in the Bartels case called a limited engagement. The MCA, the Music Corp. of America, would write back, or probably more often would call back on long-distance telephone. I have been in their offices many times and have heard them talking over the phone to different establishment owners around the country. And they would say, "We have Griff Williams available for the 2 weeks beginning April 1 at a lump-sum price." And if that was satisfactory to the Statler Hotel Corp., that is, the man here, he would say, "O. K. We will take him." And MCA would say, "We will send the contract on."

The contract would be a standard form of contract prescribed by the American Federation of Musicians, and that must be used by all federation orchestras playing engagements in this country, and also, I think, in Canada. And it must also be used by the booking agencies, because the booking agencies all have a license from the American Federation of Musicians.

The CHAIRMAN. Now, by what known authority would MCA make this contract with the Statler Hotel, for instance?

Mr. ROBERTS. I believe that at least it was brought out in the Bartels

case

The CHAIRMAN. I am speaking of how these things are practically done.

Mr. ROBERTS. Yes. They have an agreement from Griff Williams, in which Griff Williams gives an authorization to the Music Corp. of America. That is, I believe, an agency contract, and I believe that was put in the record in the Bartels case. It is a written agreement and authorizes MCA to book engagements for Griff Williams and his orchestras in various types of entertainment establishments which use their music.

The CHAIRMAN. By whom is that contract made on behalf of Griff Williams with the booking agency, or the MCA? Is it made by the leader, or by each individual?

Mr. ROBERTS. Under the Bartels case, that was with the leader. We had one of their contracts. That was back prior to 1944. And he paid the booking agency a commission, the exact amount of which I am not too familiar with. I think it ranged from 10 to 20 percent of the lump-sum price.

The CHAIRMAN. Would it be possible for anyone to obtain a name band without contracting directly through or with the leader of the band? Could you get it by going to the individual members of the

band?

Mr. ROBERTS. Senator, I know of no instance where that has been done, and I represent the National Ballroom Operators' Association, and I also represent some of the large ballrooms that are in that. I have never known of an instance where a ballroom has ever gone to the individual members. They have either gone to the leader directly or to the leader's representative; namely, the booking agency.

The CHAIRMAN. That is what I was getting at. Now, is the leader any more than the bargaining agent, so to speak? Has he any financial interest in the contract?

Mr. ROBERTS. Yes. It was brought out in the Bartels case and is still true that some of these engagements he sustains a profit on. In fact, most of them he sustains a profit on, or he wouldn't be in the business. In other words, for example, we will say, an orchestra plays a 1-night engagement in a ballroom in Des Moines, Iowa. The contract price

is a thousand dollars. It may be that after the orchestra leader pays the sidemen their wages, and pays his booking commission and pays his transportation expenses-and I believe there is a union traveling cost of some small amount; I don't remember the exact figure-he would perhaps have left six or seven hundred dollars. That would be profit to him, the same as to any other entrepreneur. Now, these so-called name bands, which are the only types of orchestras with which we are concerned

The CHAIRMAN. You are not concerned with the regular orchestra that is engaged for a fixed period of time?

Mr. ROBERTS. That is right. These name bands have developed over a period of years. The leader has built up a distinctive style, a way of presenting and rendering his particular music, which makes his music individual in the entertainment world. And that is what he is selling, and that is what, in the Bartels case, the Supreme Court in effect found regarding those name bands: That they were selling a commodity-namely, an individual style of music.

And so he is just the same as an independent entrepreneur. Guy Lombardo advertises "the sweetest music this side of heaven." Lawrence Welk, who plays through the Midwest, offers "champagne music." Someone pulls a thumb out in front of a microphone. I just happened to hear them recently. And it sounds like a cork popping out of a champagne bottle of course, that is only hearsay as far as I am concerned. And then over the air they say, "Here comes Lawrence Welk and his champaign music." Each orchestra leader is developing that particular individualistic style. That is why he wants to pick out and control the musicians: so that they will render the type of music for which he is known throughout the entertainment world.

The CHAIRMAN. And he has a proprietary interest in their profits, or in their losses if they have losses?

