Amicus Curiae Brief — Eldred v. Ashcroft

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IN THE Banal t

Supreme Court of the United States

| ERIC ELDRED, et al.

Petitioners,

JOHN D. ASHCROFT,

In his official capacity as Attorney General,

Respondent.

: On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF AMICI CURIAE SYMPHONIC

AND CONCERT COMPOSERS JACK BEESON,

CHEN YI, JOHN CORIGLIANO, JOHN DUFFY,

HAROLD FARBERMAN, PHILIP GLASS,

ADOLPHUS HAILSTORK, JENNIFER HIGDON,

LIBBY LARSEN, TANIA LEON, STEPHEN

PAULUS, GEORGE ROCHBERG, NED ROREM,

AUGUSTA READ THOMAS, MELINDA WAGNER

AND RICHARD WERNICK

IN SUPPORT OF RESPONDENT

I. FRED KOENIGSBERG *

GAELA K. GEHRING FLORES

WHITE & CASE LLP

1155 Avenue of the Americas

New York, NY 10036-2787

(212) 819-8200

* Counsel of Record Attorneys for Amici Curiae

j WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTERESTS OF AMICI CURIAE ...........ccccccesesceeeeeeesees

SUMMARY OF ARGUMENT

ARGUMENT

I. RECOGNITION OF, AND REMUNERA-

TION FOR, THE LIFE WORK AND

LEGACY OF CREATORS OF SYMPHONIC

AND CONCERT MUSIC IS USUALLY

LONG-DELAYED

THE CTEA RATIONALLY PROMOTES

THE PROGRESS OF SCIENCE AND

USEFUL ARTS BY ALLOWING FOR FAIR

COMPENSATION AND ENCOURAGING

CREATIVITY, INVESTMENT, PRESERVA-

TION, PROMOTION AND DISSEMINA-

TION IN FIELDS IN WHICH AN ARTIST'S

WORK IS RECOGNIZED VERY LATE IN

LIFE OR POSTHUMOUSLY

A. The CTEA Provides Fair Compensation

for the Enrichment of American Culture

through Symphonic and Concert Musical

Re iiditaiiciiatmmatendensnenemecanestnsninnteeesianiltinn

B. The CTEA Promotes American Culture

by Extending Copyright for Existing

Symphonic and Concert Music

1. The CTEA Ensures a Proper Legacy to

Cre COENBOSST'S FECIS....cccccccccccccccccesesecese

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TABLE OF CONTENTS TABLE OF AUTHORITIES

Page CASES Page

2. Royalties from Existing Works Support Mazer v. Stein, 347 U.S. 201, 219 (1954).............. 23

Emerging Composers and Their New

Welle canncscssiansuansiiiilensteesiaasdiaditiiaasasiiadia 17 CONSTITUTIONAL PROVISIONS AND

STATUTES

3. Royalties from Existing Works En-

courage Composers’ Heirs and Others

to Invest in, Promote and Disseminate

Sts Ce, GR, By BG, Gi, Bacccnsccsnesscesccsssesevcssesesssees 9

Sonny Bono Copyright Term Extension Act of

1998 (“CTEA”), Pub. L. No. 105-298, 112

ee Cn cnicdetinttenteineanieee 20

EE ee ne x

SIE TALEO ccctcecenecnnstmnsinatiieeianidieiadiidedmeana nn 22

LEGISLATIVE MATERIALS

S. REP. NO. 104-315 (1996) .............ccecccseeeeeeeeeee 13, 14, 16

H.R. REP. NO. 105-452 (1998) ...........ccccccccecceeeeeeees 14

The Copyright Term Extension Act of 1995:

Hearings on S. 483 Before the Senate Comm. on

the Judiciary, \04th Cong. (1995)......... 13, 14, 15,21, 22

Preservation Legislation: Hearing on H.R.

989, HR. 1248 and HR. 1734 Before the

House Subcomm. on Courts and Intellectual

Prop. of the House Comm. on the Judiciary,

re 11,17

MISCELLANEOUS

THE FEDERALIST No. 43 (James Madison) ............ 23

NICOLAS SLONIMSKY, LEXICON OF MUSICAL

INVECTIVE: CRITICAL ASSAULTS ON COM-

POSERS SINCE BEETHOVEN'S TIME (2d ed.

Peele ctitaseansnsensseseasevsccsvsvesscccsnscesepsevesescesccsevesscece 10, 16

Robert T. Jones, /ntroduction, at http://www.

EEIIUIIINT cnccescssesscsssecevescssscsssscsoccceseseeccces 12

Jan Swafford, “Charles Ives: A Life With

Music” (1998), available at hitp://www.

Charlesives.org/O2bi0. Nt ...........cccceeeeeeeeeeeeeeees 11,18

TABLE OF AUTHORITIES—Continued

The American Music Center, AMC Grant Pro-

grams, The Aaron Copland Fund for Music

Performing Ensembles Program Guidelines, at

http://www.amc.net/resources/grants/performi

GRE ITED cccssessssesssssssecsscssnssunnnnscsnsssnsengpsccsessnesaneses

American Treasures of the Library of Congress,

God Bless America, at http://www.loc.gov/

exhibits/treasures/trm0O 19. Atml.............c00cceeeeeeees

ASCAP Concert Music: Programs Administered

by ASCAP’s Concert Music Department, at

http://www.ascap.com/concert/programs.htm] ..

The ASCAP Foundation: Where Music Grows,

The ASCAP Foundation Timeline, at hitp://

www.ascapfoundation.org/timeline2.html.........

