for a Drug-Free Greater New York, 

among other organizations. 

Mr. Warfield, it is good to have you here today. 

And, finally, Sam Moore, who has been called the greatest living 

soul singer and is perhaps best known for his performance of ‘‘Soul 

Man’’ and ‘‘Hold On I’m Comin’’’ as part of the soul and R&B duo 

Sam and Dave. Most recently, in 2006, Sam Moore released the 

critically acclaimed solo album entitled ‘‘Overnight Sensational,’’ 

which received a Grammy nomination for the song, ‘‘You Are So 

Beautiful.’’ His music continues to thrill audiences worldwide, and 

he has been an inspiration to a generation of artists. 

All of your written statements will be made part of the record. 

I would ask you to summarize your testimony in 5 minutes or less. 

There will be a timing light at your table, and when 1 minute 

remains, that light will switch from green to yellow and then red 

when the 5 minutes are up. And we would appreciate you summing 

up at that point. And then we will have time to talk to you further 

through questions and dialogue. 

We welcome you all. 

And, Congressman Hodes, why don’t you begin? 

TESTIMONY OF THE HONORABLE PAUL HODES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW 

HAMPSHIRE 

Mr. HODES. Thank you, Mr. Chairman and Ranking Member 

Coble, Members of the Subcommittee. I really appreciate the opportunity to testify at this hearing on updating the performance right 

and platform parity in the 21st century. I am honored beyond description to be on a panel with the distinguished artists who are 

sitting with me, as well as the members of the industry and the 

register of copyrights for the United States. 

You know, I was taught as a musician that it all begins with the 

song. And I have written numbers of songs, which I have published 

at a small publishing company. I am a member of ASCAP. And I 

have also performed other people’s songs and recorded other people’s songs. 

And what we are really dealing here today with is something 

very fundamental. While it all begins with the song, the song does 

not come alive without the performance. Without the performance 

on a recording of a song, that song might as well be dust. It might 

as well sit on a piece of paper in terms of listening to that song. 

Mr. Coble talked about the argument that the exemption is an 

anachronism. And I think about the way the music business has 

changed just in my lifetime. 

I first recorded in the mid-1980’s in a studio—I was lucky enough 

to go into a great studio—and when I was done with that recording, it came out on a big, round record. It was vinyl. 

There was no Internet radio. There was no satellite. There was 

no cable. And I was desperate to try to get some radio play for that 

vinyl record. 

12

And over the years, there has been a revolution in the way we 

record and distribute music. 

Today, by contrast, I have a studio in my home with digital 

equipment. It goes out over the Internet. It is transmitted digitally 

by cable, by satellite. 

I am pleased to say that I got a check the other day from SoundExchange for $19.58. [Laughter.] 

I am a member of the American Federation of Musicians. I am 

proud to be part of that union. 

I belong to the National Music Publishers Association. 

I am a former member of the New Hampshire State Council on 

the Arts. As a councilor, I have been chairman of an art center, 

former minority shareholder in a small radio station. 

And I have really pursued music out of love, more than out of 

money. 

So in some sense, given that my wife and I have recorded six 

records, I have produced numbers of others, I think I speak for 

many of the thousands of small, independent businesses. Because 

that is what musicians are: they are small businesses who are looking for fairness and justice, and looking for ways to make a living 

through many, many different streams of income. Many, because, 

like all small businesses, they are struggling with all the issues 

that affect us today. They are on tight budgets. They have to manage their income carefully. 

I have now come to Congress, and I serve on the Oversight and 

Government Reform Committee. And I have been pleased to have 

the opportunity to investigate numerous areas of Federal policy 

that need changing. 

This area of Federal policy is one that has needed change for a 

very, very long time. I believe that what we are talking about today 

is rectifying a situation which has needed correction for more years 

than I have been alive. 

It is time for terrestrial radio to pay a performance right to performing musicians whose indispensable contribution to bringing 

the music alive needs to be recognized. 

I have worked as an entertainment lawyer, and I will just end 

with one story. 

I represented a great artist, an African-American who was born 

in Louisiana, who at a young age was taken by a manager to Florida to record a record. And when I asked him what his deal was—

because it was somebody else’s song that rose very high in the 

charts at a time when there was only radio, no Internet, no satellite, no cable—there was only radio—I asked him what his deal 

was. And he said, ‘‘I don’t remember.’’ I said, ‘‘Well, was there a 

contract?’’ He said, ‘‘Not that I know about.’’ And I said, ‘‘Have you 

ever seen any money from that fabulous song which charted really 

well?’’ He said, ‘‘Well, they paid me $50 and gave me a bottle of 

scotch.’’ [Laughter.] 

And I went and I tried to track down the deal and the contract. 

And we reached lots of dead ends. 

He had a tough life and now lives in New Hampshire and is 

making a good life for himself. On his behalf, I am here to say it 

is time to correct the injustice that was done to him for many 

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anced performance royalty, because his song was played a lot on 

the radio. 

So, on his behalf, I say it is time for fairness and justice. And 

I thank you for the opportunity to testify here today. 

[The prepared statement of Mr. Hodes follows:]

PREPARED STATEMENT OF THE HONORABLE PAUL HODES, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW HAMPSHIRE

Mr. Chairman and Members of the Subcommittee, thank you for inviting me to 

testify today at this hearing on Updating the Performance Right and Platform Parity in the 21st Century. I look forward to sharing my experience as an entertainment lawyer, proprietor of a small independent record label, a performer, producer, 

songwriter, publisher, member of the American Federation of Musicians, National 

Music Publishers Association, and American Society of Composer, Authors and Publishers, and former member of the New Hampshire State Council on the Arts. 

Most recording artists are much like the other small business owners that drive 

our nation’s economy. They have tight budgets and have to manage their income 

carefully to stay afloat. Unlike almost any other profession, artists must take advantage of every source of income available in order to stay in business. In addition 

to selling albums and performing at live concerts, this means collecting royalty payments when their songs are played on internet, cable, and satellite radio, and directed by current law. Because they don’t receive any royalty payment when their 

songs are played on air radio, these small businessmen and women are missing out 

on a large source of capital that they deserve. 

In my first term in Congress and as a Member of the House Committee of Oversight and Government Reform, I have had the opportunity to investigate a wide variety of sectors of federal policy that are outdated and in need of reform. I believe 

this sector is an area that needs new policy to meet the changing way people listen 

to music. In the last 15 years new platforms have emerged that helped small scale 

and independent artists reach new audiences in ways that were never before imagined. As these new formats grew, royalty rates were set that compensated the artists for the hard work and creativity they put into their work. However, terrestrial 

radio, a format which nearly half of all listeners still choose for their music, still 

pays no royalty to musicians. 

Not only does this market structure give an unfair advantage to AM and FM 

radio over their competitors, it also discourages aspiring musicians from contributing to the creative economy that is a vital part of our society. Royalty payments 

are an issue of fairness for thousands of American performers. I look forward to discussing these issues with the members of the Subcommittee today.

Mr. BERMAN. Thank you very much, Paul. 

Ms. Peters? 

TESTIMONY OF MARYBETH PETERS, REGISTER OF 

COPYRIGHTS, U.S. COPYRIGHT OFFICE, WASHINGTON, DC 

Ms. PETERS. Okay. Thank you. 

Mr. Chairman, Mr. Coble, Members of the Subcommittee, thank 

you for the opportunity to testify on removing the existing exemption for the public performance of sound recordings by terrestrial 

radio broadcasts. 

Sound recordings became subject to Federal copyright protection 

on February 15, 1972. In the 1960’s and 1970’s, the main issue was 

unauthorized duplication of recordings, tape piracy. And the protection given was the right to control the reproduction and distribution of recorded performances. Thus, protection was limited to that 

which was required to address the then-existing problem. 

Although there was a major push to include a performance right 

in the 1976 Copyright Act, it was not included. Instead, the register of copyrights was charged with studying the problem and delivering a report to Congress by January 3, 1978. 

14

In her 1978 report, the register recommended a performing right 

for sound recordings, saying: A performance right would bring 

sound recordings into parity with other categories of copyrightable 

subject matter. No legislation was enacted in response to the register’s plea. 

Congressional action was spurred by technologies of the early 

1990’s which made it possible to transmit sound recordings 

digitally throughout the world and allowed individuals to make 

copies of these transmissions, thereby diminishing the sale of copies—physical copies and mp3 files. 

In 1995, when Congress first established a public performance 

right, it created a very narrow right. In section 106(6) and section 

114, it was limited only to digital transmissions by interactive and 

subscription services. All other digital transmissions, including 

over-the-air broadcasts, were exempted. 

In 1998, the statutory license was broadened to specifically include non-subscription webcasts, but not over-the-air broadcasts. 

Today’s reality, as you said, is that satellite and cable radio pay, 

as well as webcasters. Broadcasters do not. 

The question before you is one of parity: parity among the users 

of sound recordings, parity among copyright owners, parity with respect to technology. The goal is leveling the playing field, but it is 

a matter of basic equity and fairness. It is also a matter of the position of the United States in the area of protection of intellectual 

property. 

To achieve equity and parity, the public performance right for 

sound recordings needs to be broadened to include all commercial 

transmissions, but especially broadcasts. 

Today, the careful balance that Congress struck in 1995 and 

1998 has been undermined by technology, new business models, as 

well as the changed relationship that we have heard about between 

radio broadcasters and performers of sound recordings. 

Broadcasters, however, continue to assert that there is a mutually-beneficial economic relationship with record companies, citing 

the promotional value of the performance of sound recordings. 

Whether there is such a relationship or not—and I tend to think 

there is not—as a matter of principle and equity, broadcasters 

should pay royalties for sound recordings they broadcast, just as 

others do. 

Historically, the record industry has been a very profitable industry, making its money in the United States from distribution of 

copies. That, coupled with the political clout of broadcasters—basically a clout that they have always enjoyed—has led to today’s situation. 

Today, however, the recording industry is hemorrhaging because 

of the reproduction and distribution rights which can no longer 

generate the revenues to support the industry. In part that is due 

to the epidemic of online piracy that we have yet to come to grips 

with and that we will never be able to control completely. In part 

it is due to technological advances that allow people to get copies 

for free. 

So broadcasting is clearly a threat, as well as a benefit. 

In this new environment, we can no longer afford the anomalous 

treatment that has been accorded to sound recordings. As works 

15

that are primarily enjoyed by means of performance, they should 

be subject to public performance rights that provide, at a minimum, compensation from those who financially benefit from their 

public performances. 

One other point: I am extremely disappointed and troubled by 

the persistent characterization of compensation for performers as a 

tax. This is especially true when broadcasters for the last 8 years 

have been seeking international protection in the form of exclusive 

right for their signals, which, according to their logic, should really 

be a broadcast tax. Of course, they have never used the word tax 

with respect to the protection they are seeking. 

I won’t go into it, because it has been covered, but there is also 

the international issue. 

In conclusion, equity and fairness require the law to be changed 

to create parity and compensation. Commercial entities who use 

sound recordings as part of their businesses should pay performers, 

producers of those recordings. Performers and producers need to be 

paid for their performances to ensure that the creativity and variety of recordings that we all enjoy continue. It is time to end this 

anomaly. 

I agree with you, Mr. Berman, that in doing this, we must ensure that songwriters and music publishers are not negatively affected. And we must ensure that small broadcasters survive. But 

we can do that through carefully structured legislation that does 

achieve the appropriate balance. 