Mr. ROBERTS. Yes. I should even mention this, Senator. Perhaps you might be interested in it. I do not want to take too much of the committee's time, but it was brought out that some of the orchestras own their own busses. They are large affairs, almost as large as one of the Greyhound busses, and they have every modern convenience in them. Those busses are owned by the leader individually. They are registered in his name. He even employs a driver, who does not even play in the orchestra. Many of your big orchestras, such as Guy Lombardo, Sammy Kaye, Tommy Dorsey, Jimmy Dorsey, those types of name bands, names with which you are probably familiar, carry their own manager, and he checks the gate receipts. He is also an employee of the leader. It all points to the fact that the leader is an entrapreneur the same as any other businessman who has something to sell.

The CHAIRMAN. Thank you. I wanted to get the facts.

Senator Kerr also has some questions, I think. He also wants to get the facts. And I do not think the committee would be worried about the contract. I think the committee would want to look through the contract. Because that is continually necessary, and in tax matters the Treasury would have to go out of business if it did not look through contracts and find the responsible party, the person responsible for the tax.

Senator KERR. Does this band leader have a definite commitment to the members of his band?

Mr. ROBERTS. Yes.

Senator KERR. Does he pay them a stated amount of dollars per week or per period, or does he pay them a percent of receipts, or is there a combination of the two?

Mr. ROBERTS. Usually, Senator, he pays them a weekly salary. Now, there may be some bonus arrangement with which I would not be familiar. But with the 12 orchestras involved in the Bartels case, I think we have a fairly typical group. In other words, we purposely included every type of name band, from a small territory band to a large nationally known band, such as Griff Williams, Tiny Hill, and Boyd Raeburn, who are three of the nationally known name bands. Practically all of the leaders, many of whom we put on the stand, readily admitted that they paid their men weekly salaries.

Senator KERR. I believe you said that MCA would sign this contract with the Statler?

Mr. ROBERTS. Well, they would sign as the agent for the orchestra. Senator KERR. Would they sign as the agent for Griff Williams, or would they sign as the agent for him and the members of his band? Mr. ROBERTS. The form of the contract recites that they sign as the agent for Griff Williams and his orchestra.

Senator KERR. Does it say how many are in his orchestra?

Mr. ROBETRS. Yes; there is a blank up near the top which says, "Consisting or 12 members, including the leader, hereinafter referred to as employees."

Senator KERR. Does the band leader have the authority, either in the terms of the contract or as a practical matter, of substituting performers in the event of illness or of a change on his part of the personnel of his band?

Mr. ROBERTS. Yes. I believe there is a recital in his contract to that effect. And, of course, he does so in fact. The operator or the establishment owner who contracts for the orchestra's services has nothing to do with that.

Senator KERR. In the event that expenses come along that are not looked for, and the management for 1 night or more turns out to be unprofitable, who sustains the loss?

Mr. ROBERTS. The leader. That was brought out in the Bartels

case.

Senator KERR. In other words, the personnel of the band, the members of the band, get paid whether it makes or loses?

Mr. ROBERTS. That is correct, sir.

Senator KERR. And whatever profit or loss there is, the leader takes? Mr. ROBERTS. That is right, Senator.

The CHAIRMAN. Thank you very much, gentlemen.

Mr. ROBERTS. Would the Senator like to have us leave the record in the Bartels case with the committee?

We have it here.

The CHAIRMAN. You mean the report of the case?

Mr. OSHERMAN. It is the entire record itself. It is voluminous, we

warn you.

The CHAIRMAN. Yes; it is too formidable in appearance, I am afraid.

The committee will have access, of course, to the case and will be able to get the facts, undoubtedly.

Thank you, gentlemen.

Mr. OSHERMAN. Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Carter Barron?

Mr. Barron, you are with the Motion Picture Association of America?

STATEMENT OF CARTER T. BARRON, MANAGER, EASTERN DIVISION OF THEATERS OF LOEW'S, INC., WASHINGTON, D. C.

Mr. BARRON. Yes, Senator George.

The CHAIRMAN. You are appearing on this same matter?

Mr. BARRON. Yes, sir. My name is Carter T. Barron, and I am manager of the eastern division of theaters of Loew's, Inc., and in this capacity have supervision of theaters in Washington, D. C.: Richmond and Norfolk, Va.; Baltimore, Md.; Wilmington, Del.; and Harrisburg and Reading, Pa.