Englewood Hospital and Medical Center, at

http://www.englewoodhospital.com/Pages/dizz

OEE ccsespecnmscssasnsnnseremenscsanmenmmetansincsnnsasnse

IN THE

Supreme Court of the United States

No. 01-618

ERIC ELDRED, et ai.,

Petitioners,

Vv.

JOHN D. ASHCROFT,

In his official capacity as Attorney General,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF AMICI CURIAE SYMPHONIC

AND CONCERT COMPOSERS JACK BEESON,

CHEN YI, JOHN CORIGLIANO, JOHN DUFFY,

HAROLD FARBERMAN, PHILIP GLASS,

ADOLPHUS HAILSTORK, JENNIFER HIGDON,

LIBBY LARSEN, TANIA LEON, STEPHEN

PAULUS, GEORGE ROCHBERG, NED ROREM,

AUGUSTA READ THOMAS, MELINDA WAGNER

AND RICHARD WERNICK

IN SUPPORT OF RESPONDENT

INTERESTS OF AMICI CURIAE '

Jack Beeson, Chen Yi, John Corigliano, John Duffy,

Harold Farberman, Philip Glass, Adolphus Hailstork, Jennifer

' This brief is filed with the written consent of all parties. No counsel

for a party authored this brief in whole or in part. The only entity, other

than the named amici curiae and their counsel, to make a monetary con-

tribution to the preparation and submission of this brief is the American

Society of Composers, Authors and Publishers (hereinafter “ASCAP”).

Higdon, Libby Larsen, Tania Leén, Stephen Paulus, George

Rochberg, Ned Rorem, Augusta Read Thomas, Melinda

Wagner and Richard Wernick submit this brief as amici

curiae in support of Respondent pursuant to Rule 37 of the

Rules of the Court. All of the amici are distinguished

composers of symphonic and concert (sometimes called

“serious” or “classical”) music, and include four Pulitzer

Prize winners and Oscar, Golden Globe, Emmy and Grammy

winners.

Jack Beeson is best known for his works, Hello Out There,

a one act chamber opera produced by the Columbia Theater

Associates in 1954, and Lizzie Borden, commissioned by the

Ford Foundation for the New York City Opera and

premiering in 1965. He is presently MacDowell Professor of

Music Emeritus at Columbia University, where he taught for

half a century.

Chen Yi was born in China. After a period of enforced

labor during the Cultural Revolution (during which time

classical music was forbidden), she became a concertmaster

and composer with the Beijing Opera Troupe. She continued

her studies in the United States, receiving her Doctor of

Musical Arts degree from Columbia University in 1993. She

has been appointed Composer-in-Residence for the Women’s

Philharmonic, Chanticleer and the Aptos Creative Arts Pro-

gram in San Francisco, and has taught at the Peabody

Conservatory and the UMKC Conservatory (as Cravens/

Millsap/Missouri Distinguished Professor in Composition).

In 2001, she received the Ives Living Award (2001-2004)

from the American Academy of Arts and Letters. She also

has received the Lili Boulanger Award and the CalArts

Alperts Award for Music, fellowships from the Guggenheim

Memorial Foundation, the American Academy of Arts and

Letters, and grants from the National Endowment for the

Arts, the Mary Flagler Cary Charitable Trust, the Fromm

Music Foundation and the Koussevitzky Foundation.

John Corigsiano won the Oscar in 2000 for best film

score for [he Red Violin, and the Pulitzer Prize for his

Symphony No. 2 in 2001. Symphony No. 1, Corigliano’s

personal response to the AIDS crisis, won music’s Nobel

Prize—the 1991 Grawemeyer Award for Best New

Orchestral Composition.

John Duffy, among his numerous other awards, has won

two Emmys, an ASCAP award for special recognition in film

and television music, a New York State Governor’s Art

Award and the (New York City) Mayor’s Award of Honor for

Arts and Culture. He is founder of Meet the Composer, an

organization dedicated to the creation, performance, and

recording of music by American composers.

Harold Farberman’s very first work, Evolution, written in

1954, has been recorded four times, once by Leopold

Stokowski. In 1956 his Quartet for Flute, Oboe, Viola and

Cello received first prize in the New England Composer’s

Competition. In 1957 Greek Scene was chosen to represent

the United States in an International Composer’s Symposium

held in Paris. For his dedication to the music of Charles Ives

through performance and recordings, Farberman was awarded

the Ives Medal. He is the founder of the Conductors Guild

and also created the Conductors Institute, the premiere

training ground for young conductors from around the world.

Philip Glass has collaborated with a variety of artists in a

range of media including opera (Satyagraha, Akhnaten, The

Making of the Representative for Planet 8, The Fall of the

House of Usher, Hydrogen Jukebox and The Voyage), film

(Koyaanisqatsi, Mishima, Powagqatsi, A Brief History of

Time, Candyman, The Thin Blue Line, Kundun, Dracula, The

Truman Show), dance (A Descent into the Maelstrom, In the

Upper Room), theatre works (The Photographer, 1000 Air-

planes on the Roof, The Mysteries, What's so Funny?,

Orphée, La Belle et La Béte, Les Enfants Terribles), coop-

erative recording projects (Songs from Liquid Days,

Passages), orchestral works (/taipu, Symphony No. 2,

Symphony No. 3, the “Low” and “Heroes” symphonies,

Symphony No. 5—Requiem, Bardo and Nirmanakaya). In

2000, he was awarded the George Peabody Medal for

Outstanding Contributions to Music in America. His original

music for the Truman Show won a Golden Globe award for

Best Score in 1999.