I appreciate the opportunity to express the Copyright Office’s 

views on this subject. And I look forward to working with you and 

Mr. Coble and your staffs on correcting this long-standing imbalance in our law. 

Thank you. 

[The prepared statement of Ms. Peters follows:]

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PREPARED STATEMENT OF MARYBETH PETERS


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Mr. BERMAN. Well, thank you very much, Ms. Peters. 

And now, Judy Collins? 

TESTIMONY OF JUDY COLLINS, RECORDING ARTIST 

Ms. COLLINS. Thank you so much Mr. Chairman, Ranking Member Coble, Members of the Subcommittee, thank you for the opportunity to testify today. 

I am pleased to be here on behalf of musicFIRST Coalition and 

my more than 150 fellow founding artists and the thousands of 

working musicians and singers around the country who care deeply 

about this issue, which I do consider a glaring inequity. 

Songs have always told my story and, I hope, given me a voice 

to tell others. 

I learned the love of song from my own father, who was a fine 

singer and a sometime writer of songs. He knew the secret of hunting for the right song for his voice and taught me that the search 

for those jewels was the discipline of a singer’s life. He was in radio 

for 30 years, sang his heart out, was never paid a cent for his voice. 

I believe that musicians and artists, as well as songwriters, 

should be rewarded and awarded and paid properly for their talent 

and artistry in making the music, and deserving the right to be 

paid for their creations, whether they are performed or written 

and, much the way creators of literary and dramatic works are 

paid, to have the disparity in the equity of payment changed for 

the better. 

You know, I have had dozens of platinum-and gold-selling albums. It is nearly 50 years. I know I don’t look it, but I took Social 

Security—— [Laughter.] 

I wanted to tell you, I took Social Security this year before it 

runs out. [Laughter.] 

Mr. BERMAN. Well, don’t open up that one. [Laughter.] 

Ms. COLLINS. Well, as I said, for the most part artists are treated 

equally. There is one glaring exception in today’s music marketplace where musicians, artists and sound recording copyright owners are left behind: Terrestrial radio stations do not compensate 

artists for our performances when they play our music over the air, 

which you have heard this morning. 

For example, you remember a little song that Stephen Sondheim 

wrote. I recorded ‘‘Send in the Clowns’’ in 1975, and shortly after 

the record’s release, it became a top hit. Unfortunately, I did not 

earn a cent from radio when that song was played time and time 

again. 

In fact, I just came across a letter the other day when we were 

meeting about this conference, and I would like to read it to you, 

if I might. It says Stephen Sondheim on the top. It says March 2, 

1976. ‘‘Dear Judy: And thank you for giving me my first hit song. 

Gratefully, Stephen Sondheim.’’

Songwriters enjoy a performance right and deservedly so. Stephen Sondheim deserves every penny he makes on every song. 

Their creativity and talent should be, and is, rewarded when their 

musical composition is played on the radio. 

I have recorded songs of many, many artists—Joni Mitchell, Ian 

& Sylvia, Stephen Sondheim—and never been paid a cent. It is a 

32

privilege to have helped them make a living. I would like to do the 

same for myself with your help. 

It is only fair that the artists, background singers, and musicians 

who breathe that life in the song should also be compensated. 

I want to tell you, just sitting here with Sam, you know, I am 

thinking, ‘‘God, this is a disgrace that he has not been paid for 

playing, for his singing on the radio.’’

You know, the other countries who do this? China, Rwanda, 

Sudan, Iran. 

Don’t get me wrong. I love the radio. My father had his own 

radio program, as I said, and that is how I grew up, listening to 

radio, singing on the radio. I just don’t believe it is fair, nor has 

it ever been, that musicians and recording artists don’t get paid 

when our music is played on the radio. Patsy Cline’s heirs deserve 

to have that. 

Paid for play. Every other music platform, like satellite, cable 

and Internet radio, reward artists and musicians for our performances, and it is time radio did, too. 

As I said at the outset, I and Sam both have been very fortunate 

in our careers. We work like mad, harder than ever, as far as I 

know. 

There are lots of great artists and musicians who are still struggling to just earn a living doing what they do and get over that 

first hump of public recognition. When their music is played on the 

radio, they deserve to get paid. 

Many of my musical compatriots, like me, are on the road touring. 

I tour more than I ever did. I do 50 to 80 shows a year. And I 

have never taken a year off. 

I mean, as I said, I am 68 years old, which I was not going to 

read into this record—— [Laughter.] 

I was advised, don’t say that. I am proud of it. 

I have been able to make my living in a career of my choice. I 

should be paid. And not being paid is like a lawyer going to a party 

every day and having people say, ‘‘You want to practice a little 

law,’’ 365 days a year. [Laughter.] 

There are artists just starting out their careers. My record label, 

Wildflower Records, has many wonderful young artists on it. I 

want to see them paid for their performances on radio. 

Kenny White, for example, one of my artists on the label, is now 

on KFOG in San Francisco. He is not earning radio royalties. I was 

on KFOG years ago. I didn’t earn radio royalties either. 

Yet, when his music is played on XM satellite station the Loft, 

he earns performance royalties. 

Mr. Chairman, royalties that were held by broadcasters should 

have been my annuity, my pension. I should have been able to retire from top hits like ‘‘Amazing Grace,’’ ‘‘Both Sides Now,’’ ‘‘Someday Soon, ‘‘Chelsea Morning,’’ ‘‘Who Knows Where the Time Goes,’’ 

and ‘‘Send in the Clowns.’’

It is music that people love. It is not commercials. Our music 

sells those commercials, if you have noticed, on the radio. 

We simply believe that broadcasters should share the profit they 

earn at the expense of artists. 

Mr. Chairman, thank you for holding this hearing today. 

33

Songs have value. Singers have value. Musicians have value. We 

are asking for recognition of that value and urging you to change 

the law to right this long overdue injustice. 

And thank you so much. 

[The prepared statement of Ms. Collins follows:]

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PREPARED STATEMENT OF JUDY COLLINS


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Mr. BERMAN. Well, thank you very much. 

And now we will turn to Charles Warfield. 

TESTIMONY OF CHARLES M. WARFIELD, JR., PRESIDENT AND 

CHIEF OPERATING OFFICER, ICBC BROADCAST HOLDING, 

INC., NEW YORK, NY 

Mr. WARFIELD. Good morning, Chairman Berman, Ranking 

Member Coble and Members of the Subcommittee. And thank you 

for inviting me here today to offer the broadcaster perspective on 

the issue of performance rights for sound recordings. 

My name is Charles Warfield, and I am president and COO of 

ICBC Broadcast Holdings, serving primarily African-American 

communities in New York City; San Francisco; Columbia, South 

Carolina; and Jackson, Mississippi. And I am also testifying on behalf of the over 6,800 local radio members of the National Association of Broadcasters. 

With regard to the issue of creating a new performance royalty 

for sound recordings, which we do consider a performance tax on 

local broadcasters, NAB strongly opposes any such proposal. We 

oppose a performance tax because compensation to the record labels and artists is provided under the current system. And the effort to upset the careful balance envisioned by Congress and beneficial to all parties for the last 80 years is misguided. 

The existing model works for one very significant reason: The 

promotional value that the record labels and artists receive from 

free airplay on local radio stations drives consumers to purchase 

music. 

A survey done by Critical Mass Media shows far and away FM 

radio is the dominant medium for listening to music. In fact, 85 

percent of listeners identify FM radio as the place they first heard 

music they purchased. 

With an audience of 232 million listeners a week, there is no better way to expose and promote talent, or as Tom Biery, senior vice 

president for promotions for Warner Brothers Records said: It is 

clearly the number one way that we are getting our music exposed. 

Nothing else affects retail sales the way terrestrial radio does. 

Beyond just playing music, consider that stations give away free 

concert tickets, conduct on-air interviews with bands releasing a 

new CD, or hype a newly-discovered artist. Local radio is without 

question the engine that drives music sales. Any suggestion that 

radio play does not boost sales or actually diminishes sales runs 

counter to simple common sense. 

While it is true that the recording industry has seen its profits 

dip in this new digital world, in no way can that decline be attributed to radio; just the opposite. Local radio is free advertising for 

record labels and artists and provides the best and most direct way 

to reach consumers. 

In 1995, when Congress last examined this issue, lawmakers 

rightly considered what new digital mediums were a threat to the 

sale of music. Satellite and Internet radio, which were covered by 

the 1995 law, are services often available by subscription and both 

offer consumers true interactivity to download songs. 

40

Local radio, however, is free. There is no subscription. It is not 

interactive. And between disc jockey lead-ins and commercials, people are not stealing music from over-the-air radio. 

Congress came to this same conclusion. That local radio airplay 

does not threaten music sales, as satellite and Internet radio does, 

but rather, directly and positively promotes the sale of music. 

I came to this debate from experience on both sides of this issue, 

from my many years in broadcasting and some years as a record 

label executive. What I have failed to understand after 30 years in 

the industry is why the recording industry is willing to essentially 

bite the hand that feeds it. 

The free airplay for free promotion concept has established a natural symbiotic relationship between local radio and the recording 

industry. Both grow and flourish together. A performance tax, however, will financially hamstring broadcasters. 

The effect of such a dramatic increase in radio station costs will 

not go unnoticed. 

Broadcasting is an industry that is funded entirely through advertising revenue. We do not have the option of raising our subscription rates. The funding to pay for this new fee has to come 

from somewhere. 

So do we cut the $10.3 billion that broadcasters donated in 2005 

to public service announcements and community service for charities and other worthy causes? 

Do we run more advertisements, which will have the effect of 

playing less music, which will ultimately harm the recording industry? 

Or what about small urban and rural radio stations that serve 

niche communities, such as minority groups? There is a reason that 

the National Association of Black Owned Broadcasters, or NABOB, 

also opposes the imposition of this tax. 

Finally, how will such a tax degrade the ability for stations to 

offer programming for their local community, such as community 

affairs, traffic, and essential news and weather in times of emergency? 

The answers are not simple and the consequences of this debate 

will hit both industries in unanticipated ways. The bottom line is 

that there is no justification for changing a system that has worked 

for the music industry as a whole for so many years. 

The United States has the most prolific and successful music industry that is the envy of the world. Upsetting the careful balance 

that Congress struck by imposing a performance tax on local radio 

broadcasters would be a shift of seismic proportions. For over 80 

years, Congress has not seen fit to alter this mutually-beneficial 

policy, and there is no reason to do so now. 

I thank you for inviting me here this morning. 

[The prepared statement of Mr. Warfield follows:]

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PREPARED STATEMENT OF CHARLES M. WARFIELD, JR.


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Mr. BERMAN. Well, thank you very much, Mr. Warfield. 

And now, finally, is our concluding witness, Sam Moore. 

TESTIMONY OF SAM MOORE, RECORDING ARTIST 

Mr. MOORE. Thank you. Good morning, Mr. Chairman and Ranking Member Coble. My performance here this morning may be the 

most important gig of my career. 

I am grateful to the Subcommittee for holding a hearing on this 

vital issue that faces us American recording artists. 

I am proud to be here as a founding member of the musicFIRST 

Coalition, and a member of AFTRA, SAG, RAC and the Recording 

Academy. 

I will tell you a little bit about my career, and I promise to be 

brief, no matter how long it takes. [Laughter.] 

40 years ago, I formed a duo that made it big in the mid-1960’s. 

