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from all interested parties, including the Register of

Copyrights, when it became Law, and in the absence of any demon

strated 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.

As I expect that others will present all sides, especially

the public interest, with respect to other authors, publishers

and producers, including the changes the Amendment would work

upon contributions to collective works, such as encyclopedias, I

will focus my remarks on the impact of the Amendment upon the

motion picture industry.

Before I do so directly, it may be appropriate first to

analyze the Amendment in relation to several other sections of

the Act with respect to what was referred to by this Committee in

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of dubious value to employers and employees alike (which) might also reopen a number of other issues. [S.R. at 105.)

THE AMENDMENT

The Amendment would delete three of nine categories of works

which, even though works specially ordered or commissioned, would

not qualify for treatment as

a "work made for hire," even if the

parties were willing so to agree in a written instrument signed

by each of them.

Among the three works to be excluded are works

specially ordered or commissioned for use as part of a motion

picture or other audiovisual work.

The consequences of this proposed change would affect, for

example:

1.

Whether the party who commissions the work is to be con

sidered the author under $201.(b) of the Act, consistent with the

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fact that the parties can now allocate the rights arising under the Act, even if the work is deemed to be a work made for hire.

2. The nationality of the work, its qualification for protection under the Act, and under foreign laws and treaties. $104.(b) of the Act.

3. Whether the carefully crafted Termination of Transfers and Licenses provisions of $203. and $304. (c) will apply to the work, since each of these Sections, for reasons to be reviewed below, excludes works made for hire from their operation.

4. Duration of the copyright term under $302. and $304. of

the Act.

As stated by this Committee:

The right of termination would not apply to "works made for hire," which is one of the principal reasons the definition of that term assumed importance in the development of the bill. (S.R. at 108.)

Indeed, that:

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 otherwise. (Emphasis added.) (S.R. at 104.)

As noted by Abraham L. Kaminstein, late Register of Copy

rights, in summing up, following the 1965 Hearings before the

Committee on the Judiciary of the House of Representatives

(really the end of the debate on these topics prior to enactment.

of the Act in 1976):

Most amazing to those of us closely involved in the
development of the bill is what has happened with respect to
the so-called "reversion" or termination-of-transfers pro-
vision now found in section 203. This, which was once by
all odds the most explosively controversial provision in the
bill, appears to have largely receded as an issue in general
revision.

The one remaining issue on ownership of copyright that
should be mentioned here is raised by the proposal advanced
on behalf of screen writers and composers which would change

the status of "works made for hire" under both the existing
law and the bill, and would substitute the equivalent of the
"shop right" concept of the patent law. The concept of an
employer for hire as "author" is an important one in the
present statute, and in our 1961 report we recommended con-
tinuation of the present rule that all rights vest in the
employer as the most practical solution to the problem. The
proposed "work made for hire" provisions, which are based on
this premi se, represent a carefully worked-out compromi se
whose effects are felt throughout the bill. The suggestions
for changing them are put forward by authors who have al-
ready achieved some of the goals they are seeking in the
bill by means of collective bargaining agreements, and on
balance I believe that the arguments in favor of their sug-
gestions are substantially outweighed by the practical dif-
ficulties they would present. (Hearings on H.R. 4347,
Serial No. 8, Part 3, at 1866.]

Parenthetically, we may observe that the "shop right" then

suggested by composers was not analogous to the patent laws for, as analyzed in Copyright Office Study No. 13, at page 140, pre

pared for this Committee, and reprinted, together with thirty

three companion Studies, in 1 Studies on Copyright, Arthur Fisher

Memorial Edition (1963) 717, at 732:

It is enlightening to note how the U.S. patent law has worked out in this connection. The patent statute makes no special provision regarding the ownership of patents or inventions made by employees for hire, but the following rules have been developed by the courts in construing employment contracts and applying trade custom. If an employee makes an invention in the course of his general employment or through the use of his employer's facilities, he is entitled to secure the patent, but his employer will have a "shop right" in such patent. This "shop right" is in the nature of an implied nonexclusive license to utilize the patent throughout the term of protection. However, if an employee is hired specifically for the purpose of making a particular invention, or if during his employment he is specifically assigned to work on an invention, the employer is considered to be entitled to ownership of the patent and may compel the employee to assign to him the patent secured by the employee.

At common law, the employer has always been recognized as

owning all the aspects of the literary product

which he engaged

the employee to create.

This concept was taken over into the

Copyright Act of 1909 by the provision that an employer for hire

was to be deemed the author, and have all the rights of an

author.

The "shop right" suggested by the screen writers and

composers in their amendment proposal, upon analogy to the patent

laws, is inapplicable.

Borge Varmer, of the Copyright Office,

made this clear in Study No. 13 "Works Made for Hire and on Com

mission" prepared for the Congress (p. 140), reprinted in I Stu

dies on Copyright, Arthur Fisher Memorial Edition, 717, at 732

(quoted above).

Thus, the "shop right" does not apply if the employee is

hired specifically for the purpose of making a particular inven

tion, or if during his employment he is specifically assigned to

work on the invention.

On the contrary, the employer owns it in

its entirety.

Applying the analogy, there would certainly be no "shop

right" where a work has been specially ordered or commissioned,

or is prepared by an employee within the scope of his employment.

As Mr. Kaminstein stated in the Register's 1965 Supplementary Report (Yellow Book), Copyright Law Revision Part 6,

at

66:

The definition now in section 101 represents a carefully worked out compromise aimed at balancing legitimate interests on both sides.

PRACTICE AND EXPERIENCE

In his statement to the Senate on February 2, 1982 [Congres

sional Record S. 292], in explanation of s. 2044 ("the

Amendment"), the Honorable Senator from Mississippi, Senator Thad Cochran, did not set forth specific reasons why motion pictures

and other audiovisual works (collectively hereinafter referred to

as "motion pictures") were included in the Amendment, and there

fore to be excluded from that part of the present $101. defini

tion of a "work made for hire."

The latter now permits a work

specially ordered or commissioned for use as a part of a motion picture to be considered a work made for hire if the parties expressly agree, in a written instrument signed by each of them,

that it shall be so considered.

The Honorable Senator said in part that:

Such a change in this definition would protect the author's
copyright in the works described, except where express
agreement is made to do so otherwise, while continuing to
cover as a "work made for hire" such minor subsidiary
contributions as translations, indexes, maps, etc.
I might add that this amendment also brings the definition
for a "work made for hire" in section 101 into line with the
provisions in section 201 concerning the copyright ownership
of works made for hire and contributions to a collective
work. Thus the congressional intent to exclude these items
has been expressed previously in section 201.

May I respectfully point out, as is emphasized below, that the Act now provides that, for a work specially ordered or

com

missioned to be considered a workmade for hire, the parties must "expressly agree in a written instrument signed by them that the

work shall be considered a work made for hire." And, in

$201.(b), provision is now made that the parties may allocate and

divide wall of the rights comprised in the copyright" between them, if they "have expressly agreed" to do so in a written in

strument signed by them.

There is, I respectfully suggest, no inconsistency between the definition of a work made for hire in $101., and the quoted

portion of $201.(b).

As the legislative history analyzed in this

Statement demonstrates, as summarized by this Committee in 1975

in S.R. 94-473 at page 104:

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 otherwise.

However, in order to anticipate arguments that may be made

by supporters of the Amendment for inclusion of motion pictures in the Amendment, this statement will, at this point, discuss

some of the ways in which contracts and copyright rights are dealt with in the motion picture industry. These practices directly affect the production and distribution of motion pictures, not only in the United States, but in every other country in the

world where our motion pictures are exhibited.

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