Adolphus Hailstork’s Out of the Depths won the 1997

Belwin-Mills Max Winkler Award presented by the Band

Directors National Association; his American Guernica

received first prize in the Virginia College Band Directors’

1983 national contest; and Mourn Not the Dead received the

1971 Ernest Bloch Award for choral composition. He is a

Professor of Music and Eminent Scholar at Old Dominion

University.

Michael Hersch has received the American Composers

Prize (1997), the Guggenheim Fellowship (1997), the Prix de

Rome (2000) and the Berlin Prize (2001). He also has

received awards from the American Academy of Arts &

Letters, the New York Youth Symphony’s First Music prize,

two Meet the Composer grants, three ASCAP Young

Composer Awards and five ASCAP Foundation grants. He

was selected as the Pittsburgh Symphony Orchestra’s

Composer of the Year for the 2002-2003 season.

Jennifer Higdon’s work, Shine (commissioned by the

ASCAP Foundation), was named Best Contemporary Piece of

1996 by USA Today in their year-end classical picks. She has

received awards from the Guggenheim Foundation, the

American Academy of Arts & Letters, the Pew Fellowship in

the Arts, the International League of Women Composers,

Composer, Inc., the University of Delaware New Music

Competition, the Louisville Orchestra New Music Search, the

Cincinnati Symphony's Young Composer's Competition,

NACUSA, and ASCAP. She. hag received grants from the

National Endowment for the Arts, Meet-the-Composer, and

the Pennsylvania Council on the Arts. She is currently on the

composition faculty of the Curtis Institute of Music.

Libby Larsen has received numerous awards, including a

1994 Grammy as producer of the CD The Art of Arleen

Augér, an acclaimed recording that features Larsen’s Sonnets

from the Portuguese. Her opera Frankenstein, The Modern

Prometheus was selected as one of the eight best classical

music events of 1990 by USA Today. She was the first

woman to serve as a resident composer with a major

orchestra, and has held residencies with the California

Institute of the Arts, the Arnold Schoenberg Institute, the

Philadelphia School of the Arts, the Cincinnati Conservatory,

the Minnesota Orchestra, the Charlotte Symphony and the

Colorado Symphony. In 1973, she co-founded (with Stephen

Paulus) the Minnesota Composers Forum, now the American

Composers Forum. _

Tania Leén was born in Havana, Cuba and came to the

United States in 1967. She became a founding member and

the first musical director of the Dance Theatre of Harlem in

1969. Her orchestral work Horizons was written for the NDR

Symphony Orchestra in Hamburg and was premiered there in

July 1999. Her opera Scourge of Hyacinths was commis-

sioned by the Munich Biennale in 1994, where it won the

BMW Prize as best new work of opera theatre. She has

received awards for her compositions from the American

Academy of Arts and Letters, the National Endowment for

the Arts, Chamber Music America, the Lila Wallace/Reader’s

Digest Fund, NYSCA, ASCAP, and Meet the Composer,

among others. She is a Professor of Music at Brooklyn

College.

Stephen Paulus’ opera, The Postman Always Rings Twice

was the first American opera to be performed at the

Edinburgh Festival. He has written five other operas and has

received Guggenheim and NEA Fellowships, as well as

commissions from the New York Philharmonic, Cleveland

Orchestra, Juilliard Opera Center, The Festival Singers and

many others. He is co-founder and a current Board Vice

President of the American Composers Forum, the largest

composer service organization in the world.

George Rochberg’s 1971 Third String Quartet was

critically acclaimed by the San Francisco Examiner as “the

work that defines the attitudes of a generation of composers.”

He is the recipient of numerous awards, grants and fellow-

ships, including the Alfred I. du Pont Award for Outstanding

Conductors and Composer (Delaware Symphony), Elected

Fellow of the American Academy of Arts and Sciences, the

Gold Medal Brandeis Creative Arts Award, the American

Academy of Arts and Letters, First Prize Kennedy Center

Friedheim Award, two Guggenheim Fellowships, the George

Gershwin Memorial Award, and the Fulbright Fellowship.

He taught at Curtis Institute of Music from 1948 to 1954. In

1960, he joined the faculty of the University of Pennsylvania,

where he served as chairman of the Department of Music

until 1968. He retired from teaching in 1983 as Emeritus

Annenberg Professor of the Humanities.

Ned Rorem’s suite Air Music won the 1976 Pulitzer Prize

in music. The Atlanta Symphony recording of the String

Symphony, Sunday Morning, and Eagles received a Grammy

Award for Outstanding Orchestral Recording in 1989. He has

been the recipient of a Fulbright Fellowship (1951), a

Guggenheim Fellowship (1957), and an award from the

National Institute of Arts and Letters (1968).

Augusta Read Thomas has received numerous prizes and

awards from, among others, ASCAP, BMI, the National

Endowment for the Arts, the American Academy and

Institute of Arts and Letters, the John Simon Guggenheim

Memorial Foundation, the Koussevitzky Foundation, the New

York Foundation for the Arts, the John W. Hechinger

Foundation, the Kate Neal Kinley Foundation, The Debussy

Trio Music Foundation and Thomas van Straaten, Columbia

University (Bearns Prize), the Naumburg Foundation, the

Fromm Foundation, the Barlow Endowment, Harriett

Eckstein, the New York State Council for the Arts, and

Chamber Music America. She was the recipient of the Third ©

Century Award from the Foundation for a Creative America.