Our famous Sam and Dave recording became a series of top hits 

as in ‘‘Hold On I’m Comin’,’’ ‘‘I Thank You,’’ and, of course, a little, 

small hit called, ‘‘Soul Man.’’ You can hear those songs today on 

radio across the country and all over the world. That is pretty 

amazing. 

My most recent album, ‘‘Overnight Sensational,’’ was nominated 

for a Grammy last year, 40 years after my first nomination. But 

at 71, I am still forced to go out on the road to support my family 

and myself. 

To shed light on this issue of broadcast performance royalties for 

artists, let me share something I hear all the time, even from some 

of you members of this great body, just learning of this issue who 

mistakenly believe I get paid when my recordings are played on the 

radio. 

You would be amazed at how shocked people are when they 

learn, whenever I say, I am not getting nothing. No royalties whatsoever from the broadcasters for my performance that has been enjoyed by the audience and used by them to draw that audience support and to support their families. 

I just heard that the radio industry thinks they are going to do 

me some kind of favor by playing my recordings. They think they 

are promoting me through my music so I can sell records and concert tickets——

I say, in no uncertain terms, radio does absolutely nothing to 

promote me or sales of my recording unless I have a current product and a huge promotional budget. People hear the bulk of my recordings so frequently on oldies stations that they don’t have to buy 

my records at all. 

As for radio allowing me to, and helping me to, sell tickets, well, 

thank you very much. But at almost 72, I would rather be at home 

spending time with my grandchildren and running a golf ball 

thinking I am Tiger Woods. 

If broadcast shared any of the money they earned from playing 

my records, I would not have to continue to spend so much of my 

life running up and down the road. I don’t have the private jets 

and the extravagant tour buses with staff to make my life comfortable. And my posse? My wife, Joyce, the bag schlep. 

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So while my record continues to bring joy to music lovers worldwide and continues to help the radio business become a $20 billion 

industry, I struggle to even make a living, even if I look successful. 

Broadcasters also claim they are serving the community. Well, 

what about the artists? Aren’t we part of the community? And 

haven’t we been struggling independently, small businessmen, before some of us got the right to vote? 

Those recordings are my legacy. They, and I, the artist, deserve 

to be protected with a full performance right. In every other developed country in the world, artists have such a right. 

Adding insult to injury, when my recordings are played on stations overseas, I cannot claim any of the funds paid for my songs 

there, simply because the U.S. does not require payments here. 

I learned the other day coming here that a friend of mine, Mr. 

Howard Veegal, told me about Little Jimmy Scott who is in the 

hospital that hurt his good hip. He was out working. Now, he is 

almost going to be tossed out of the hospital because his nursing 

home, at 85, said he can’t pay. He is frail, and he can’t work. 

We are also talking about the Mary Wells, the Ruth Browns, the 

Junior Walkers—all worked until they died because they had to because of charity cases. Why? 

Mr. Chairman, this is the only thing about—this whole thing is 

about fairness and equity. American broadcasters literally earn billions by playing our records. All we are asking is to receive what 

artists in every country around the world, when their recordings 

are broadcast, is fair compensation for the performance of our 

work. 

Our legacy is our music. Please help us fix this historic injustice. 

We have sought the rights to help for more than 50 years. Let us 

just play fair. That is what it is all about. 

Personally, I pray I live to see this important legislation pass in 

my lifetime, and I remind you, I am looking hard at 72. 

I am grateful for your invitation to share my views with you 

today. Thank you. 

[The prepared statement of Mr. Moore follows:]

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PREPARED STATEMENT OF SAM MOORE


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Mr. BERMAN. Well, thank you all very, very much. 

And the Chair is now going to recognize the Ranking Member, 

Mr. Coble, for 5 minutes for questions. 

Mr. COBLE. Thank you, Mr. Chair, for this courtesy. Mr. Chairman, an outstanding panel and a superb, productive hearing I believe. 

Madam Register, if the performance royalty exemption for broadcasters is eliminated, would it create a sizable impact, either negative or positive, for songwriters, performers, and the music industry 

as a whole? 

Ms. PETERS. Hopefully not. 

One of the things that already is in section 114, when the very 

first performance right—limited as it was—performance right was 

created was that that was in no way to affect rights that are basically guaranteed—the public performance rights for composers and 

for music publishers. That is also an international treaty obligation: that you cannot derogate from those rights. 

So that has to be a commitment, both a national and international commitment, so I would say——

Mr. COBLE. Thank you for that. 

Mr. Warfield, I am going to give you a simplistic question. I 

think most people—strike that—maybe not most. Many people respond to this issue in this way: More people are listening to music 

more and more each day, I am told, because of Internet and satellite broadcasting. Why should not terrestrial broadcasters, many 

people ask, pay the same performance royalties that Internet and 

satellite broadcasters pay? 

And let me put a second question to you, Mr. Warfield, if I may. 

Toward the conclusion of your statement, you noted that the 

United States commercial radio broadcasting industry was, for the 

most part, built by private commercial entrepreneurs—and I am in 

agreement with that—but who did not and do not receive one cent 

from the Government or its listeners. 

Now, Mr. Warfield, I am thinking now about the spectrum. What 

would be your estimate of costs to the industry to replace the spectrum, if you were forced to pay a commercial rate for it? 

If you would respond to those two questions? 

Mr. WARFIELD. Well, Mr. Coble, I can’t answer the last question 

there in terms of what would the costs be for the spectrum. 

I do know, though, as a licensed broadcaster by the FCC, there 

are responsibilities that we all have to our communities. There is 

a public affairs program in that we provide public interest obligations that we meet, public service announcements that we provide 

to the community. There is local news and weather information 

that we provide, that we are obligated to provide, and we are 

happy to do that. We also provide essential information in the 

event of emergencies. 

So there are certainly obligations that we, as broadcasters, have 

with the spectrum that we have the right to broadcast on. 

So, you know, I could not put a dollar value on that. I do know 

that we did provide over $10 billion worth of these types of public 

services in 2005, the last year that those numbers are available. So 

we are being responsible in that regard. 

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In terms of the new platforms and the listening of music, I still 

go back to indicate that, you know, radio still reaches over 232 million listeners a week. Many of those listeners are listening to music 

radio. And it is still evidence that radio is still the primary means 

in which most of these individuals learn about new artists and new 

music, which they may then go to other platforms. They may decide to purchase some of that music. 

But there is still the awareness factor and the exposure factor 

that still is there as a result of the free broadcasting that we do 

in radio. 

Mr. COBLE. I thank you, sir. 

And I thank you all again for being with us today. 

Mr. Chairman, I am going to the Coast Guard hearing, and I am 

going to try to come back. But, in conclusion, Mr. Chairman, I want 

to repeat what I said earlier. 

I am high on broadcasters. Do you hear me, Mr. Warfield? I am 

high on broadcasters. I am also high on performers. 

And I am hoping we can strike some sort of balance, Mr. Chairman, that will result in a not-too-burdensome conclusion. 

And I yield back. 

Mr. BERMAN. I think there is a song there. [Laughter.] 

Thank you very much, Mr. Coble. 

Mr. COBLE. Do I get paid for it, Mr. Chairman? [Laughter.] 

Ms. COLLINS. Would you perform it? 

Mr. BERMAN. The gentleman from North Carolina, Mr. Watt? 

Mr. WATT. I think if I wasn’t going to get paid for it, I am not 

planning to sing it. [Laughter.] 

Let me first thank the witnesses for being here and thank the 

Chairman for convening the hearing. 

I feel kind of like the new guy on the block, as I have since I 

got on this Subcommittee. And I was reluctant to give any kind of 

opening statement because I am in a learning mode and listening 

mode more than a talking mode. And I suspected that there had 

to be multiple sides to this issue. And Mr. Warfield certainly 

helped us paint that picture. 

I feel like I am blessed, obviously, to be in the presence of all 

these artists. And I am embarrassed that I have really kind of assumed that music would be available in my life. 

I get mad at the radio for running commercials. I get disappointed when I can’t hear exactly what I want to hear. 

And so I come to this with—kind of as a blank slate without any 

background in it. And I suspect the same thing will happen that 

has happened on the patent reform bill: that blank slate, and the 

recognition that I am a blank slate, will leave open the door for 

various people to come in and paint what that slate should consist 

of. 

So I suspect, Mr. Chairman, you are opening yet another one of 

those doors for the various interests to come and visit and try to 

educate me. And I look forward to that. 

Ms. Peters, I am just wondering how one might approach structuring a compensation system that would both be fair to the performing artists, the writers, and not burdensome or detrimental, at 

least, to terrestrial radio. How would you go about—has anybody 

done any studies on that issue? How would you——

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Ms. PETERS. Well, remember that almost all countries in the 

world already have a structure in place. 

Mr. WATT. Okay. Maybe I am asking the question——

Ms. PETERS. And Canada actually has——

Mr. WATT [continuing]. How are other countries doing it? 

Ms. PETERS. You can look at Canada. They make a difference between the size of the broadcast station, how many hours in which 

music is being played. 

We are not talking about an exclusive right, where you go and 

negotiate with everybody. We are talking about a statutory license 

which guarantees equitable remuneration for the performer and 

the record producer. So that is what we already have in our law 

with regard to webcasts. 

The criteria could take into consideration the size of the station. 

The basic principle that you try to put in place, but make it as 

painless as possible, is what a willing buyer and a willing seller 

would do under the circumstances. So a small broadcaster would 

pay a lot less than a large broadcaster. You know, a huge broadcaster who has music 24 hours a day, 7 days a week, would pay 

a lot more than someone who only had music several hours a day. 

So I think it really isn’t that difficult to achieve the correct balance. 

Mr. WATT. Let me get one more question in to——

Ms. PETERS. Yes. 

Mr. WATT [continuing]. Mr. Warfield. 

Are you associated with radio stations in other countries? And 

how do you differentiate the way terrestrial radio is treated in the 

U.S. vis-a-vis those other countries? 

Mr. WARFIELD. As a broadcaster, our company does not own any 

radio stations outside of the continental United States. 

But as I look at our industry here—I have not really been involved with international radio as a broadcaster in my career. 

However, as I look at the U.S. radio system, as I indicated in my 

testimony, we, as broadcasters, support the most lucrative and successful recording industry in the world. And under a system that 

we have with no performance tax, the U.S. record industry is larger 

than the industry for the U.K., France, Germany, Canada, Australia, Italy, Spain, Mexico combined. 

So I think when we talk about the relationship that has existed 

and the success of the recording industry and, through that success, the success of artists, through this 80-year history, makes me 

as a broadcaster say, ‘‘Why would the system really need to be 

changed?’’

Mr. WATT. Thank you, Mr. Chairman. I appreciate you getting 

me in this bind again. 

Mr. BERMAN. Well, it may be a blank slate, but it has a great 

deal of adhesiveness. 

Mr. Goodlatte? 

Mr. GOODLATTE. Thank you, Mr. Chairman. And thank you for 

holding this hearing. 

I want to thank all the witnesses. This has been a very, very interesting hearing. And I would be willing to hum along with Mr. 

Coble if he does the song that finds the cure to this. [Laughter.] 

Let me start with Mr. Warfield. 

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One of the rationales for exempting terrestrial broadcasters from 

the requirement to pay royalties for the public performance of 

sound recordings was that terrestrial radio gave performers and 

owners of sound recordings substantial promotional value in that 

more consumers were likely to purchase these songs when they 

heard them on the radio. 

I wonder if you might comment on how the rollout of satellite 

radio, iPods, Internet radio, and other new technologies have weakened that argument that terrestrial radio alone provides a substantial enough promotional value over these other technologies to justify keeping the exemption. 

