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planning and creation of the materials. During the preparatory stages, numerous individuals will participate under the publisher's supervision in assigned tasks relating to the submissions, review, revising, and reworking of manuscripts to meet detailed pedagogic and curriculum needs. Indeed, it will often be difficult to look at the final product and isolate a particular author's original contribution. And, after publication, similar processes of periodic, multiple-participant, revision will be necessary to continue meeting the needs of the teaching community.

Finally, considerations combining those just discussed for both encyclopedias and instructional texts apply to single textbooks comprised of commissioned chapters by particular specialists.

In these contexts, distinctions between staff employees and

commissioned authors are, for purposes of the Copyright Act, illusory. In the absence of a single, identifiable copyright owner of the whole and its constituent parts, the processes of revision and updating would be severely inhibited, and the ability to adapt or license particular versions and uses (e.g., abridgements, special

adaptations, foreign language editions, and

of increasing


microform, videoform, data base, and electronic media

versions) would be significantly impaired.

And subjecting discrete

segments of larger interwoven units (whether paragraphs of particular entries or sections of the entire work) to myriad terminations of the publisher's rights would be virtually intolerable.

These concerns are not parochial, limited to the financial

fate of particular publishers. They are important elements of

the publishing community's ability to meet the needs of the general, special, and educational publics for reference and

instructional works: to create comprehensive,

accurate, and up-to

date materials; to disseminate these materials in rapidly changing fashions that will adequately and effectively serve their purpose;

and to maintain the economic incentive to continued creative effort

that underlies our copyright laws.

D. "Abuses" Of Work Made For Hire?

Since the new Copyright Act came into effect in 1978,

there have been occasional unsubstantiated rumblings of "abuses"

of the work made for hire provisions (a perjorative, by the way,

that hardly pertains to the offering or negotiation of contracts

or terms called for by legitimate business considerations).


we are aware of no circumstances under which the rights


individual authors are being deliberately or systematically abused or disregarded by our members. Additionally, and at the risk

of repetition in part, we must point out that the revised Copyright Act already contains several safeguards for the author's interests

in this connection:

• by requiring an "express agreement" that a commissioned work

"be considered a work made for hire" as a condition to work

made for hire treatment;

• by requiring that such an agreement be "written" and "signed"

by the parties;

• by permitting such treatment only for non-employee works

that have been "specially ordered or commissioned," thus
assuming some motivating, generating, initiating, or like

relationship of the publisher to the work;
• by permitting commissioning parties and individual authors

to agree as to the ownership and allocation of rights among

them, even if the work is to be considered as "made for

hire" by mutual consent; and

• by limiting the possibility of "work made for hire" treatment

to specified categories of commissioned works.

G. Conclusion

The "work made for hire" provisions of Section 101, clause (2) of the 1976 Copyright Act (particularly as it pertains to instructional texts and contributions to encyclopedias and other collective works) provides full safeguards for the interests of individual authors. At the same time, it permits the orderly and efficient development,

revision, administration, and marketing of particular works and

rights therein.

Thus, it equally serves the interests of the public

in the vitality and richness of American publishing. If there are particular situations in which the pertinent provisions have caused legitimate difficulties for authors, these are isolated instances

that may call for discussion; they do not call for blanket,

legislative revision of the balanced, workable, and fair resolution

that is now represented in the Copyright Act.

Thank you for the opportunity to present our views.

Senator MATHIAS. Our third panel today is composed of Mr. Elmer Bernstein of the Screen Composers of America and Mr. Richard Colby, senior distribution and marketing counsel for Twentieth Century Fox Pictures.



Mr. BERNSTEIN. Senator Mathias, I would like to make a personal observation to begin with. I am very thrilled to find the highest law-making body in the land considering the plight of creative artists.

I would like to start by thanking Senator Cochran for his concern and you, Senator Mathias, and the Judiciary Committee for the opportunity to speak on these issues.

