book publication, motion picture, dramatic, radio, television, etc.) would be bargained for separately, and that authors would retain all rights they did not sell. This conception of divisibility as a kind of universal panacea permeated the 1932 hearings and, as in the 1930 hearings was closely related to the reversionary aspect of renewals. Mr. Sirovich and others apparently felt that, as long as the author retained some or most of his bundle of rights, he would always have a reversionary interest or a "second chance" which would make renewals unnecessary. 467 At least at the beginning, the Committee either did not realize or did not seem concerned about the practical possibility that the author would be induced to make an outright assignment of his copyright, leaving himself with no continuing interest whatever. On February 29, 1932, Mr. Solberg, who had retired as Register of Copyrights but was still an active supporter of Berne adherence, made a lengthy statement to the Committee concerning the term of copyright.As Although stressing the advantages of the "Union term" (life-plus-fifty) he pointed out that acceptance of this term was not necessary for the United States to join the Berne Union, and he indicated that he was not opposed to a straight term of 56 years. However, Mr. Solberg was seriously concerned about the effect of automatically extending the term of all subsisting copyrights to the full 56 year term, without the necessity of making renewal registration for those works in their first 28 years. He pointed out that automatic extension would double the term for nearly four million works, and that "this seems of doubtful value or necessity." He noted that only about five percent of copyrights were being renewed at that time and that, if renewal registration were required for subsisting copyrights, only 200,000 rather than four million copyrights would be extended. He therefore proposed that, with some minor revisions, the renewal provision be retained for subsisting copyrights still in their first term.470 " A69 A71 Mr. Sirovich was astounded to learn that only five percent of copyrights were then being renewed, and his immediate reaction to Mr. Solberg's proposal concerning subsisting copyrights appeared favorable.A However, he still advocated a straight term of 56 years for future works A because of his conviction that, under a divisible copyright, the author would retain rights which might become valuable at a later time: "The CHAIRMAN. Who knows what the perfection of television might mean? Some of the old rights that are now in the sphere of television might be reserved. Some years ago, nobody dreamt what motion pictures would become. Then, you men [the magazine publishers] had full right to everything, but to-day every author will speak for his dramatic, radio, moving-picture, and television rights, and who knows what this era will bring forth that will give the author more opportunities than in the domain of serial rights and first publication which is so rich to-day for the magazines. "The renewal period is given only to those authors who avail themselves of the right of renewal. If we make the terms of the copyright 56 years, we may be giving them some real property right that may mean something to them and to their descendants." A73 On March 10, 1932, after the hearings had been going on for almost six weeks, Representative Sirovich introduced the first A of the six bills he presented in the 72d Congress; its term provisions, and those of the second Sirovich bill of March 22,45 were not fundamentally different from those of the Dill bill 4" and of the Senate version of the Vestal bill: A77 Basic term: copyright from creation, to expire 56 years from "the date of first public presentation." Ace See note A32 supra, and text thereto. A67 See, e.g., Hearings on General Revision, supra note A59, at 100-01, 330-33, 360; Hearings on H.R. 10976, supra note A59, at 187-88; Hearings on H.R. 11948, supra note A59, at 122-23. Aes Hearings on General Revision, supra note A59, at 321-33. A69 Id. at 327. ATO Id. at 327-30. AT1 Id. at 330-33. A72 Id. at 330-32, 360. A73 Id. at 360. A74 H.R. 10364, 72d Cong., 1st Sess. (1932). A See notes A52-56 supra, and text thereto. Special terms: none. Reversion: none. Subsisting copyrights: would be extended to 56 years from first public presentation without the need of renewal registration. If a binding agreement had been made to renew the copyright for the benefit of the proprietor of the first term, the agreement could be continued on the same royalty basis or upon payment of the same lump sum at the end of the first 28 years. "If there was no agreement for renewal, the copyright shall become the property of the author at the end of the twenty-eight year period." During the second phase of the 1932 hearings, which took place between March 21 and March 25,478 criticism of basing the term on the "date of first public presentation" was advanced on the ground that it was too indefinite and difficult to ascertain.479 In an effort to meet these objections Representative Sirovich revised the term provisions in his third bill of March 30: 48 copyright was still to terminate 56 years after first public presentation, but if the work had not been publicly presented the copyright would end three years after the author's death, or three years after creation if the author was a corporation. The committee report on this bill contains the following comments: A80 "In place of the awkward method of providing two terms of 28 years each, the bill substitutes one term of 56 years, which begins to run on the first publication or other public presentation of the work. The disadvantage of two terms of copyright has been that in many cases an author loses his copyright by failing to renew and too many controversies have arisen over the rights of purchasers and the rights of authors on the expiration of the first term. The author here is given a complete term of 56 years and his copyright for that term is a property right which can be easily dealt with, and under this provision no misunderstandings can arise. On the death of the author his copyright continues in favor of his personal representatives until the end of the term, unless he has already assigned his copyright, in which case the same holds true of the copyright owner." A82 He On March 25, 1932, Nathan Burkan, Counsel for ASCAP, testified forcefully in favor of the reversionary feature of renewals; 43 he said: "I may be in conflict with my own people on this, but I have strong views on the subject, influenced by what Mark Twain told the Patents Committee in 1909." AS4 argued that, as in the House version of the