Mr. WARFIELD. You know, we all—the record industry, the radio 

industry—we are all competing against these new platforms that 

are emerging today. Still, terrestrial radio still reaches, as I indicated, over 230 million people per week across this country. The 

symbiotic partnership that still exists between radio and the recording industry has helped these companies become the envy of 

the world, as I had indicated. 

But now what we are looking at and the challenges that the 

record industry, unfortunately, has not necessarily kept up with 

these changing times, and then coming here as part of a coalition 

seeking taxes from local broadcasters to subsidize their challenged 

business model. 

There is no question that the industry is challenged today in selling music with these new alternatives that are out here, but in no 

way would we indicate is there any evidence that the work that 

local broadcasters do and the free promotion that we provide is responsible for any of that. As I indicated, we are not——

Mr. GOODLATTE. I don’t think they are responsible for it, but 

they are suggesting that if some of these other platforms are paying performance royalties, that they are also providing a means by 

which songs are promoted and there is a disparity there that somehow we need to find a way to bridge the gap. 

Ms. Peters, would you care to comment on that? 

Ms. PETERS. That is exactly the point. That all of these people 

are paying, and that the principle is that this is a copyright and 

this is a right that is being exercised and it forms the basic business model of radio stations. And that, in fairness, they should pay 

also. You can talk about under what terms and what conditions, 

but they should pay. 

Mr. GOODLATTE. Ms. Peters, let me follow up with that. 

What are foreign nations doing? Are they currently withholding 

royalty payments to U.S. performers and sound recording owners—

their nations are not compensated when their songs are performed 

over U.S. terrestrial broadcast signals? 

Ms. PETERS. It depends on the country. 

Mr. BERMAN. I think we need a sound engineer. 

Ms. PETERS. Yes, right. 

It depends on the country, but in many countries they collect for 

all sound recordings, including U.S., and don’t pay. In others, they 

don’t collect. But under either scenario, their performers are getting paid and our performers are not, even though the performances of both are taking place in that particular country. 

Mr. GOODLATTE. Thank you. 

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Ms. Collins, would you care to comment on this relationship? 

Ms. COLLINS. Yes. I think you, you know, it is interesting. I am 

sitting here wondering about class actions suits. 

You know, all of the artists, excluding the issue of whether or not 

we should be paid as artists in this country—and I think I have 

settled that in my own mind, we certainly should—and it should 

be a sliding scale for those who can afford more, for those who can 

afford less. 

But the fact that my records across the world have not been paid 

for means that many, many thousands, millions, perhaps, of artists 

over a period of what is it, 80 years? Is that the—it is 80 years. 

Eighty years and all of these musicians who are not being paid in 

countries which have laws which protect the artist, where is that 

money? It is not in my pocket. 

And in the case of ‘‘Amazing Grace,’’ which played around the 

world and which most of you know, amazing grace, you know, how 

sweet the sound—— [Laughter.] 

How sweet the free sound, it turns out. [Laughter.] 

I am curious about that idea, because with this coalition of artists, that might be a subject that we might want to bring up. 

We are certainly not talking about a retroactive situation, although legally we might, but the idea of the money that is sitting 

internationally and why we don’t respect other artists in this country who are not receiving payments for their performances either. 

It is a complicated question, but once we solve this one, then we 

will look at that. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. BERMAN. Thank you. 

The bells have gone off. The situation is we have about 15 more 

minutes and then 3 votes, and then we will come back. But I do 

believe we have time for one more witness before we recess. 

So the gentlelady from Texas, Ms. Sheila Jackson Lee? 

Ms. JACKSON LEE. Chairman, thank you. 

Let me add my affirmation that you managed to find the armadillo in the middle of the road when it comes to questions that I 

think are enormously important. 

Let me quickly go to the esteemed Sam and Dave, but Mr. 

Moore, thank you, all of you, for your testimony. 

Would you just give me the list of names—I happen to represent, 

I believe, the last remaining member of The Ink Spots. He is close 

to 100-plus years old, and he is living in a nursing home. I would 

imagine what he would be able to find a way to live if we had some 

altering of this process. 

Would you just give me the names of those who have suffered? 

Jackie Wilson, I know, had a terrible time. But you mentioned 

Billy Preston. Are there any others? Would you just mention some 

of those names for us that really have suffered in the later years 

of their lives? 

Mr. MOORE. Well, let us see. You said Jackie Wilson, yes. 

How about Bo Diddley? That was in Iowa not long ago, about 2 

or 3 weeks ago, working on stage and had a stroke. 

Now, you must understand that, before the stroke, he was an 

amputee on his left foot. Now, you know, if he was getting performance pay, he could have that $3,000, $4,000, $5,000 a month to pay 

103

and not worry about taking care of his bills or his family or anything else. He could not worry about anything other than taking 

care of his health. So that is——

Ms. JACKSON LEE. Those are glaring examples. Thank you very 

much. 

Ms. Peters, can you give me any legal—legally speaking, is there 

any way to justify the sole exemption of sound recordings from a 

performance right? And do you know how such exemption came 

about? And because bells are ringing, I am asking for quick songs 

at this point. 

Ms. PETERS. The answer is no. I don’t know of a justification. I 

have been advocating this for almost 25-plus years, and before 

that, my predecessors have. 

I will argue—and I think I sort of suggested it—that it is the effectiveness of the broadcast lobby. 

Ms. JACKSON LEE. In the 1998—the register, which—was that 

you in 1998? 

Ms. PETERS. No. It was Barbara Ringer. 

Ms. JACKSON LEE. Went on record affirmatively for that——

Ms. PETERS. And I have gone on record——

Ms. JACKSON LEE [continuing]. For that position of those payments. 

Ms. PETERS [continuing]. Absolutely, yes. 

Ms. JACKSON LEE. Would you understand the value of—as we try 

to forge—which I think my good friend Howard Coble suggested, a 

reasoned place in the middle—the exemption of certain small radio 

stations which would probably suffer greatly and close if they were 

to come under such a requirement? 

Ms. PETERS. I believe that when you craft a solution you craft it 

so that it is equitable. Yes, the basic principle is paying, but, yes, 

you can have special provisions and even exemptions for small 

broadcasters. 

Ms. JACKSON LEE. Thank you. 

Mr. Warfield, broadcasters have labeled the payment to artists a 

performance tax. Is that how you are viewing payments to songwriters for radio play or do you view them as royalty payments? 

Why wouldn’t payments to performers be royalty payments? 

Mr. WARFIELD. The performance tax that we are discussing today 

would go to what is referred to as artists and record companies 

who, in the existing system, benefit greatly from the free on-air 

airplay of their product. Record sales result from that, which benefits the artists, as well as the record label at this point. Whereas 

the composers of the music—the writers of the music—do not receive that type of a benefit, which is why there are payments being 

made to them and have been statutorily required throughout our 

broadcast industry. 

Ms. JACKSON LEE. I think the industry has changed so much, 

Mr. Warfield. And I want to thank you for your leadership, but 

that probably is not accurate. I can’t really agree that there is such 

an enormous benefit to performers that we would classify one as 

a tax and one as a royalty. But I hope we can find common ground. 

I don’t want to leave my good friend, Congressman Hodes, out 

of—for the fact that people should know that he sings very well, 

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even as a congressperson, and we have enjoyed very much his singing. 

But, Congressman, is there a way to balance this? 

And I might conclude quickly by asking Ms. Collins, should we 

not have a balance on the royalty payments on these Internet radio 

royalties where Clear Channel, Yahoo, and Microsoft pay so much, 

should we not have royalty rates for that lower level that will create music diversity? 

So I am going to go to the congressman and then, since I got in 

before the light, if you would be able to answer that. 

Congressman? 

Mr. HODES. Thank you for your question. 

Very quickly, there are models that are already in place that 

point the way to the kind of balanced and fair system that this 

Committee, with its expertise, is well-capable of crafting. 

Ms. Peters has talked about sliding scales. There are potential 

exemptions. There are lots of ways to make this work, and we already have some models in what has happened in the digital 

realm. 

Ms. JACKSON LEE. Ms. Collins, I——

Ms. COLLINS. Thank you. 

Ms. JACKSON LEE [continuing]. Would hear ‘‘Amazing Grace’’ forever, but the Chairman is going to gavel me down. 

Just to balance out the Internet rates, should they be? 

Ms. COLLINS. I believe that the equitable distribution of royalties, not taxes, should be worked on and a fair and equitable decision made about this. 

But I want to just remind us of why we are really here. We, in 

this country, do not recognize the value of our artists as we do in 

other countries. That is really what this is about. We have devalued the contribution of great, great, great artists, and that 

needs to be remedied. 

Ms. JACKSON LEE. Thank you. 

Thank you, Mr. Chairman. 

Mr. BERMAN. We will now recess. We hope very much that all of 

you can stay because, if you do, we will come back. [Laughter.] 

[Recess.] 

Mr. BERMAN. The Subcommittee hearing will resume. 

And I am pleased to recognize the gentleman from Florida, Mr. 

Keller, for 5 minutes. 

Mr. KELLER. Well, thank you, Mr. Chairman. I very much appreciate that. 

I want to thank all the witnesses for your testimony. 

This is an issue that I certainly approach with an open mind. 

And so I am going to ask some easy and tough questions, hopefully 

of both sides, because I genuinely want to learn a few things. 

Let me begin with Mr. Warfield to make sure that I have got this 

scenario correct. 

For free radio, also called terrestrial radio, the songwriter would 

get paid a royalty but not the performer? Is that correct? 

Mr. WARFIELD. That is correct. 

Mr. KELLER. And on satellite radio, the performer would get paid 

a royalty. Is that right? 

Mr. WARFIELD. That is correct. 

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Mr. KELLER. Now, if a law, such as the topic that we are talking 

about today, is implemented requiring terrestrial radio to pay a 

royalty for performers, how would radio adjust to this new law? 

Would you have to raise advertising revenue by increasing advertising prices, or what would you do? 

Mr. WARFIELD. I am sure some broadcasters would attempt to do 

that, but in the current environment, that would be very difficult 

to do. 

Unfortunately, I believe some broadcasters would, if not change 

format and get away from a music format—some broadcasters, unfortunately, would probably be forced to sell their radio stations 

and get out of the business. And our concern is that many of the 

smaller market medium-size broadcasters that would be a very real 

option that they would have to consider. 

Mr. KELLER. So your three options: You are going to have to 

change your format to go to talk radio, where you don’t have to pay 

these royalties, or you are going to have to layoff some people for 

overhead, or you are going to have to increase the advertising revenue rate. 

Mr. WARFIELD. Make an effort to do that. 

Mr. KELLER. So when I buy my ads on radio for my next political 

campaign, I may have to pay more money to make sure the Dixie 

Chicks have higher profits? There is your trouble with that particular scenario. 

Now, you have said that this is a tax. Let me ask you, do you 

consider the current system of paying the songwriters to be a tax? 

Mr. WARFIELD. No, we consider that to be a royalty. It is part 

of our operation that we understand, since they do not benefit in 

the same manner that the record labels and the artists do under 

the existing system that has been in place for 80 years. 

Mr. KELLER. Well, if this were implemented, the Treasury would 

get no money from this new royalty to performers. Is that correct? 

Mr. WARFIELD. I don’t know what form it would ultimately take. 

Mr. KELLER. Does the Treasury get any money today by paying 

the songwriters a royalty fee? 