She received fellowships from the Bunting Institute of

Radcliffe College, the Rockefeller Foundation (Bellagio), the

International Rotary Foundation, L’Ecole Normal in Foun-

tainbleau, France, Tanglewood Music Center, the Gaudeamus

Foundation, the Wellesley Composers Conference, and the

Atlantic Center for the Arts and the Aspen Music Festival.

She is currently a Professor on the composition faculty at

Northwestern University and the Composer-in-Residence of

the Chicago Symphony Orchestra.

Melinda Wagner was awarded the Pulitzer Prize in music

in 1999 for her Concerto for Flute, Strings, and Percussion,

and her works have been performed by the Chicago

Symphony Orchestra, American Composers Orchestra, the

Chamber Music Society of Lincoln Center, the New York

New Music Ensemble, and the Society for New Music. She

ig the recipient of numerous honors including fellowships

from the Guggenheim Memorial Foundation and the Howard

Foundation (Brown University), grants from the Illinois Arts

Council and the New York State Council on the Arts, three

ASCAP Young Composer Awards, and resident commissions

from the Barlow Foundation, the Mary Flagler Cary Charit-

able Trust, the Fromm Foundation (Harvard University), and

the Ernst and Young Emerging Composers Fund.

Richard Wernick is Professor Emeritus of the University

of Pennsylvania. He received the 1977 Pulitzer Prize in

music. From 1983 to 1989, he served as the Philadelphia

Orchestra’s Consultant for Contemporary Music, and from

1989 to 1993 served as Special Consultant to Music Director,

Riccardo Muti. He is the only two-time first prize Friedheim

Award recipient, and has been honored by awards from the

Ford Foundation, Guggenheim Foundation, National Institute

of Aris and Letters, and the National Endowment for the Arts.

SUMMARY OF ARGUMENT

The experience of centuries of musical history testifies to

one of the most unhappy realities of symphonic and concert

music: a delay of acceptance and recognition, not to say

remuneration, typically for decades. Our modern musical era

has been no exception;. most composers of symphonic and

concert music today live in relative obscurity and economic

need while creating their life’s work, and only close to death

or after death do they or their heirs start to reap acknowl-

edgment and compensation for their works.

By extending copyright protection for new and existing

works, the Sonny Bono Copyright Term Extension Act of

1998 (“CTEA”), Pub. L. No. 105-298, 112 Stat. 2827, pro-

vides composers of symphonic and concert music the

increased assurance that, even accounting for longer lifespans

and having children later in life, the musical legacy they leave

behind will at least provide sustenance for their spouses, their

children and their grandchildren.

The CTEA’s extension of copyright protection for existing

works also acts to promote the creation of new works of

symphonic and concert music by emerging composers,

because these creators rely on awards, grants, scholarships

and fellowships for financial support. Countless such awards

are funded by royalties collected for older, established works

of symphonic and concert music. The CTEA ensures that

such funding will continue for a reasonable time.

The CTEA further enriches the American rausical heritage

by affording the heirs of symphonic and concert composers

and those who in invest in their works critical additional time

to promote and disseminate the composers’ life work to the

public—a promotion and dissemination which otherwise

might not occur.

All of these facts were presented to Congress as it

considered the CTEA. Congress measured the testimony and

Statements of numerous individuals and entities that

emphasized the need to compensate creators of serious works

of art (including works of symphonic and concert music),

encourage the investment in and further dissemination of

existing works, and promote the creation of new works.

These facts, and the many others Congress considered, leave

no doubt that the CTEA’s extension of copyright protection

to existing works does indeed “Promote the Progress of

Science and useful Arts.” See U.S. Const. art. I, § 8, cl. 8

(“The Congress shall have Power . . . To promote the

Progress of Scierice and useful Arts, by securing for limited

Times to Authors and Inventors the exclusive Right to their

respective Writings and Discoveries.”).

ARGUMENT

I. RECOGNITION OF, AND REMUNERATION

FOR, THE LIFE WORK AND LEGACY OF

CREATORS OF SYMPHONIC AND CONCERT

MUSIC IS USUALLY LONG-DELAYED

Professionals in the creative arts consistently struggle with

the very real possibility that their life’s work may never be

recognized during their lifetimes. Artistic creators run this

risk nonetheless, often sacrificing economic enrichment for

themselves in hopes that their creations may someday provide

for their heirs. This is particularly true for composers of

symphonic and concert music. Centuries of history stand

witness to their particular plight. Countless composers from

the past, today considered the Great Masters of classical

music, died in relative obscurity (and often times, poverty),

and were not fully recognized in the repertoire until long after

their deaths.

History is replete with examples of symphonic and concert

usical works that were originally greeted with scathing

iticism, yet later accepted as masterpieces. Consider the

lowing concerning the derision which first greeted Stra-

nsky’s Rite of Spring, and the forty years it took to

cognize this masterpiece:

A fairly accurate time-table could be drawn for the

assimilation of unfamiliar music by the public and the

critics. It takes approximately twenty years to make an

artistic Curiosity out of a modernistic monstrosity; and

another twenty to elevate it to a masterpiece. . . . With

what precision the law of a forty-year lag in the integral

acceptance of a modern masterpiece operates, was

demonstrated by the wild cheers that greeted Stravinsky

at the performance of Le Sacre du Printemps in Paris on

May 8, 1952, thirty-nine years after its premiére. Pierre

Monteux, who conducted both performances, in 1913

and in 1952, remarked: “There was just as much noise

the last time, but of a different tonality.”

