# Amicus Curiae Brief — Eldred v. Ashcroft

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0514%3A48

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 186

## Text

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AND » No. 01-618 | ag - 5 20
EBPRIEEF se .
IN THE Banal t

Supreme Court of the United States

| ERIC ELDRED, et al.
Petitioners,
v.
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
esommaeametse OF AMAIMM TAN

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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

ul | ill
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
Copyright Term, Film Labeling, and Film
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

1V

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

17

19

19

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”).

2

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.

3

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,

4

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

5

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

6

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

7

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,

8

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

9

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.

10

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,

li

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
copyright protection. . ..

Copyright Term, Film Labeling, and Film Preservation Leg-
islation: Hearings on H.R. 989, H.R. 1248 and H.R. 1734

12

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-

13

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.”).

14

copyright term sufficient in length following their death is the
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

iJ

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,
Register of Copyrights and Associate Librarian of Congress
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

copyright is too short.”).

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

16

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
copyright term for existing works further bolsters this incen-
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).

1/
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.

18

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

19

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.

20

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

Zi

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
copyright, we will have only a few short years of income from the songs
which should rightfully have been a source of income for my father, his
children and his grandchildren for many years.”).

22

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
copyright term .... 122 Cong. Rec. 3834 (1976)
(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.

23

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0514%3A48. Public record. Not legal advice.