Mr. WARFIELD. Not to my knowledge, no. 

Mr. KELLER. Okay. So I would just point out some folks wouldn’t 

consider that to be a tax. 

Let me just say this. Listening to you all, it seems to me—and 

again, I am open-minded—that the radio stations are a bit underappreciated here. 

You have made the argument, Mr. Warfield, that there is a symbiotic beneficial relationship and that by putting an artist’s songs 

into the regular rotation and getting them substantial airplay that 

that helps the record sales and helps promote concerts. Is that correct? 

Mr. WARFIELD. That is correct, as further evidenced by this 

morning’s USA Today that has music charts in it based upon radio 

airplay. 

Mr. KELLER. Okay. 

Mr. WARFIELD. That is correct. 

Mr. KELLER. And I have heard Ms. Marybeth Peters and Mr. 

Sam Moore take a different view that—I believe she said that she 

is not inclined to think there is a mutually beneficial relationship. 

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I just have to say, on this issue I think the radio stations are a 

bit underappreciated on it. Because, during the break, while I am 

voting, I just picked up the phone and called the head of music programming for my local radio station, the main one in Orlando. And 

he tells me that the record companies and their publicists call him 

nearly every day begging for their songs to be put into the regular 

play list rotation. 

And if there is no benefit to the record companies or the artists 

from getting regular airplay, I wonder why in the world they keep 

begging the radio stations to put their music on the air. 

Mr. WARFIELD. I agree with that. It is a situation that in the industry—and I have been in the industry for 30 years and a couple 

of those years in the record industry—quite a bit of their time, 

quite a bit of our staff’s time is spent in conversation and dialogue 

with the record industry every week. 

Mr. KELLER. Now, Mr. Sam Moore, let me just thank you so 

much for being here today. And if you never did nothing in your 

life, you have already changed our culture with your great performances with ‘‘Soul Man.’’

Is the gist of your argument that it is very unfair to you that you 

are paid a royalty when your music appears on satellite radio and 

other venues but not on regular radio? Is that the gist of it? 

Mr. MOORE. I think my only argument is this: If I don’t know 

anything else, I only know this. We just want to even the field, be 

fair, you know. 

The writers are getting what they are getting. I don’t know nothing about the figures. I am not a CPA and all that stuff. 

But I do have a question, if I may. 

Mr. KELLER. Sure. 

Mr. MOORE. Wouldn’t it take a full credit to reduce your tax burden of what you pay? I would ask Charles that. 

Mr. WARFIELD. Was the question—I am sorry to misunderstand 

the question, but would it be a cost of operation and therefore be 

a taxable operating expense? Depending upon how that is structured, most likely, sure. 

Mr. KELLER. Well, I have more questions. I want to get some 

hard questions to the other side, too, in fairness. But I have to tell 

you, I ran out of time. 

So, Mr. Chairman, I will yield back the balance of my time. 

Mr. BERMAN. Thank you, Mr. Keller. 

Ms. COLLINS. May I address that question with a little comment 

here? 

Mr. BERMAN. Does the gentleman from Tennessee wish to allow 

the——

Mr. COHEN. I would gladly yield my time to the lady from California. Had a feeling—— [Laughter.] 

Ms. COLLINS. Thank you. 

As a business owner myself—and I am a small business, and I 

am the product—I pay taxes. They are always very high. 

And I understand—I have had to come to this, because it has 

taken me a long time to learn about how any business operates. I 

am a slow learner. However, I know when I have a business expense, my taxes go down. And I think that is one question we could 

address. 

107

Also, I don’t want to underestimate the value of radio either. I 

love radio. Radio has been fantastic to me. There is no reason why 

I shouldn’t be paid for my presence on radio, but I value, I value 

the institution tremendously. 

So I don’t want anybody to get the idea that we don’t appreciate 

what it does. We just want to get paid for our work. 

Mr. BERMAN. On the tax issue, have you thought about starting 

a hedge fund? [Laughter.] 

Never mind. 

Ms. COLLINS. I run my own mutual fund. [Laughter.] 

Mr. COHEN. Thank you, Mr. Chairman. 

First, this is just on my mind. Mr. Moore said he didn’t know 

anything about math. And I will ask Congressman Hodes because 

he can probably answer this question. I was trying to—what are 

the words to that. It is I don’t know algebra, don’t know anything 

about, just know that I——

Ms. COLLINS. Oh, yes. 

Mr. COHEN. What is the song called? 

Ms. COLLINS. Don’t know much about history——

Mr. HODES. Don’t know much about——

Mr. MOORE. ‘‘What a Wonderful World,’’ Sam Cooke. 

Mr. COHEN. Thank you, sir. Name that tune. [Laughter.] 

Mr. MOORE. Right. 

Mr. COHEN. Mr. Moore, last time I saw you I think was Governor 

Sundquist’s inauguration or Tennessee 2000 or something like 

that. But you were doing a nice event in Nashville, and I appreciate your coming back and doing that whenever you are in Memphis. 

‘‘Soul Man,’’ you don’t get paid when it gets on the radio but the 

songwriters get paid for that, right? 

Mr. MOORE. Yes. 

Mr. COHEN. Is that David Porter? 

Mr. MOORE. David Porter and Isaac Hayes. 

Mr. COHEN. And they are both friends of mine. Would you like 

me to negotiate for you? [Laughter.] 

Mr. MOORE. Would you mind? [Laughter.] 

Mr. COHEN. I think Mr. Bainwall’s friend, Mr. Moore, could do 

that better than I, but. 

You know, they wrote it, but I don’t know that—of course, they 

are a different situation. I was kind of thinking about Elvis. Elvis 

never wrote anything. 

Mr. MOORE. Right. 

Mr. COHEN. Except maybe a check. 

Mr. MOORE. Right. 

Mr. COHEN. But Elvis doing the song, that was the song. 

Mr. MOORE. Right. 

Mr. COHEN. And the writers got paid and Elvis didn’t. 

Mr. MOORE. Right. 

Mr. COHEN. And without Elvis, there wasn’t a song. 

Mr. MOORE. That is right. 

Mr. COHEN. Without a song——

Mr. MOORE. Without a song. 

Mr. COHEN [continuing]. Et cetera, et cetera. 

Mr. MOORE. The world would never end. 

108

Mr. COHEN. Keep going. Don’t let me——

Mr. MOORE. No, no, no. [Laughter.] 

I will have to charge you then. [Laughter.] 

Mr. COHEN. Let me ask Mr. Warfield. 

I understand your position, obviously. And I have, like Mr. Coble, 

friends in broadcasting, as well. But how can you distinguish the 

system in America from the system in Europe, as far as its appreciation of or paying of songwriters? Do the—I mean, singers. Do the 

singers in Europe not get the benefit and get to perform and get 

more people to come to their concerts and buy their records? 

Mr. WARFIELD. I think just the sheer magnitude of the industry 

here, both the recording industry, the size of the recording industry, the profitability of the recording industry and the revenues 

that are generated through the support of over 6,800 local radio 

stations, significantly dwarfs what is available to many of these 

artists in foreign countries versus the United States. 

And I think that size issue and the fact that the broadcasting industry for 80 years has been providing this type of free exposure 

to artists and labels is what has helped this industry grow to the 

size that it has been and spawned so many very successful artists 

over the last 70-plus years. 

Mr. COHEN. Even if, you know, size is important, but nevertheless, in Europe, where they have got a different market, they still 

have to get paid, the singers. And they do get paid in Europe. You 

don’t see that there is some equity there? 

Mr. WARFIELD. I think that the reality of a lot of these artists 

that are international are looking for that type of support here in 

the United States, support that is provided by radio airplay, would 

indicate that they are sort of willing to work with the system that 

is in place here in the United States. They see the rewards and the 

benefits that have accrued to many labels and many artists over 

a long period of time. 

And I think that many of them—they don’t—they are not sitting 

here today. Would they trade that? I am not sure. But it is certainly a benefit that they would consider. 

Mr. COHEN. Do you have a proposal that would make some kind 

of equitable solution? Do you have something you want to put on 

the table? 

Mr. WARFIELD. I would like to leave the system the exact way 

it is today——

Mr. COHEN. I know. But if you couldn’t leave it the way it is, 

what would be your suggestion, other than a de minimis amount 

of money? 

Mr. WARFIELD. I could not agree to do anything more than the 

system as it exists today, Mr. Cohen? 

Mr. COHEN. Okay. Well—and I guess it is. I—— [Laughter.] 

You know, if you had Mr. Hodes singing ‘‘Suspicious Minds,’’ instead of Mr. Presley, you wouldn’t have as many people listening 

to your station, I suspect. [Laughter.] 

And so Mr. Presley’s estate should be paid for that. [Laughter.] 

Mr. BERMAN. Is that a compliment? I don’t think so. [Laughter.] 

Mr. WARFIELD. And I was going to leave that one alone. I wasn’t 

going there. [Laughter.] 

Mr. COHEN. Thank you, Mr. Chairman. 

109

Mr. BERMAN. The gentleman from Georgia. 

Mr. JOHNSON. Yes, thank you, Mr. Chairman. I certainly want to 

commend you for holding this hearing. It is a matter of equity and 

fairness. 

And I might first begin by saying that, you know, when you rub 

a cat the wrong way, the cat gets kind of agitated. And I feel like 

a cat that has—my hairs have been rubbed the wrong way when 

I hear the term performance tax. 

And what I wanted you to answer for me, sir, is, I mean, a tax 

is generally paid to the State. A tax is always paid to a governmental entity. But you would not be paying—broadcasters would 

not be paying revenues to a governmental entity. It would just be 

simply paying to a performer on a sound recording. 

Why is it that you persist in using the term performance tax? 

Mr. WARFIELD. Well, this is a payment that broadcasters both 

large and small would have to pay. You know, some people look at 

this as a wealth transfer that is going to very successful record 

companies who would benefit from this in addition to the artists. 

Radio stations——

Mr. JOHNSON. How would record companies benefit from paying 

royalties to performers, especially when the record companies are 

already receiving income from their publishing rights? 

Mr. WARFIELD. As I understand the coalition that is——

Mr. JOHNSON. Sometimes they have even taken the writer’s 

share. 

Ms. COLLINS. Absolutely. 

Mr. WARFIELD. The record labels? 

I would only indicate there, and it is, you know, it is sort of along 

the lines of earlier comments about the artists who have not been 

treated fairly. I would put that back as a responsibility of the 

record labels. 

Why have the record labels allowed that to happen with artists 

that have helped make them as successful as they are today? And 

it is not the responsibility of the broadcasters to cover, I would say 

in some cases, the misdeeds of the record labels. 

Mr. JOHNSON. Well, the fact is, though, that terrestrial broadcasters make a lot of money on those sound recordings themselves. 

Mr. WARFIELD. I wouldn’t say we make money on the recordings. 

Mr. JOHNSON. Well, if——

Mr. WARFIELD. The free broadcasting of those records that are 

provided to us by the record labels is what allows them to expose 

that music to the consumer, which will then turn around and purchase those records, which benefits both the label and the artist at 

that point. 

Mr. JOHNSON. And having those sound recordings broadcast 

causes you to be able to reap——

Ms. COLLINS. Exactly. 

Mr. JOHNSON [continuing]. The benefits of advertising revenues 

that are derived from that exploitation. 

Mr. WARFIELD. I wouldn’t use exploitation, but there are certainly some broadcasters that do well with that. There are some 

that do not. 