ICOLAS SLONIMSKY, LEXICON OF MUSICAL INVECTIVE:

RITICAL ASSAULTS ON COMPOSERS SINCE BEETHOVEN’S

ME 19 & n. (2d ed. 1978).

The American public is equally slow to recognize its major

mtributors to the repertoire of symphonic and concert

usic. An example is the life work of Charles Edward Ives

874-1954), now considered one of America’s greatest

asters of symphonic and concert music, whose works were

t taken seriously until a decade after his death:

[Charles Ives’] [eJarly works include the precocious

Variations on “America” for organ, written at seven-

teen; it would-find considerable popularity after Ives

died. . . . His epic First Piano Sonata, begun in 1901,

was the first large-scale work in his radical vein, and

cost him at least eight years of effort. It would not find

_ its premiere until 1949. ... ([DJuring his years of

obscurity Ives constantly showed his work to musicians,

hired groups to play over pieces, revised the music based

on what he heard, and had much of his music expertly

copied. Yet, for twenty years the nearly unanimous

reaction of musicians to his music was somewhere

between laughter and outrage. It is no wonder that he

required, as Aaron Copland put it, “the courage of a

lion.” ... Charles Ives died in May 1954. . . . It was not

until a decade later that the musical mainstream really

began to take Ives seriously. |

Jan Swafford, “Charles Ives: A Life With Music” (1998),

available at http://www.charlesives.org/02bio.htm.

The delay in recognition of symphonic and concert com-

posers’ works continues to this day. That delay means not

only a delay in compensation for the composer and his or her

heirs, but also a delay in return to the music publisher who

invests in such works and supports the composer for those

long years. Edward P. Murphy of the National Music

Publishers’ Association echoed the observations of Pierre

Monteux in his 1995 testimony before Congress, advocating

passage of the CTEA:

{[M]uch serious music gains little public exposure or

acceptance until many years after its creation. For

example, the famous Barber composition, “Adagio for

Strings,” experienced only modest economic success

following its debut in 1939. It became popular 25-years

later, however, when the piece was used in connection

with the funeral of President Kennedy. Another Barber

work, an opera, “Anthony and Cleopatra,” premiered in

1966, but was not performed or recorded again until

1991. This cycle of earnings which is typical of serious

and classical works means that a composition, which

may some day be recognized as an American classic

may not return a profit to the creator’s descendants or to

the music publisher owner within the current term of

islation: Hearings on H.R. 989, H.R. 1248 and H.R. 1734

Before the House Subcomm. on Courts and Intellectual Prop.

of the House Comm. on the Judiciary, 104th Cong. (here-

inafter “/995 House Hearing”) 76-77 (1995).

A more recent example of this phenomenon is now world-

renowned composer (and amicus on this brief) Philip Glass,

whose work in the late 1970s and 1980s was greeted with

“frantic bravos and violent boos, sometimes coming from the

same people. Not since the days of the young Stravinsky had

a music appeared that so engaged the emotions of the people

who heard it. While many were hailing Glass as the man who

had revitalized music and made opera a viable art form

again, just as many were castigating him for ‘destroying’

music.” Robert T. Jones, /ntroduction, at http://www.philip

glass.com/. :

George David Weiss, composer of “What a Wonderful

World” and “The Lion Sleeps Tonight,” testified before Con-

gress regarding fair compensation to the artistic creators who

enrich our culture. He noted that many composers—and not

merely those who write “serious” music—do not achieve

public recognition or financial reward until after their death:

There are innumerable composers whose works never

reach the pinnacle of public recognition until after their

death. Herman Hupfeld (“As Time Goes By”), Vincent

Youmans, and Charles Ives are just three examples.

Whether it is because their music is avant garde—or out

of synch with what is currently popular—such artists toil

in obscurity for most of their creative days. And

suddenly, after their death, public recognition and

financial rewards abound. Too late for the creator, but in

time to nourish their heirs - if the duration of protection

is sufficient. What was lost to the creator should not be

also lost to his or her heirs. . . . If we are to encourage

creativity, at a minimum we must offer to the thousands

of my colleagues who struggle to earn a living in this

difficult and competitive business the reasonable pros-

pect that they can leave a legacy to their children and

grandchildren—even if their compositions do not

become commercially viable for many years.

The Copyright Term Extension Act of 1995: Hearings on S.

483 Before the Senate Comm. on the Judiciary, 104th Cong.

(hereinafter “/995 Senate Hearing”) 142-43 (1995).

Il. THE CTEA RATIONALLY PROMOTES THE

PROGRESS OF SCIENCE AND USEFUL ARTS

BY ALLOWING FOR FAIR COMPENSATION

AND ENCOURAGING CREATIVITY, INVEST-

MENT, PRESERVATION, PROMOTION AND

DISSEMINATION IN FIELDS IN WHICH AN

ARTIST’S WORK IS RECOGNIZED VERY

LATE IN LIFE OR POSTHUMOUSLY

A. The CTEA Provides Fair Compensation for

the Enrichment of American Culture through

Symphonic and Concert Musical Works

Once accepted into the repertoire, works of symphonic and

concert music enrich our culture and the lives of those who

enjoy the music—the very essence of the constitutional goal

of “promotion of progress” in our culture. Those who create

such enrichment for the public good should be justly com-

pensated with the assurance of an adequate copyright term.”