I appear in behalf of Loew's, Inc., and of the following companies interested in the operation of theaters throughout the United States: National Theaters Corp.; RKO Theaters, Inc.; United Paramount Theaters, Inc.; and Warner Bros. Theater Cos.

I shall refer to them as "operators." However, my comments are not applicable only to them. They are also applicable to hundreds of independent theaters, to numerous radio and television broadcasting companies which employ so-called name bands, and hotels, ballrooms, dance halls, and other public places which from time to time use name bands.

As accurately described by the Supreme Court of the United States, in the Bartels case, which has heretofore been referred to, a name band is a band hired to play a limited engagement.

The band is built around a leader whose name and distinctive style in the presentation and rendition of popular music are intended to give each band a marked individuality. The leader contracts with different operators, whether they be motion-picture exhibitors, hotels, or ballrooms, to play at their establishments for a contract price. The engagements may be for one night or for several successive nights or for a period of weeks. Rarely do the engagements run more than 2 weeks. The leader exercises complete control of the orchestra or band. He fixes the salaries of the musicians, pays them, and tells them what and how to play. He provides the sheet music and arrangements and usually the uniforms. He employs and discharges the musicians and he pays agents' commissions, transportation, and other expenses out of the sum received from the operators of the place of amusement. Any excess is his profit and any deficit is his loss. The operator furnishes the piano but not the other instruments.

As an illustration of this, it should be pointed out that there are several styles of music which have been made popular by one or more of these name bands. There are the "rhumba" type bands which emphasize Latin rhythms, typified by Xavier Cugat; there are "sweet" bands, typified by Guy Lombardo; and there are "hot" bands, as exemplified by Benny Goodman. There are other classifications within these groups such as "Dixieland," and so forth.

Theaters, such as those I am representing, contract for these bands on the strength of the name involved. "Xavier Cugat" or "Tommy Dorsey" on a theater marquee is expected to draw patrons into our theaters, where a nameless house band might not. These bands are ordinarily contracted for as "packages," this meaning that a whole entertainment period is supplied for one inclusive price. Such bands often are paid as much as $15,000 for a week's work, plus a percentage of the theater's gross above an agreed figure.

As an example of the fact that name bands agree that they are name bands and therefore are engaged at rather large prices, I would like to refer to one line in a contract which is typical of lines found in almost every contract, in which "leader and orchestra are to receive top-headline stage billing, and no one else will be billed in equal or larger size type." That is the typical line that is found in most name-band contracts.

A name band should not be confused with musicians hired to play regularly at an establishment. This class of band or orchestra is generally called a house band. An example of this type of band is that which regularly plays at the Capitol Theater in this city. We are not concerned here with this type of band, but only with name bands. For many years the American Federation of Musicians of which the leaders and the musicians in name bands are members, adopted a standard contract known as Form B which states that the operator of the place of amusement was the employer of the musicians and of the leader and should at all times have complete control of the services which the employees would render. This contract was adopted by the American Federation of Musicians in order to shift to the operators the burden of paying the employer's share of social security taxes with respect to the band and the burden of keeping the voluminous records which are required under the Social Security Act. The Supreme Court in the Bartels case, supra, held that the Form B contract was purely fictitious, that in fact the operators had no control over the band, that the leader was the true employer and that the burden was, therefore, upon the leader to pay the tax and make the reports with respect to the members of his band which were required by the Social Security Act.

I would like to say here that this Bartels case was brought by a ballroom operator who signed a Form B under protest. And he brought the suit against the Government to recover social-security taxes which he had paid under protest.

The bill as passed by the House of Representatives would, contrary to fact, treat the operator as the employer. This is inherent in section 206 (a) of the bill which would amend section 1426 (d) of the Internal Revenue Code to read in part as follows:

For purposes of this paragraph, if an individual (either a line or as a member of a group) performs service for any other person under a written contract expressly reciting that such person shall have complete control over the performance of such service and that such individual is an employee, such individual with respect to such service shall, regardless of any modification not in writing, be deemed an employee of such person (or, if such person is an agent or employee with respect to the execution of such contract, the employee of the principal or employer of such person):

Gentlemen, I would like to cite here that I have read and reread that proposed amendment, and, frankly, each time I have read it I