And the imposition of this additional tax on many of these broadcasters in small and medium markets could be the difference beVerDate 0ct 09 2002 14:40 Nov 27, 2007 Jkt 000000 PO 00000 Frm 00113 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\073107\37011.000 HJUD1 PsN: 37011
110

tween whether they remain in business or not, whether they continue to service the communities that they are licensed to serve. 

And, unfortunately, as a minority broadcaster, a lot of small and 

medium broadcasters that target these audiences are people that 

I am very much aware of that don’t have the means, unfortunately, 

to pay additional costs. 

Mr. JOHNSON. Well, I tell you now, I am looking at Clear Channel—I am looking at a report here where Clear Channel Communications reported revenues of $1.8 billion in the second quarter of 

2007, an increase of 5 percent from the $1.7 billion reported for the 

second quarter of 2006. And then the net income increased 19 percent to $236 million in the second quarter of 2007. 

There is a lot of money in terrestrial broadcasting. Part of that 

money comes from Web broadcasters who pay royalties to the terrestrial broadcasters for running their transmissions over the Web, 

isn’t that correct? 

Mr. WARFIELD. Mr. Johnson, I would respectfully indicate that 

our industry—and I believe I saw a press release yesterday that 

the broadcast industry has grown from $15 billion to a $20 billion 

industry from 1998 through 2006. 

Mr. JOHNSON. My question——

Mr. WARFIELD. But what I would indicate with that is that all 

of that growth occurred between 1998 and 2000. There has been 

absolutely no growth in our industry——

Mr. JOHNSON. Okay. 

Mr. WARFIELD. Respectfully, what Clear Channel has done, that 

is wonderful for Clear Channel. But that certainly does not translate to many broadcasters in this country today. 

Mr. JOHNSON. Well, my question is this: Webcasters pay a fee to 

broadcast terrestrial radio over the Web, correct? 

Mr. WARFIELD. In some cases, that may be true. 

Mr. JOHNSON. Well, I mean, no respectable broadcast radio 

transmitter would allow their signal to be broadcast over the Web 

without getting paid for it. 

Mr. WARFIELD. We broadcast ourselves. We stream two of our 

radio stations. Of the group that we have, we stream two radio stations on the Web only. 

Mr. JOHNSON. And if anybody wanted to broadcast your programming over the Web, you would want them to pay you for that. 

Mr. WARFIELD. If you know anyone that would like to do that, 

I would love to speak with them. I have not had that opportunity 

in our company. 

Mr. JOHNSON. Well, there are a lot of folks out there who are 

broadcasting over the Web and paying money for it. And if you look 

at that in terms of that Web broadcast being like a sound recording, it is paying the performer, in other words, to broadcast. And 

so I don’t see why terrestrial broadcasters should be exempt from 

having to pay for the——

Mr. BERMAN. The time of the gentleman has expired. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. BERMAN. I will recognize myself for 5 minutes. 

If it is any consolation, Mr. Keller, my guess is that the radio 

stations you will be advertising on are probably boycotting the 

Dixie Chicks. [Laughter.] 

111

Mr. KELLER. I hope so. [Laughter.] 

Mr. BERMAN. Mr. Warfield, continuing to beat on you. [Laughter.] 

I grew up and live in Los Angeles. There is a wonderful baseball 

announcer there named Vin Scully who broadcasts a pretty magical 

game in a very magical way. And no one can tell me that Vin 

Scully’s broadcasts of Los Angeles Dodgers games doesn’t attract 

fans to go to those baseball games. 

In other words, I really don’t have serious doubts that your promotion of records gets people interested in that music. But I think 

no one in the world would suggest that, because the station that 

broadcasts Los Angeles Dodgers games is helping the Dodgers increase its fan base and its purchase of uniforms and caps and other 

things for which they have ownership rights, that the Dodgers are 

somehow obligated to allow that station to broadcast the Dodger 

games for free. 

Analytically, what is different about this situation than that? 

Mr. WARFIELD. Mr. Chairman, I was, you know, born and raised 

here in Washington, D.C. It was——

Mr. BERMAN. Well, that is a different problem. [Laughter.] 

Mr. WARFIELD. I was a Senators fan, by the way, you know, living in Anacostia. 

And I grew up here in Washington, D.C., sitting on my porch listening to a—trying to pick up a small AM radio station in Baltimore, WEBB, to hear music that ultimately I would actually go out 

and buy. More years ago than I might want to say, it is almost 50 

years ago that I did that. But that relationship with music radio 

stations and record companies and artists continues today. 

I had such an extensive collection simply because of what I 

heard, and I went out and bought. And I would argue that today, 

that practice is still in effect. I spoke to my nephew yesterday 

afternoon——

Mr. BERMAN. Yes. I don’t contest it. I am not challenging the mutually beneficial nature of the relationship. 

I am just trying to understand why, in this area, the recognition 

of that relationship makes one conclude that therefore one party to 

that relationship shouldn’t pay for what they are playing. 

Mr. WARFIELD. I am sure that was a negotiation that existed between that broadcaster and that baseball team at that point. In 

terms of driving people to the seats, it is sort of whether they are 

winning or losing. 

Mr. BERMAN. Fair—that is a—so maybe the thing isn’t to pass 

a statutory license to compel record labels and recording artists 

and bands to provide their music at a certain price. Maybe it is to 

just let the free market play and let a radio station have to negotiate for every record it wants to use with the owner and the——

Ms. COLLINS. Right. 

Mr. BERMAN [continuing]. Recording artists and all the people 

who have interest in that sound recording. But that is not a good 

system. Is it? 

Mr. WARFIELD. I think the system that is in place now has 

worked very well for the recording industry and the radio industry——

Mr. BERMAN. Right. All right. 

112

Mr. WARFIELD [continuing]. And for the artists, as a matter of 

fact. 

Mr. BERMAN. Well, but part of it is because it is a mutually beneficial system, right? 

Mr. WARFIELD. Mutually between the radio stations, the record 

labels, and the artists——

Mr. BERMAN. Yes. 

Mr. WARFIELD [continuing]. Absolutely. 

Mr. BERMAN. When one party to a relationship that the other 

party thinks is mutually beneficial thinks it aint that beneficial, in 

America we let the parties sort of decide——

Ms. COLLINS. Right. 

Mr. BERMAN [continuing]. Whether that relationship is mutually 

beneficial, don’t we? 

Mr. WARFIELD. Well, when those individuals—I know, again, we 

have music day in our radio stations in all of our markets at least 

once a week. And we have no shortage of individuals from the 

record labels, nor artists, that want to come to the radio station 

and work to get airplay or work to have interviews. 

I think that at that point I see a relationship that is certainly 

mutually beneficial for all parties. It is helpful to the radio station. 

It is helpful for the record labels, and certainly provides exceptional 

exposure for that artist, whether it be a new artist or an established artist that has new releases. 

So I think it is absolutely beneficial to all parties. 

Mr. BERMAN. All right. Well, my time has expired. But I am—

oh, good. [Laughter.] 

Mr. ISSA. I am there for you, Chairman. [Laughter.] 

Mr. BERMAN. The gentleman from California, Mr. Issa? 

Mr. ISSA. Thank you, Mr. Chairman. 

And I rushed back because this is so important. 

Ms. Collins, if you had the right to withhold from those who do 

not pay you a fee for your performance, today would you exercise 

it? 

Ms. COLLINS. I am sorry. Could you repeat the question? 

Mr. ISSA. It is a tough one. 

The gentleman sitting next to you is happy to promote your 

music. He is doing you a favor. If you had the right to tell him that 

you did not want him to do the favor at his station anymore, if you 

had the right to do that, would you likely do that or consider it? 

Or, this is assuming he is paying you nothing. 

Ms. COLLINS. Oh, I am getting an education here after being in 

the dark for so many years. And, of course, I would say, yes. Let 

us negotiate a price. 

I mean, that is a free market enterprise. That is what free markets are about. We have other systems of Government which preclude this kind of negotiation. We at least say that we don’t—that 

we are not those societies. We are an open, free market society. 

Yes, I would negotiate. 

By the way, even if there is promotional value—and of course 

there is on the radio—but that must be paid for. That is a service, 

and there is a profit being made. 

As I said before, we are selling, with our music, plenty of advertising. And we are making, in most cases—now, there are excepVerDate 0ct 09 2002 14:40 Nov 27, 2007 Jkt 000000 PO 00000 Frm 00116 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\073107\37011.000 HJUD1 PsN: 37011
113

tions and, you know, we were talking about the—distinguishing between those stations which can afford to pay X and those who can 

afford to pay Y—I think pay for play is the question here and respecting the artists in a society that says it respects artists. 

Mr. ISSA. I am going to ask you a question I should know as a 

fan of yours, but I am unfortunately a fan of your music not currently being written. 

Have you done anything in the last few years that you would like 

to get play on? Are you doing any kind of music anymore? 

Ms. COLLINS. I am always touring. As I said, I do——

Mr. ISSA. No. But I am asking a question——

Ms. COLLINS [continuing]. I make records. They are on the market——

Mr. ISSA. But I am asking a question for a reason, and bear with 

me. 

I told you I have spent a little bit more time with Carole King 

because she has been around here on other issues. And one time 

she did a concert, and she played songs I had never heard, some 

of which I liked and some of which I wasn’t interested in. And I 

asked about them. And they basically don’t get any play because 

the oldies, if you will, in fact, are what the stations play. 

And I asked about it. She said: Well, this isn’t what I am known 

for but this is a lot of what I am doing, and I am continuing to 

create. 

If you had the ability to negotiate and were in Carole’s position, 

for example, I am assuming that you would include in for playing 

my best known songs, the ones that are played habitually on the 

radio, that you would also want those promoted, something that is 

not happening today on any of these radio stations. Is that something that you feel you are being denied because, in fact, there is 

an absolute right to play your winners and no obligation to play 

those? 

Ms. COLLINS. No. No, I don’t feel that is true. I think that the 

market will dictate and the audience for the song will dictate—you 

know, I would love to have some of my lesser known songs played 

a lot on the radio. 

When I do a concert, I design the concert. I include new things, 

old things, classic things, brand-new songs. My job as an artist is 

to bring all of those things together and to create a balance. And 

the radio has helped me do that. 

Mr. ISSA. Right. 

Ms. COLLINS. It still means that I have to be—must be paid for 

my performing. 

Mr. ISSA. Mr. Moore, in your case, has a station ever been willing 

to promote your pieces, or do they prefer to play the best-known 

pieces——

Mr. MOORE. No, no. 

Mr. ISSA [continuing]. As they like? 

Mr. MOORE. No, no. 

I just—well, last year, I have been promoting a new album. And 

you would be surprised, if you don’t have the album, with some of 

the people I have had on there. 

114

But, no, radio—and I am pretty sure that my dear colleague next 

to me—they didn’t give—I don’t think they gave—I have to believe, 

until I am straightened out, that they didn’t give me the airplay. 

Mr. ISSA. Okay. So the real bottom line is that they play what 

sells for them. They don’t play what you would like to have promoted. 

Mr. MOORE. Oh, no. No, no, no, no. No, that is true. 

Mr. ISSA. As a general rule. 

Mr. MOORE. That is true. 

Mr. ISSA. Well, that has been my finding. 

Now, of course, part of the problem is I want to listen to oldies 

stations. The music that I like is the music that they are not making anymore for the most part. And that would be one of my questions for Mr. Warfield. 