For most symphonic and concert music composers, a

? See S. REP. NO. 104-315, at 3 (1996) (“(The CTEA] will ensur{e) fair

compensation for American creators, who deserve to benefit fairly from

the exploitation of their works.”); id. 11-12 (“{I)ntellectual Property is the

only form of property whose ownership rights are limited to a period of

years, after which the entire bundle of rights is given as a legacy to the

public at large. In balancing these competing interests, Congress has

sought to ensure that creators are afforded ample opportunity to exploit

their works throughout the course of the works’ marketable lives, thus

maximizing the return on creative investment and strengthening incentives

to creativity.”).

only means, albeit posthumous, of fair compensation for their

life’s work.

To provide creators of artistic works fair compensation for

their contributions to American culture, the copyright term

has historically been intended to cover the life of the

author plus two generations. See H.R. Rep. No. 105-452, at 4

(1998). Due to increases in life expectancy and a delay in

procreation until later in life, however, the copyright term

provided by the 1976 Copyright Act fell short of this goal—

approximately 20 years short. This was the inequity Con-

gress was asked to, and did, remedy through the CTEA:

Now certainly, there has been a minor increase in life

expectancy in the United States since the duration

provisions of the 1976 Act were proposed in the early

1960s, and enacted in 1976. ... But the relation of life

expectancy to copyright term should not be made by

comparing the life-plus-50-years term and life expec-

tancy in 1976 or 1964 with a life-plus-70-years term and

life expectancy in 1990 or 1995. Rather, we must realize

that life-plus-50-years was the international norm at the

beginning of this century. Thus the increase in life

expectancy over the 20th Century (from about 52 years

in 1909-1911 to about 76 years now) should be reflected

in an increase from the international life-plus-50-years

norm at the beginning of the century to a life-plus-70-

years term now.... [T]he life-plus term is also designed

to protect the next two generations of the author’s heirs.

Extended copyright term is necessary to achieve

adequate protection for the author’s heirs, during the

additional years they, too, are expected to live.

1995 Senate Hearing 134 (Joint Statement of the Coalition of

Creators and Copyright Owners). Congress specifically

recognized this fact when it enacted the CTEA. See S. REP.

No. 104-315 at 11 (1996) (“The Register of Copyrights

informed the Committee that even for . . . works [that] are

afforded the basic life-plus-50 term of protection, the current

term has proven insufficient in many cases to protect a single

generation of heirs.) (citing Testimony of Marybeth Peters,

for Copyright Services, 1995 Senate Hearing 22).

Thus, the CTEA merely updated the copyright term to

account for current life expectancy and child bearing patterns,

ensuring that fair compensation for both existing and new

works, especially to the heirs of composers of symphonic and

concert music, would not fall short of two generations. See

1995 Senate Hearing 2 (Opening Statement Sen. Hatch)

(“When we so often see copyrights expiring before even the

first generation of an author’s heirs have fully benefited from

them, 27 len we laa ali iaraciaameis

B. The CTEA Promotes American Culture by

Extending Copyright for Existing Symphonic

and Concert Music

Congress specifically recognized that the CTEA promoted

progress in culture in two ways: First, by providing an

incentive for the creation of new works; and second, by

extending protection for existing works which then supports

further creativity, investment and dissemination.

‘ [T]he basic functions of copyright protection are best

served by the accrual of the benefits of increased

commercial life to the creator for two reasons. First, the

promise of additional income will increase existing

incentives to create new and derivative works. The fact

that the promise of additional income is not realized for

many years down the road does not diminish this

increased creative incentive. One of the reasons why

people exert themselves to earn money or acquire

property is to leave a legacy to their children and

grandchildren. . . . Second, extended protection for

existing works will provide added income with which to

subsidize the creation of new works.

S. REP. No. 104-315 at 12 (1996) (emphasis added).

1. The CTEA Ensures a Proper Legacy to the

Composer’s Heirs

Beyond fair and just compensation for themselves (which

too often is illusory), the expectation that the copyright term

will provide a potential legacy for their children and

grandchildren gives symphonic and concert composers a

significant incentive to create. The CTEA’s extension of

tive, assuring symphonic and concert composers that the

creative legacy they leave may someday benefit their heirs.

E. Randol Schoenberg (grandson of Austrian-American com-

poser Arnold Schoenberg’) testified from personal experience

about the importance of a fair post-mortem copyright term to

serious music Composers:

My grandfather, the world-renowned Austrian-American

composer, Arnold Schoenberg, came to this country in

1933 after being forced by the Nazis to abandon his

* Amold Schoenberg is one of the composers, now recognized as a

master of the classical music genre, who was subject to vituperative

criticism when his works debuted. One of many critics said at the time of

a now highly-regarded work:

I must reject completely the five orchestral pieces of 1909... .

threaten—there is nothing of joy and light, nothing that makes life

worth living! How miserable would our descendants be, if this

joyless gloomy Schoenberg would ever become the mode of

expression of their time! Is this destined to be the art of the

future????

NICOLAS SLONIMSKY, LEXICON OF MUSICAL INVECTIVE: CRITICAL

ASSAULTS ON COMPOSERS SINCE BEETHOVEN’S TIME 150 (2d ed. 1978)

(quoting Hugo Leichtentritt, Signale, Berlin, Feb. 7, 1912).

position as the leading composition teacher at the

Academy.of Arts in Berlin, Germany. ... He is

generally considered to be the most important and

influential composer of the twentieth century, and is

called by some the “father of modern music.”. . .

