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● 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.

STATEMENTS OF A PANEL CONSISTING OF ELMER BERNSTEIN, SCREEN COMPOSERS OF AMERICA, AND RICHARD COLBY, SENIOR DISTRIBUTION AND MARKETING COUNSEL, 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, what

ever.

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

that such sequel and remake rights were to be owned by the producer.

Four, many people create a motion picture, including writers, the director, cameraman, producer, actors, creators of special effects, and many, many other people. A motion picture is undoubtedly the most complex form of a derivative work developed and formed by many creative talents to transform the written word and music and art into a motion picture at the sole cost and risk of the producer. Why should sequel rights revert to one of the contributors to the production of a motion picture if that person is willing, as and to the extent now permitted by the act, to grant such rights to the producer upon such compensation as may be agreed upon?

Five, as a study of the legislative history of the act will amply demonstrate, all of the foregoing and other problems had been studied by this committee, and the work-made-for-hire provisions of the act were reported out by this committee in November 1975 as "a carefully balanced compromise," and that a change would be "of dubious value to employers and employees alike which might also reopen a number of other issues," and as stated by the Register of Copyrights: "The definition now in section 101 represents a carefully worked out compromise aimed at balancing legitimate interests on both sides."

Most of the legal relationships between artists and producers, employees and employers, in the motion picture industry are governed by short-term collective bargaining agreements, usually improved by the employee with each new agreement, as in 1981 for actors, writers, and directors, with residual payments for use of subsidiary and ancillary rights.

In the absence of any demonstrated need for a change with respect to the motion picture industry, I respectfully suggest that the words "as a part of a motion picture or other audiovisual work" be deleted from the amendment and retained in the act.

In the motion picture industry many, indeed an increasing number, of the talented people who participate in the collective creation of a motion picture are engaged at their request as independent contractors whose services are specially ordered or commissioned, not employed for use as part of a motion picture.

Partially in response to the distinguished Mr. Elmer Bernstein, I would point out that in contracts with composers there are standard provisions that for the use of the music we are to pay additional royalties including that composers receive shares of performance royalties directly through his or her performance rights society.

Tax considerations apply to commissioned works. As I am not a tax specialist, I will only allude to advice passed on to me that, in order to generate additional retirement and pension, health, and welfare benefits, in addition to those available through union and guild plans, composers and others prefer to provide their services through corporations of which they are direct employees. Such employer corporations then lend the services of their employees to a motion picture producer to create a work specially ordered or commissioned as part of a motion picture.

As stated by this committee with reference to the termination of transfer provisions in section 203 of the act, including the clause that excludes works made for hire from its operation, "Section 203

reflects a practical compromise that will further the objectives of the copyright law while recognizing the problems and the legitimate needs of all interests involved."

In conclusion, may I emphasize that the act was the result of a legislative process which began with the famous Copyright Office studies of 1955 and culminated 22 years later in the Copyright Act of 1976.

There has been no testimony of any alleged abuses in the motion picture industry.

It is my judgment that any perceived problems are more appropriately the subject of contract negotiations between the parties within the structure of the present act and collective bargaining agreements, where applicable, and do not indicate a legislative problem.

I hope that this statement at least demonstrates that the words "as a part of a motion picture or other audiovisual work" should be retained in present section 101 for a definition of a work specially ordered or commissioned which may qualify as a work made for hire if the parties so agree in writing. Thank you, Senator.

Senator MATHIAS. Thank you, Mr. Colby. Without objection, your prepared statement will be inserted into the record at this point. [Material referred to follows:]

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