How in the world do you justify the promotional value of an 

oldies station if, in fact, you say you are promoting, but these are 

songs that are well-established and that is exclusively what is 

being played on lots and lots of AM and FM stations? 

Mr. WARFIELD. Within our company, we don’t have any oldies 

stations. 

But I will say to Mr. Moore—we had a brief conversation before 

this session started this morning—we do have a radio station in 

New York City, WBLS, that is a contemporary music station. But 

we have an air personality on on Sunday mornings, Mr. Hal Jackson, who has been a broadcaster for nearly 70 years who—I do 

have a copy of Mr. Moore’s album because that is something that—

his new material, as well as his better-known material, was played 

on that program. And we did give the audience an opportunity to 

hear that. So——

Mr. ISSA. Okay. 

Mr. Chairman, could I ask one follow-up question if there is 

time? Thank you for your indulgence. 

Because I think it is clear that we are going to deal with the disparity that exists between different forms of communication of people’s performances, hypothetically, Mr. Warfield, if, in fact, you had 

the right that you presently have for your stations for the first 12 

months of a new album, of a brand-new song, and you could play 

that for free, would that be a congressional way and an industry 

way of encouraging you to play the new—even if it is re-mastered—

but, in fact, clearly promote what I think Mr. Moore and perhaps 

Ms. Collins would like to have promoted? 

Mr. WARFIELD. The decision of what gets played on the various 

radio stations in our company is made on a market-by-market 

basis——

Mr. ISSA. No, no. I was only asking a very narrow question. 

Mr. WARFIELD. I, I——

Mr. ISSA. Would you tend to play free versus pay because there 

would be a financial benefit to your promoting new? 

Mr. WARFIELD. I think that becomes a matter, again, for each individual market. It can——

Mr. ISSA. No. I am only asking you. 

Mr. WARFIELD. I would say I would leave that decision to the 

local programmers. I don’t get involved in programming decisions 

in music. 

115

Mr. ISSA. Thank you, Mr. Chairman. 

I guess I am not going to be entitled to an answer of whether 

free sells better than cost. [Laughter.] 

But I think we have established that in other hearings. 

Ms. COLLINS. Free. 

Mr. BERMAN. It is a willing buyer, willing seller situation. 

Ms. COLLINS. Yes, yes, yes. 

Mr. KELLER. Mr. Chairman? 

Mr. BERMAN. I was going to let anyone else who, until the last 

one drops. [Laughter.] 

Mr. Keller, the gentleman from Florida. 

Mr. KELLER. Thank you. 

Mr. Hodes, if you had made it big during your days as a performer and songwriter, would you be stuck with the low-end Government job that you are stuck with right now? [Laughter.] 

Mr. HODES. Well, I did make it big. Here I am. 

Mr. KELLER. All right. [Laughter.] 

We are happy you are here, at least that side is, I am sure, 

but—— [Laughter.] 

Mr. HODES. That is okay with me. 

Mr. KELLER. Just teasing. I am just teasing. 

Mr. BERMAN. Us and the country. 

Mr. KELLER. And the country. Fair enough. 

Ms. Peters, you have talked about making sure the performers 

are paid royalties. Do you think those royalties should be paid in 

cases where their music is played in restaurants, bars, retail shops, 

shopping centers, and sporting venues? 

Ms. PETERS. Ultimately, yes. But the focus today is on radio over 

the terrestrial broadcasts. But I have always supported a broad 

performance right. 

Mr. KELLER. And should they be paid when their music is played 

in small-and medium-sized radio stations? 

Ms. PETERS. I think it is the marketplace. The issue is we are 

really talking about equitable remuneration. And equitable means 

under the circumstances; willing buyer, willing seller, and the circumstances that both find themselves. 

Mr. KELLER. Right. 

But what I am getting at is you have heard from Mr. Berman 

earlier today, who is an acknowledged leader and well-respected on 

this issue, that when it comes to making sure performers are paid 

royalties, he is not going to be going after restaurants, bars, retail 

stores, sports venues, shopping centers, and small radio stations. 

And I just want to know if there is any sound basis in the copyright law for making that distinction. 

Ms. PETERS. I would suggest to you that every step forward in 

expanding the performance right is a positive step. And it is up to 

Congress to decide the scope of the step it is willing to take at any 

particular time. 

Mr. KELLER. Well, thank you. You sound like the politician here. 

[Laughter.] 

Let me go to Ms. Collins. 

You have heard from Mr. Warfield that if they have to pay performers these royalty fees, then maybe they will just switch to 

other formats like talk radio——

116

Ms. COLLINS. Well, they would have to pay the talkers. 

Mr. KELLER. Do you think that is realistic that a top-rated, top40 station is going to switch and try to compete with Rush 

Limbaugh? 

Ms. COLLINS. Well, I don’t think that is the question. 

I think people want to hear music. And I think if the stations 

are going to broadcast music, then they need to pay the performer. 

So I don’t—I think, again, it is a market-driven question. It is 

a question of what advertisers want. It is what happens between 

the buyer and the seller. And we don’t want to be left out in the 

cold. 

Mr. KELLER. And I don’t want to cut you off, but I only have 5 

minutes here. 

And I agree. I think a marginal-rated station may do that, but 

you are not going to have the number one-rated top-40 station 

switch and try to do talk radio, especially when the market is flooded as it is. 

Mr. Warfield, in your testimony, you talked about broadcasters 

paying songwriters $450 million a year in direct performance royalty, yet they are paying the performers zero. They get, instead, indirect promotional benefit by playing their records, you suggest. 

Can you please explain why, in the broadcasters’ rationale, it is 

okay to pay the songwriters for their copyrighted works but not 

okay to pay the performers? 

Mr. WARFIELD. The songwriters are not benefiting actually from 

the sale of the records that is generated by the airplay. The same 

way that the artist is benefiting, the record label is benefiting 

through the sale of the product——

Mr. KELLER. I get it. 

Mr. WARFIELD [continuing]. The composer——

Mr. KELLER. Well, the songwriter benefits from the record sales, 

too. He gets a certain amount for each record sold. 

Let me go to my next question. Can you explain the distinction, 

Mr. Warfield, as why it is okay to pay the performer in terms of 

satellite radio, but not with respect to terrestrial radio? What is the 

distinction that makes it okay for you guys not to pay the performer? 

Mr. WARFIELD. I think that there are three distinctions: one, digital; secondly, the interactivity of the new streams that are out 

there; and the fact that they are also subscription. I think there are 

three distinctions that separate these new platforms from terrestrial broadcasting. 

Mr. KELLER. I thought you were going to say it is because we do 

things like public interest programming and public service announcements and that sort of thing. That is not your argument for 

why you shouldn’t be treated differently from satellite radio? 

Mr. WARFIELD. Well, we still do that. We are required to do that. 

And we are happy to do that. And we will continue to do that. 

Mr. KELLER. Okay. 

Ms. Collins, you are a songwriter, as well as a performer? 

Ms. COLLINS. I am. 

Mr. KELLER. Do you benefit from increased record sales? 

Ms. COLLINS. By the play on the radio? 

Mr. KELLER. Yes, ma’am. 

117

Ms. COLLINS. I think it is a large subject. I think everything 

interacts. But if one of my income streams has been cut completely 

off for 50 years, you can see where my business and my personal 

life and my health care as I grow older is suffering. 

Mr. KELLER. Thank you. 

My time has expired, Mr. Chairman. 

Mr. BERMAN. I thank the gentleman. 

And, just at some point after Mr. Cohen questions, I do want to 

come back to the register of copyrights on the issue of when a 

record is sold, you know, retail, what the compensation stream and 

whom it goes to, just to clarify it for the record. 

The gentleman from Tennessee, Mr. Cohen? 

Mr. COHEN. Thank you, sir. 

Mr. Keller asked one of the questions I was going to ask and it 

was of Mr. Warfield. And I still don’t think we got the answer. But 

the belief in why songwriters should get paid and a singer 

shouldn’t when you play that song. 

Mr. WARFIELD. The system has been in place for the last 80 

years. Certainly, it is designed to support the creator of the music. 

You know, the copyright is certainly designed to promote the 

progress of science and useful arts. 

And, you know, absent a performance tax to date, there is certainly no lack of sound recordings being produced. Certainly, as I 

have indicated in this industry——

Mr. COHEN. I know that, but what is the difference? Why should 

Mr. Porter get money when you play ‘‘Soul Man’’ and Mr. Hayes 

get money, and not Mr. Moore? 

Mr. WARFIELD. Well, the benefit to Mr. Moore and to the record 

label accrued to them upon the airplay, which then generated the 

record sales, which then benefited the label——

Mr. COHEN. But that is a by-product. Why should Mr. Porter and 

Mr. Hayes get paid also when they buy that record? The songwriters get paid every time. 

Ms. COLLINS. Every time. 

Mr. COHEN. They always get paid. 

Ms. COLLINS. Always. 

Mr. COHEN. It is only the singer. And there are more singers 

that, to be honest with you, sir, that are minorities who I represent 

than there are songwriters——

Mr. WARFIELD. It is——

Mr. COHEN. The songwriters oftentimes are Caucasian, more 

often than not, and a lot of the performers are African-American. 

They are minorities. And they are really, because of your system, 

they are getting shortchanged. 

Mr. WARFIELD. I wouldn’t say because of our system. I think 

what we need to also acknowledge here is that there is a long history of African-American and minority performers that have been 

mistreated by the record labels and not necessarily due to any 

fault——

Mr. COHEN. So that is wrong—because that is wrong——

Mr. WARFIELD. And that argument—you are absolutely right, but 

that is really an issue with the record labels and their artists that 

have helped them generate significant revenues over the years——

Mr. COHEN. No, sir. 

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Mr. WARFIELD [continuing]. Rather than——

Mr. COHEN. Excuse me, if I can? 

It is the fact that when you play the song on the radio the minority guys don’t get paid. It is the Stoller and Lieber, or whatever 

their names are. They get paid, the songwriters. 

Ms. COLLINS. Always. 

Mr. COHEN. But the guys in Rocky Joes don’t get paid, or Smokey Joes, or whatever it is. 

Ms. COLLINS. That is right. 

Mr. COHEN. They don’t get paid when they sing it. It is the guy 

that writes it, the Tin Pan Alley guy. And you and I should be on 

the same team. 

Mr. WARFIELD. I am on the side of the team that has built a very 

successful business for the last 80 years and don’t find—I think 

that, on your argument, there certainly needs to be something addressed with the record labels themselves. That is not a responsibility that should be laid at the feet of the radio broadcasters. 

Mr. COHEN. Ms. Collins, let me ask you. You have listened to Mr. 

Warfield here today. Can you see both sides now? [Laughter.] 

Ms. COLLINS. You mean, rows and flows of angel hair? We need 

a little music here. 

Mr. COHEN. I have got more time. Keep going. [Laughter.] 

Ms. COLLINS. You know, the issue of the performer as a misused 

and abused section of the entertainment population is a very important one. It is true. All writers get paid all the time. 

Mr. COHEN. Right. 

Ms. COLLINS. They get paid when the song goes on the radio. 

They get paid when I do a concert including my songs or other people’s. They get paid when the record sells. 

So they are getting the double dip—that is where the double dipping is happening in a way. That is equitable. I agree with that. 

I approve of that. 

But the performer, the artist, is treated badly. 

I was saying before, you know, it is sort of like, you know, we 

still, all of us performers, for the most part, go in the back door, 

through the kitchen. And I think of this as a kitchen route. You 

know, through the funny little entrances which you can’t find to do 

the show. This is one of those situations. 