Despite his importance in the field of music, my

grandfather died in 1951 with few assets aside from his

artistic works. He left behind my grandmother and three

young children (ages 10, 14 and 19) who survived

primarily on copyright royalties. ... For my grand-

father, as with most serious composers today, the

prospect of performances and recognition after his death

was his only hope of compensation and support for his

young family. Had he not had faith in the ability of his

copyrights to support his family, he would not have been

able to devote the time that his groundbreaking work

required. Certainly, [the CTEA] will be a further inspir-

ation to those artists creating today, whose works are

also not likely to receive their due during their lifetime.

1995 House Hearing 265 (Statement of E. Randol

Schoenberg).

2. Royalties from Existing Works Support

Emerging Composers and Their New Works

Not all royalties from existing works stay within the

composer’s family.* Many composers donate or bequeath the

royalties from their works to benefit others in their field,

especially those just starting out. Consequently, the extension

of the copyright term for existing works promotes the

creation of new symphonic and concert musical works by

providing composers breaking into the field with the financial

support needed to persevere in a discipline known for its

* A notable example of an accomplished composer whose royalties

benefit others is Irving Berlin, who donated the royalties from God Bless

America to a charitable trust, which conveys them to the Girl and Boy

Scouts of America. See American Treasures of the Library of Congress,

God Bless America, at http://www.loc.gov/exhibits/treasures/trm0 19.html.

unforgiving remunerative nature. Without aid from outside

sources, many who would otherwise devote themselves to

composing new works would turn away from their creative

work so as to provide for themselves and their families,

contravening the economic purpose of the Copyright Clause:

If [Charles Ives] had continued on the career path of

an organist/choirmaster/composer/teacher like Horatio

Parker, Ives would have gone from Yale to complete his

studies in a European, probably German, conservatory.

Instead, he took a path that led him into one of the most

difficult and unconventional lifestyles of any major

composer: acting on some of his father’s last words of

advice, Ives decided to forego a musical career and go

into business. When he left Yale in 1898, he headed for

New York to begin as a $15-a-week clerk with the

Mutual Lif Insurance Company.... As Ives put it, if a

composer “has a nice wife and some nice children, how

can he let them starve on his dissonances?”

Jan Swafford, “Charles Ives: A Life With Music” (1998),

available at http://www.charlesives.org/O2bio.htm.

This all-too-familiar economic and professional dilemma

has led to the creation of foundations, awards, grants and

fellowships—all funded, in full or in part, by the royalties

from existing works—which support emerging composers of

symphonic and concert music. The ASCAP Foundation, for

example, reinvests donated royalties from existing works and

other charitable contributions to fund awards, grants, scholar-

ships and fellowships to emerging composers of symphonic

and concert music. Among the ASCAP Foundation’s awards,

grants, fellowships and composer-in-residence programs pro-

viding resources for emerging composers are: The Morton

Gould Young Composers Award, The Leo Kaplan Award,

The New Horizons Award, The Sammy Cahn Award, The

Rudolf Nissim Prize, The Young Jazz Composer Awards,

The R&B Music Initiative, The Leonard Bernstein Com-

posers Fund, The Leonard Bernstein Composer Fellowship at

Tanglewood, The Fellowship for Film Scoring &

Composition at Aspen, The New York University Film

Studies Fellowship in Florence, Italy, The ASCAP Foun-

dation Commissioning Program, The Berklee College of

Music Composer-in-Residence, The New York Philharmonic

Education Program, The Metropolitan Opera Composer-in-

Residence and The New York City Opera Composer-in-

Residence. The ASCAP Foundation also awards numerous

scholarships and grants to support musical composition

students and musical education in various schools and

summer camps and in fellowships and composer-in-residence

programs. The ASCAP Foundation provides hundreds of

thousands of dollars annually to emerging musical artists.

See ASCAP Concert Music: Programs Administered by -

ASCAP’s Concert Music Department, at http://www.ascap.

com/concert/programs.html.° None of these programs would

have been possible without the donation of royalties earned

by existing works. :

There are also many examples of individual composers

who have bequeathed their royalties from existing works to

support emerging artists. Aaron Copland, for instance, left

virtually all of his estate to The Aaron Copland Fund for

Music, Inc., which operates grant programs to encourage and

improve public knowledge of contemporary American con-

cert music and jazz. Since 1992, the Copland Fund has

awarded more than $9 million to encourage and improve

support for the recording, performance and other dissem-

* The ASCAP Foundation is not alone in its assistance to musical

composers. Other foundations reinvest royalties from existing works to

aid emerging musical artists. For instance, the Kurt Weill Foundation for

Music is funded entirely by royalties earned from the musical works of

Kurt Weill and related literary and other rights, and uses such royalties to

fund numerous activities that provide creative opportunities for new

artists, including grants and awards such as the “Award for New Musical

Theater” to encourage composers of new musical theater works. See Kurt

Weill Foundation for Music, at www.kwf.org.

ination of American music, both in the United States and

around the world. See The American Music Center, AMC

Grant Programs, The Aaron Copland Fund for Music Per-

forming Ensembles Program Guidelines, ai hitp://www.

amc.net/resources/grants/performing itial. Virgil Thomson

also left the entire proceeds of his estate to the Virgil

Thomson Foundation to provide assistance to concert music

projects, particularly those involving contemporary American

concert music. Charles Kingsford, Frank Proto and Irwin

Bazelon left their estates to the ASCAP Foundation for the

purpose of encouraging and assisting the efforts of emerging

composers. See The ASCAP Foundation: Where Music

Grows, The ASCAP Foundation Timeline, at http://www.

ascapfoundation.org/timeline2.html (Charles Kingsford as

major supporter). Dizzy Gillespie left his estate to a fund that

reimburses the medical expenses of indigent jazz musicians.

