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contribution to a compilation, in any supplementary work,
visual work, is distinct from the copyright in the eartee
tive larger or revised work as a whole, and vests initially
with the author of the contribution who created the work to
be incorporated into the larger or revised work.
absence of an express transfer of the copyright or of any
rights under it, the owner of copyright in the eolieetive
larger or revised work is presumed to have acquired only the privilege of reproducing and distributing the contribution author's work as part of that particular eetleetive larger or revised work, any revision of that eotteetive
larger or revised work, and any later eelieetive larger or
revised work in the same series.
If an express transfer is
made with respect to an author's work in one of the cate
gories covered hereunder, such transfer shall be in a written
instrument specifically enumerating each right being acquired and the consideration paid for that right and shall be signed
by both parties. Such enumerated rights shall not exceed the
rights which the grantee reasonably anticipates exercising.
To protect the needs of publishers whose works may last for
longer than thirty-five years, Section 201(c) might continue:
A transfer by an author in one of the categories covered hereunder shall not be terminable by the author pursuant to Section 203(a)(3) if a written contract signed by both parties prior to the commencement of work specifically enumerates certain rights which may not be so terminated.
G. UNCONSCIONA BLE TRANSFERS
This new statutory pattern would greatly aid creators while
meeting the needs of copyright users.
It should be pointed
out, however, that even this proposal has some drawbacks for
The most noticible is the fact that publishers can
use work forever and pay only one fee
if certain conditions
For this reason, which stems from the general inability
of the creator to negotiate on a value for value basis, we would
suggest that the concept of unconscionability be added to the statute. Such a concept was present in Section 16 (Alternative
B) with respect to unremunerative transfers in the 1964 Prelim
We would suggest that such a remedial concept be
added as a new subdivision (f) for Section 201.
It would read
"(f) Unconscionable transfers.
An author may, at
any time following the transfer of a copyright or of any rights
under it, bring suit to reform or terminate a transfer in which
the profits received by the transferee or his successors in
title are strikingly disproportionate to the compensation, con
sideration, or share received by the authors or his successors.
In such action the plaintiff shall have the burden of proving that, taking into consideration all factors including the barga ining position of the parties, their respective contributions to the success of the work, and changes in business practices
or media exploitation, the terms of the transfer have proved
to be unfair or grossly disadvantageous to the author. The court shall decide the action in accordance with the principles
of equity, and shall have discretion to reform or terminate the
transfer on whatever terms it considers just and reasonable."
Our proposals would, we believe, permit our members and creators generally to bargain on what will more closely approximate a value for value basis. At the same time, these proposals will
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permit publishers to purchase the usage in creative works that
We are most appreciative for the opportunity to make this Supplemental Submission to the Judiciary Committee and hope that it will be of assistance in considering s. 2044 and the
effect of work for hire on our nation's creative free lancers. APPENDIX A
excerpt giving work-for-hire definition
A“work made for hire" is
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as . supplementary work, as a compilation, as an instructional texty as a test, as answer material for a test, or as an atlas, if tho parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
17 USC 201.
8 201. Ownership of copyright
(a) INITIAL OWNERSHIP. - Copyright in a work protected under this titlo vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.
(6) WORKS MADE FOR HIRE.- In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signied by them, owns all of the rights
comprised in the copyright. (c) CONTRIBUTIONS TO COLLECTIVE WORKS. Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series. (d) TRANSFER OF OWNERSHIP.
(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
(2) Any of the exclusivo rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and
remedies accorded to the copyright owner by this title. (e) IX VOLUNTARY TRANSFER.— When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title. 8 202 Ownership of copyright as distinct from ownership of mate
rial object Ownership of a copyright, or of any of the exclusive rights under : copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material
objoct, including the copy or phonorecord in which the work is first fixed, docs not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
17 USC 202.
Senator MATHIAS. Our next panel will be composed of Mr. Townsend Hoopes, president, Association of American Publishers; Mr. Gabe Perle, vice president, Time, Inc. Mr. Secretary, do you want to open this panel?
Mr. HOOPES. Thank you, Senator Mathias, I would be glad to.
STATEMENTS OF A PANEL CONSISTING OF TOWNSEND HOOPES,
PRESIDENT, ASSOCIATION OF AMERICAN PUBLISHERS, ACCOMPANIED BY CHARLES BUTTS, FIRM OF HOUGHTON MIFFLIN; JOHN ROBLING, ENCYCLOPAEDIA BRITANNICA; JON BAUMGARTEN, COPYRIGHT COUNSEL; AND E. GABRIEL PERLE, VICE PRESIDENT, TIME, INC., ACCOMPANIED BY BARRY AGDERN, CHAIRMAN, COPYRIGHT SUBCOMMITTEE, LEGAL AFFAIRS COMMITTEE; ALFRED H. WASSESTROM, FORMER CHAIRMAN, LEGAL AFFAIRS COMMITTEE, MAGAZINE PUBLISHERS ASSOCIATION
Mr. HOOPES. My name is Townsend Hoopes. I am the president of the Association of American Publishers. I am accompanied this morning by Charles Butts of Houghton Mifflin, John Robling of the Encyclopaedia Britannica, and Jon Baumgarten, who is our copyright counsel.
I will briefly summarize my written statement, Mr. Chairman, which I hope will be produced in the record.
Senator MATHIAS. Let me say for the benefit of all succeeding witnesses that the statements will appear in full in the record. You can brief them, summarize them for your oral testimony.
Mr. HOOPES. We welcome the opportunity to express our views on S. 2044 relating to works made for hire. As to books, S. 2044 applies essentially to reference works like encyclopedias and to instructional texts-mainly for elementary and high schools. It appears to us that this bill is based on a faulty premise.
In his statement accompanying introduction of the bill, Senator Cochran stated that it would protect the author's copyright in the works described, except where express agreement is made to do so otherwise." But examination of the 1976 Copyright Act clearly shows that this desirable safeguard is already present in that law. Section 101, clause (2), the clause that would be amended by the Cochran bill, now states that commissioned and collective works can qualify as "works made for hire” only “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."
Section 201(b) of the Copyright Act provides further that, in the case of a work established as “made for hire" by reason of agreement between the parties, the publisher and the author may expressly agree upon the allocation of rights between them.
In sum, we believe that the Cochran bill is based on the mistaken assumption that the Copyright Act automatically divests authors of commissioned works of their rights. This is not the case.
It should be noted that the 1976 Copyright Act represents in this regard a change in favor of the author. Under the earlier law, copyright in commissioned works was generally presumed to reside automatically and totally in the publisher. Publishers agreed to changes in 1976 as part of a carefully balanced compromise between author rights and interests and basic business needs.