I don’t know why it has happened. I think the lobby is very 

strong. 

Yes, it is very profitable not to pay the artists. Not for the artists, but it is very profitable. In 80 years, it has got to be extremely 

profitable. 

Mr. COHEN. You know, Leonard Cohen is a great songwriter, and 

he was blessed with a great voice, too. But, nevertheless, when 

Jennifer Warnes sings his songs, they are better. And shouldn’t 

Jennifer Warnes get paid for that? 

Ms. COLLINS. She certainly should. And he should and does. 

Mr. COHEN. Mr. Warfield, you said you like the system like it is 

today. What if we passed a bill that said the songwriters don’t get 

paid when they get their songs played——

Ms. COLLINS. Yes, let us change places. 

Mr. COHEN. Yes. Would you like that better? 

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Mr. WARFIELD. I sort of like it the way it is right now. [Laughter.] 

I am not for advocating any changes, as I said here today. Thank 

you. 

Mr. COHEN. Thank you, sir. 

And thank all the panelists. 

And I want to thank—I haven’t thanked the Chairman. And this 

is like the Academy Awards when you are up here. You have to 

thank all the members of the Academy and my father—— [Laughter.] 

Mr. BERMAN. And don’t forget your family. 

Mr. COHEN. Yes. My father thanks you, my mother thanks you, 

my brother thanks you, and I thank you. 

Mr. BERMAN. Just to, I guess, to recognize myself, and then—

first, Mr. Warfield, I am old enough to remember a time when the 

broadcasters did want to change the way the songwriters got paid 

for their music. They wanted to reduce it. They wanted to change 

the nature of the license. It was a major struggle here in the late 

1980’s. 

So you may think it is just fine now, but there was a time when 

the industry didn’t think it was so fine. 

I would just like to ask the register to clarify one, this issue of 

who gets paid and when in, you know, short, simple terms. I think 

it has been said but it is—these things get complicated, and it is 

good to repeat it. 

And also, Mr. Coble had a question prepared, but he had to go 

to his hearing. If there was a performance right, if we got rid of 

that exemption for terrestrial radio, why doesn’t the money just go 

to the labels? What is the mechanism by which that money would 

be distributed? 

So if you could just deal with those two issues. 

Ms. PETERS. Okay. Let us start with the first one, who gets paid. 

And actually, your colleague knows the answer as well as I do. 

Composers, lyricists, musical composition copyright holders have 

a full panoply of rights. And, certainly, the reproduction and distribution right is implicated in the making and sale of a phono 

record. 

And they, actually, by statute, get paid subject to a compulsory 

license. It is called a mechanical compulsory license, section 115. 

It can be voluntarily negotiated, but because the mechanical license 

has a rate, it is bargained down. 

But there is a payment to every composer and every music publisher for every recording that is sold in the marketplace. And just 

as there is for every, you know, for most performances. 

The beauty of section 114 that deals with performance rights for 

sound recordings is that there is direct payment to performers. The 

income does not funnel through the record companies. 

There are representatives here of SoundExchange. The money 

goes to SoundExchange, and it is distributed to the record producers and to the performers. So it is not, as is typical with record 

sales, funneled through the record companies. 

Mr. BERMAN. Mr. Issa? 

Mr. ISSA. Thank you. 

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You know, I spent a couple years in business. And I finished up 

my last few minutes debating the relative merits of free versus 

pay. And I was kind of confounded that the broadcasters wouldn’t 

have a fairly simple, you know, decision on which they prefer, because the youth of America certainly do. 

And I would like to touch on that for a moment. 

It is very clear over the last decade, the 12 years, actually, since 

the 1995 act, that free trumps pay. It is clearly why we have had 

to deal with the copyright issues. It is clearly why those evil record 

labels that pay the artists nothing have seen their ability to pay 

them that nothing go down pretty precipitously. [Laughter.] 

You know, there is no more lose lose than there is no money coming in, there is no money going out. Record sales have been dropping. And they have been dropping not because people listen to less 

music but because music is ripped and then ripped off. 

When your industry improves from analog to digital, you are 

going to be able to deliver far better broadcasts, while you still 

have a little loop in the system and one that we are very aware 

of, which is that I can record your terrestrial broadcast. I can 

record that all I want. 

There is no legal prohibition on my taking the analog. There is 

no legal prohibition on my taking the metadata, the digital information that is going to tell me that it is Mr. Moore’s or Ms. 

Collins’s music. It is going to tell me everything I need to know. 

It will probably give me the words so I can sing along because you 

will be broadcasting the information for karaoke machines. 

All of that is going to be, under the current statutes—and correct 

me if I am wrong; that is why we have the Copyright Office here—

it is going to be all free for me to download digitally because today 

terrestrial broadcast has essentially a free license for me to buy a 

piece of equipment to record that all I want. 

Have I missed anything from the standpoint of current copyright? 

I mean, that is correct. I see you are shaking your head so——

Mr. WARFIELD. Oh, for me? 

Right now, with HD-radio, which is in its infancy in our industry, there are no pieces of hardware at this point that allows that 

type of recording, as a matter of fact——

Mr. ISSA. Well, I can tell you that the consumer electronics industry is well-represented here for a reason, because clearly that 

is a nanosecond away. 

I have recused myself from the antitrust hearings on XM and 

Sirius because a company that I founded is now a hardware supplier in that industry, even though I don’t own any stock. So I am 

acutely aware that what is happening in Sirius and XM is not a 

technological—as a matter of fact, it is easier to do on your music, 

which is not encrypted and encoded and requiring a separate chip. 

In fact, there is no reason it couldn’t be done today. And there 

is no reason that it actually—that the equipment doesn’t exist 

other than, to be honest, you are not broadcasting enough stations 

in high enough, you know, supply, if you will. But it is only a matter of 6 months, 1 year, 2 years. It is an inevitability. 

121

And I am the former chairman of the Consumer Electronics Association. I am definitely here to tell you we will see those at CES, 

if not this January, then next January. 

And I am proud of the industry I came from. I think it is a very 

innovative industry. However, the songwriters and the musicians 

are a very innovative group. 

And, in fact, you are sitting here today saying to me your industry cannot afford or doesn’t owe anything for the huge amount of 

content that you play every day and that, under existing laws, if 

this body, this literal Committee, doesn’t take action, will be broadcast in high-definition, very nice sound quality with digital data so 

you know what song it is to the listeners that will be recorded 

within a year or two and, as a result, CD sales that you claim to 

be promoting will plummet probably to zero. 

And you are here today saying you can’t afford to do anything 

about either problem, is that correct? 

Mr. WARFIELD. That is not a problem that we are facing right 

now. It is just not available in our industry——

Mr. ISSA. It is not your problem today. 

Mr. WARFIELD. It is not an issue within our industry at this 

point because they are not——

Mr. ISSA. When that recording device is on the market in a January Consumer Electronics Show this year, next year January, will 

it be your problem? And what will you do about it? 

Mr. WARFIELD. I think that would be an industry concern at that 

point. I don’t know what we would do. 

Mr. ISSA. Okay. So, you know, look, I am a friend of the broadcaster, maybe a little more, little less than Mr. Coble. But I have 

to ask, if we don’t act, will we destroy an industry that you claim 

you want to promote if we don’t deal with both of those problems 

and do it in a timely fashion? 

And I know my time is expired. And, Mr. Chairman, thank you 

for your indulgence. 

I want us to continue working on this because I think you are 

here today. I hope that we have individual broadcasters back here 

so they can answer those two questions of what happens when all 

of their high-quality music is recordable with metadata and, in 

fact, the record industry goes from a shadow of what it once is to 

nothing, then who—won’t the songwriters also be losing? 

Thank you, Mr. Chairman. I yield back. 

Mr. BERMAN. I think we are about to close. I am first going to 

yield half a minute to the gentleman from Florida, Mr. Keller. 

Mr. KELLER. Thank you, Mr. Chairman. 

I want to thank all of our witnesses for being here. I am still confused, but on a much higher plane, having been through this. 

[Laughter.] 

Mr. Warfield, you have been there, the only one out of five espousing your position, the broadcasting position, so you have appropriately earned your last name today. [Laughter.] 

And I want to thank you especially. [Laughter.] 

I thank all of the witnesses. I tried to be fair with all of you, to 

get your all sides, and I think we brought those out. And it means 

a lot that you took time out of your busy schedule to be here, and 

especially my esteemed congressman, Mr. Hodes. And I wish I had 

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your creative background, as well as your political skills. I want to 

thank you for being here. 

And I will yield back the balance of my time. 

Mr. BERMAN. I thank the gentleman. 

I might point out that we did try to get another witness who was 

opposed to this concept of compensating for the performance right, 

but Mr. Warfield you were a good warrior. [Laughter.] 

And other than anything else the panel wishes to say to us or 

each other, I am prepared to—is there any——

Mr. ISSA. Can they make a deal here today? [Laughter.] 

Mr. HODES. Mr. Chairman? 

Ms. COLLINS. I——

Mr. BERMAN. Ms. Collins? 

Ms. COLLINS [continuing]. Respectfully just want to say that I am 

very grateful to be here. That you have all made yourselves available to this issue, put in so much time on thinking about it, and 

I know the future of music is going to benefit from this meeting 

today. Thank you. 

Mr. BERMAN. Paul? 

Mr. HODES. We have a tradition in this country of change. And 

sometimes change is a four-letter word. But the broadcast industry 

has enjoyed a tremendous benefit for 80 years, and I believe the 

change is coming. 

If it is any consolation to Mr. Warfield, when the broadcast industry pays a fair and equitable performance royalty, the richness 

of our music in this country will be enhanced. Performers will do 

better. By doing better, they will make more and better music, and 

ultimately, that will inure to the benefit of the broadcasters. 

So I am hoping that the broadcasters can look at the bright side 

because there is one, even though change is tough. 

Mr. BERMAN. Did I get a sighting from my right here? 

Mr. COHEN. Yes. Without conjuring up images that they shoot 

horses, don’t they, I would like to ask one last thing. 

Mr. Warfield, if we pass something to give songwriters money, 

that would cause the broadcasters——

Mr. HODES. Performers. 

Mr. COHEN [continuing]. Performers—excuse me, I am sorry—

performers money, that would cost you some of your additional 

costs, right? 

Mr. WARFIELD. Correct. 

Mr. COHEN. And then would you just reduce your costs—your 

profits, or would you charge the advertisers a little bit more 

money? 

Mr. WARFIELD. In some cases, broadcasters will not have the opportunity to increase their revenue generation from advertising. 

And, unfortunately, there is this perception that all broadcasters 

are, you know, making a lot of money. And, unfortunately, some 

broadcasters, quite honestly, would possibly have to go out of business or to sell their radio stations. 

Mr. COHEN. You don’t think you could charge a little more advertising? It is not a lot of money. You could charge just a little more 

and then the public would pay for it when they buy goods, and the 

public, you know, that is where it ends up being? 

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Mr. WARFIELD. We have an industry that from 2001 through 

2006, as evidenced in many trade articles, is absolutely flat with 

no revenue growth whatsoever. So to counter that, to believe that 

we would be able to generate additional revenue through higher 

rates, is not supported by the performance of the industry over the 

last 6 years. 

Mr. COHEN. Okay. Thank you, sir. 

Mr. BERMAN. The hearing of the Subcommittee is adjourned. 

Thank you all very much. 

[Whereupon, at 1:16 p.m., the Subcommittee was adjourned.]

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