See Englewood Hospital and Medical Center, at http://

www.englewoodhospital.com/Pages/dizzyGCL html.

3. Royalties from Existing Works Encourage

Composers’ Heirs and Others to Invest in,

Promote and Disseminate Their Works

Modern digital recording technology has made possible the

permanent preservation of the American musical legacy.

That, in turn, allows for increased investment in the

dissemination of that legacy. In the case of symphonic and

concert music, the heirs of composers, and their music

publishers, most often take on the responsibility of pre-

serving, promoting and disseminating the musical repertoire

that was left behind. The CTEA provides these heirs (and

investors) with the crucial incentive of an additional 20 years

to take advantage of the gifts of the digital revolution in

investing in and promoting their parents’ or grandparents’

creations. E. Randol Schoenberg tcstified:

Today, our family continues to spend a great deal of

time and energy promoting my grandfather’s works and

protecting his cultural legacy which is a treasured asset

of the City of Los Angeles. My generation, the

grandchildren, span from age 17 to 35. It would be a

great loss if our family were not now able to reap the

benefits of my grandfather’ s life’s work, just as those

benefits are coming to fruition. In serious music, even

70 years after death is sometimes insufficient. J.S.

Bach’s music had to wait almost 100 years after the

composer’s death before Felix Mendelsson “discovered”

it and proclaimed its greatness to the world.

1995 Senate Hearing 65 (Statement of E. Randol Schoen-

berg).° The CTEA provides composers’ heirs and others with

an additional 20 years to invest in and promote works of

American culture.

° See also 1995 Senate Hearing at 58 (Statement of Mrs. Henry

Mancini) (“My husband always intended that his work would be a legacy

for his children. Indeed our children are actively involved in the business

aspects of my husband’s catalogue and insuring that his works continue to

be available to the public.”); id. at 60 (Statement of Ellen Donaldson,

daughter of Walter Donaldson) (“My point is: [My father’s works

are] [s}till used, still there. After all these years. Not lost somewhere in

‘cyberspace’. It is a small piece of the jigsaw puzzle of distinctly

American intellectual property that helps define our national culture. It

has been protected and promoted and always available. It has been a

benefit to my mother, my sister and to me, as my father’s direct heirs.

. .”); id. at 63 (Statement of Marsha Durham, daughter of African/Indian

American composer, Eddie Durham) (“[A]fter many years of arduous

research I am finally in the process of recapturing the rights to [my

father’s} songs for the final 19 years of copyright protection available

under the 1976 Copyright Act. I am hopeful that through careful man-

agement of my father’s catalogue, my brothers, sister and I will be able to

secoup our legal exnenses and to derive some revenues from our father’s

songs. The irony ... of course that absent an extension of the term of

which should rightfully have been a source of income for my father, his

children and his grandchildren for many years.”).

As Congress considered the CTEA, it understood that one

of the rationales behind the creation of the life-plus-50 term

in the 1976 Act was that the technology at that time had

increased the value of copyrighted works, especially serious

works of art:

Indeed early in the discussions of the first Copyright

Office report on revision, term extension was advocated

because new media made older works more exploitable.

. . . It was repeatedly noted that the value of serious

works was often not fully recognized until well into the

(statement of Sen. Hugh Scott; “[a] short term is

particularly discriminatory against serious works of

music, literature, and art, whose value may not be

recognized until after many years,” referring to works of

F. Scott Fitzgerald, Theodore Dreiser and Sinclair

Lewis).

1995 Senate Hearing 135 (Joint Statement of the Coalition of

Creators and Copyright Owners). The digital and Internet

revolutions provide the same, if not more imperative, grounds

for the CTEA’s 20-year extension to protect existing works.

CONCLUSIQN

Half a century ago, this Court recognized—as did Madison

in The Federalist Papers—that proper economic remun-

eration to creators was not only fully consonant with, but also

essential to, the public good:

The economic philosophy behind the clause empowering

Congress to grant patents and copyrights is the

conviction that encouragement of individual effort by

personal gain is the best way to advance public welfare

through the talents of authors and inventors in “Science

and useful Arts.” Sacrificial days devoted to such

creative activities deserve rewards commensurate with

the services rendered.

Mazer v. Stein, 347 U.S. 201, 219 (1954).’ More so than in

any other artistic endeavor, the creation of symphonic and

concert music requires “sacrificial days.” It is only right and

just—to say nothing of reasonable—that Congress recognized

that copyright term extension for new and existing works was

necessary to compensate the composer and two generations of

heirs, and to provide for investment in, and preservation,

promotion and dissemination of, existing works. For these

rational reasons, and a host of others, Congress enacted the

CTEA, and so provided the necessary protection and

incentives for the promotion of progress of serious American

works of art, among them, works of symphonic and concert

music.

The decision below should be affirmed.

Respectfully submitted,

I, FRED KOENIGSBERG *

GAELA K. GEHRING FLORES

WHITE & CASE LLP

1155 Avenue of the Americas

New York, NY 10036-2787

(212) 819-8200

* Counsel of Record Attorneys for Amici Curiae

August 5, 2002

’ “The utility of this power will scarcely be questioned. The copyright

of authors has been solemnly adjudged, in Great Britain, to be a right of

common law. The right to useful inventions seems with equal reason

to belong to the inventors. The public good fully coincides in both

cases with the claims of individuals.” THE FEDERALIST No. 43

(James Madison).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.