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the back of checks

even in the face of a clear, fully

executed copyright license detailing rights granted.

The fact

that such clients may be misleading themselves as to their

legal status is a comfort neither to us nor to the creators

we represent.

We feel the only healthy situation is one in

which the perception of rights acquired and the fact be one

and the same.

Our members do the best that they can to clarify

understanding, but in the real world, as individuals dealing with bureaucracies, a point is reached where such efforts

become counter-productive.

At that point, the best of us,

and the best of the talent whether we represent them or not,

find we must simply walk away.

The creators we represent, being by and large the elite

of the field, are able to risk the loss of income which

such action may involve.

They and we are most concerned about

those who are most vulnerable to losing their authorship under

"work made for hire"

young artists and photographers, easily

intimidated, who do not understand that what they are signing

away is not only their present advantage, but their future

assets and the basis of their estates.

We are concerned as well about the visible loss of

graphic quality in the nation's publications which is resulting from the reduced participation of the best of America's photo

graphers and artists.

S 2044, the amendment offered by Senator Cochran, goes

far toward alleviating the problems of lierary authors, but

would leave visual authors still partially vulnerable.

We

hope that the Committee will give full consideration to extending the language of the amendment either by removing references

to "supplementary works" from clause (2), or by making it

clear that works of visual authorship are not intended to be

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TESTIMONY OF AMERICAN BUS INESS PRESS

American Business Press (ABP) files this testimony in opposi

tion to S. 2044 which would exclude periodicals from the "work for

hire" provision of the Copyright Act where an article is soli

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copyright policy--as it existed both before and after enactment

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periodicals include Aviation Week and Space Technology,
Dat amation, Defense Electronics, Iron Age, Laser Focus, Medical
Economics, Public Utilities Fortnightly, Railway Age, Telephone
Engineer and Management, and Word Processing and Information

Systems.

ABP periodicals employ full-time editors who are experts in the highly specialized fields covered by these publications.

Frequently, they also commission outside experts to write

articles of interest to readers in order to provide better edi

torial coverage.

The expense of publishing these outside

articles is borne by the publisher.

At the present time, the publisher is presumed to own the

copyright in a commissioned article as long as

there is an

express written agreement between the publisher and the author to

that effect.

Section 101 of the current Copyright Act defines a work for hire for commissioned work as follows:

"a work specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instruc

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or

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tional text, as a test, as answer material for a test,

an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work for hire. [Emphasis supplied. )

The foregoing section of the 1976 Act gives authors stronger

rights to ownership of a commissioned article than they had in

the pre-1976 Copyright Act.

The presumption existed in the

pre-1976 Act that the publisher and the author implicitly agreed

that

the publisher had the copyright where the publisher com

missioned an article from an author.

Brattleboro Publishing Co.

v. Winmill Publishing Corp., 369 F.2d 565, 568 (2d Cir. 1966).

Section 101 of the 1976 Act also vests ownership of the

copyright of a commissioned article in the publisher, but only if

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Associates, 618 F.2d 1363, 1368, n.4 (Ninth Circuit 1980).

Additionally, the work for hire doctrine for commissioned

works was

restricted by Congress in 1976 to certain categories:

collective works (periodicals), films, translations, compilations

and supplements, instructional texts, tests

or

atlases.

Other

kinds of commissioned work--e.g., musical compositions

and books not falling within the foregoing categories were

not

included as works for hire.

The report of the Senate Judiciary Committee accompanying the

1976 Act explains that the final language of the 1976 definition

of works for hire was

a compromise, when it stated:

Works made for hire.

Section 201(b) of the bill adopts one of the basic
principles of the present law: that in the case of
works made for hire the employer is considered the
author of the work, and is regarded as the initial owner
of copyright unless there has been an agreement other-
wise. The subsection also requires that any agreement
under which the employee is to own rights be in writing
and signed by the parties.

as

The work-made-for-hire provisions of this bill respresent a carefully balanced compromise, and such they do not incorporate the amendments proposed by screenwriters and composers for motion pictures. Their proposal was for the recognition of something similar to the "shop right" doctrine of patent law: with some exceptions, the employer would acquire the right to use the employee's work to the extent needed for purposes of

his regular business, but the employee would retain all
other rights as long as he refrained from authorizing
competing uses. However, while this change might
theoretically improve the bargaining position of
screenwriters and others as a group, the practical bene -
fits that individual authors would receive are highly
conjectural. The presumption that initial ownership
rights vest in the employer for hire is well established
in American copyright law, and to exchange it for the
uncertainties of the shop right doctrine would not only
be of dubious value to employers and employees alike,
but might also reopen a number of other issues.

or

The status of works prepared on special order commission was a major issue in the development of the definition of "works made for hire" in section 101, which has undergone extensive revision during the legislative process. The basic problem is how to draw a statutory line between those works written on special order or commission that should be considered as "works made for hire," and those that should not. The definition now provided by the bill represents a compromise which, in effect, spells out those specific categories of commissioned works that can be considered "works made for hire" under certain circumstances. [Emphasis supplied.]

Under the 1976 Act, an author commissioned to write an

article can

veto

the publisher's copyright by not signing a work

for hire agreement.

It is difficult to see what practical pur.

posel is served by S. 2044 other than to upset a carefully crafted

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tion for the author among his professional peers and the public,

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Ithe elimination of periodicals from the work for hire provi

sion also would mean that after 35 years, copyright in
missioned article would revert to the author, where the
author originally assigned copyright to the publisher.
Permitting authors to claim copyright after 35 years in an
article originally commissioned by the publisher hardly seems
worth disrupting the balance Congress wished to maintain bet-
ween publishers and authors.

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distributed to the public.

S. 2044 will only discourage the use

of outside articles and will result in a smaller quantity of

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the principle, long-embodied in copyright law, that

the work of

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