Senator MATHIAS. Your thanks really ought to go to the Founding Fathers. They embodied concern for protecting the creativity of authors and inventers by providing for copyright and patent in the Constitution. So, that is where our continuing appreciation should lodge.

Mr. BERNSTEIN. It is thrilling to find it works.

I am here representing the Screen Composers Association of America. I am really substituting for its president, Herschel Gilbert, who could not be here today. I am in rehearsal in a show in New York City, and I am speaking extemporaneously.

I am representing composers who write music for the film medium primarily. We have a slightly different situation, because of the nature of music itself. Music is an art which can have many different kinds of uses. If I may, Senator, I will refer to your calf and cow. A screen composer is in a position of delivering a calf that can also turn into an eagle or a bird.

Senator MATHIAS. A turkey, ever?

Mr. BERNSTEIN. And a turkey, yes, definitely a turkey; we have had many of those.

The music for a film score can become a popular song. It can become a recording. It can be made by the composer into a suite that can be performed by a symphony orchestra. It can be turned into a march which can be played on a football field. It can become an advertisement for cigarettes, beer, underarm deodorant, whatever.

At the present time and for some time past, there is nothing in the relationship, in my opinion, between the composer and the producer which is classically for hire. In effect, the composer is commissioned for a specific work, namely providing a score for a particular motion picture to be synchronized with the motion picture and serve the motion picture for its life. In spite of that, composers are routinely presented with for-hire contracts, the sole purpose of which is to use the for-hire contract for the purpose of acquisition of the copyright and then exploitation of the music in all these other areas that I have indicated. The composer thereby effectively loses all control in any other use of the music in perpetuity.


We have heard a lot of talk, for instance, about the relative bargaining strengths of the people. Now, I must say to this point immodestly that I think I would be considered to be probably one of the top composers in my field. I think it could be said that I command probably the highest fees that are paid to composers today. I have been an Academy Award winner. I have done the music for 140 motion pictures and numerous television shows. Nevertheless, if I take the position that I do not wish to enter into a for-hire arrangement, I would have to consider some other field of work. I would suggest probably the best thing to do would be to become a producer. This is a fact.

Also, I would like to dramatize this relationship by pointing out that on occasions when, through my agent, I have attempted just to test the water, so to speak, to exchange a fee for copyright control, I have never been successful in so doing. It suggests, in effect, in terms of bargaining power, that surely suggests that the copyright which is obtained is obtained at a relatively unfair fee in terms of its worth.

I will stop now, as the red light is on. Thank you very much.
Senator MATHIAS. Thank you very much. Mr. Colby?

Mr. COLBY. My name is Richard Colby. I am a member of the California and New York bars, senior distribution and marketing counsel of Twentieth Century-Fox Film Corp., and formerly chairman of the Copyright Committee of the Motion Picture Association of America.

Although I am not speaking on behalf of the American Bar Association or any of its sections or committees, I presently serve as chairman of the Subcommittee on Works Made For Hire of Committee 307 of the ABA's section of patent, trademark, and copyright law.

I attach to my statement a list of my published writings, including at item 8 my previous testimony at the 1963 hearings at the Copyright Office

I am authorized to say that the member companies of the Motion Picture Association agree in principle with my statement, but time has not been sufficient for their respective counsel to review it in any detail. To that extent, I have the deep honor to appear by invitation of the Committee on the Judiciary of the U.S. Senate in my individual capacity as a copyright lawyer.

Briefly, thm proposed amendment would directly diminish the value of our contracts and would restrict our ability to recoup the capital investment we have at risk in the following respects.

One, by removing commissioned works from the category of works made for hire, the amendment would permit a writer or composer to terminate sequel and remake rights granted to the producer.

Two, the motion picture producer would no longer be deemed the author of all parts of the motion picture, raising questions under foreign laws and treaties as to the nationality of the motion picture, thereby making it more difficult to enforce and protect all of our rights in foreign countries.

Three, the potential revenue from sequels and remakes would, in time, be lost, even if the parties had agreed upon payments and

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