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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
of dubious value to employers and employees alike (which) might also reopen a number of other issues. [S.R. at 105.)
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
Whether the party who commissions the work is to be con
sidered the author under $201.(b) of the Act, consistent with the
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
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.)
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
The one remaining issue on ownership of copyright that
the status of "works made for hire" under both the existing
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
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
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
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,
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
May I respectfully point out, as is emphasized below, that the Act now provides that, for a work specially ordered or
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.