Vestal bill, the rights of an assignee or licensee should revert "to the author or his dependents *** at the expiration of a period of 28 years.' Representative Sirovich asserted that such a provision would be unnecessary in view of the divisibility provisions of his bill,4 but Mr. Burkan stressed that, "as a rule," the author is required to sign "a document by which he divests himself of all his rights in his work for all time for a mere pittance." AST " A85 A91 A90 A86 The term provisions of the fourth Sirovich bill of May 7, 1932,Ass were substantially the same as those of its immediate predecessor. However, at the final Sirovich hearing on May 12 469 Mr. Burkan again strongly recommended a reversion to the author and his family after 28 years; he submitted a brief and a draft amendment for the purpose." Mr. Sirovich still seemed to feel that divisibility would solve the problem, but Mr. Burkan was most emphatic in his disagreement. He argued that a technical provision allowing the author to divide up his rights and sell them separately would not keep him from being forced to make an outright sale of his entire right for a small sum." A80 Id. at 169-70. A92 Although the title page of the March 21-25 hearings indicate that they were held on H.R. 10976, the fact is that the bill bearing that number was not introduced until March 30, after that phase of the hearings was concluded. A81 H.R. 10976, 72d Cong., 1st Sess. (1932). A82 H.R. REP. NO. 1008, 72d Cong., 1st Sess. 4 (1932); see also id. at 2. Asa Hearings on H.R. 10976, supra note A59, at 187-88. AS4 Id. at 187. A85 Ibid. Ase Id. at 187-88. AST Id. at 188. A88 H.R. 11948, 72d Cong., 1st Sess. (1932). As Hearings on H.R. 11948, supra note A59. A90 Id. at 121-23. A91 Id. at 127-28, 155-56. A92 Id. at 122-23. As a direct result of these arguments a new proviso was added to the fifth and sixth 4 Sirovich bills. It was restricted in terms to "musical and dramat ico-musical compositions," and it provided that all assignments and grants would cease to be valid after the first 28 years of the copyright: ***** the reversionary interest in the copyright in such [musical and dramatic musical] compositions expectant at the termination of that [28 year] period shall, notwithstanding any agreement to the contrary, revert to the author if he be living, and if not living, such reversionary interest shall be disposed of either as directed by the will of the author or according to the applicable laws governing the intestate disposition of personal property upon the death of such author." The fifth Sirovich bill was reported A and debated briefly in the House," but no further action was taken in the 72d Congress. A100 A97 G. DEVELOPMENTS, 1933-1936: THE DUFFY, DALY, AND SIROVICH BILLS Two new bills aimed at doing the minimum necessary to permit Berne adherence were introduced in 1933, and on February 19, 1934, President Roosevelt forwarded the Convention itself to the Senate for possible ratification, 408 As an outgrowth of hearings in the spring of 1934,49 an Interdepartmental Committee was organized; it prepared a new general revision bill, introduced by Senator Duffy on March 13, 1935.4101 About a month later the presidential recommendation concerning the Berne Convention was reported favorably by the Senate Foreign Relations Committee; the Convention was actually ratified by the Senate on April 19, 1935,4 but this action was withdrawn immediately and the Convention was returned to Committee to await action on the Duffy bill.A A104 A103 A102 The term provisions of the first Duffy bill (S. 2465) were not unlike those of earlier measures, but lacked the reversionary feature previously urged by Mr. Burkan: A105 Basic term: 56 years from publication or, if unpublished, from creation. Reversion: none. Subsisting copyrights: would be automatically extended to 56 years from the date of original copyright. The remainder of the section was unclear, but apparently provided that, at the end of 28 years, copyright would revert to those who would have been entitled to the renewal under preexisting law." A106 A93 H.R. 12094, 72d Cong., 1st Sess. (1932). A94 H.R. 12425, 72d Cong., 1st Sess. (1932). A H.R. REP. NO. 1361, 72d Cong., 1st Sess. (1932). A96 75 CONG. REC. 11059-72 (1932). A97 H.R. 5853, S. 1928, 73d Cong. 1st Sess. (1933). A98 EXEC. E, 73d Cong., 2d Sess. (1934). 499 Hearings on S. 1928 Before the Senate Committee on Foreign Relations, 73d Cong., 2d Sess. (1934). A100 The Interdepartmental Committee held conferences and issued a report, which was printed as an exhibit to the Committee report on the Convention. EXEC. REP. NO. 4, 74th Cong., 1st Sess. 9-18 (1935). The report referred very briefly to renewals, noting that a single term is "calculated to be of benefit to authors," and that "experience in the past has shown that authors frequently forget to renew their copyright and afterwards discover that they could have profited by the protection of the second term of 28 years." Id. at 16. A101 S. 2465, 74th Cong., 1st Sess. (1935). A102 EXEC. REP. NO. 4, 74th Cong., 1st Sess. (1935). A103 79 CONG. REC. 6032 (1935). A104 Id. at 6099. A105 A letter dated March 20, 1935 from the Chairman of the Interdepartmental Committee to Louis D. Frohlich, printed in the record of the 1936 hearings, indicates that the Committee was not opposed to providing a reversion in a future, more comprehensive bill: It appeared highly desirable to the committee to remove the formality of renewal registration. It may be added that practically everyone who has given attention to the matter during the discussions before committees of Congress for some years past has approved the idea of a single term of copyright in place of the two terms, original and renewal, existing under present law. The right of renewal frequently is not exercised, with resulting loss of copyright in valuable works, and it is believed the single term is an improvement from practically every point of view. Your proposal for a reversion of the latter part of the copyright term to the author or his family interested the committee. As you say, the British law gives this right, which accrues 25 years after the death of the author. It may be possible at a future time to consider further the value of this proposal, but the purpose of the present draft hardly seems to justify introducing it. Hearings on Revision of Copyright Laws Before the House Committee on Patents, 74th Cong., 2d Sess. 342, 343 (1936). A100 The letter to Mr. Frohlich, supra note A105, indicated that the purpose of this seetion was "to give the second 28 years of copyright in all cases to the same persons who would receive it under existing law, subject, however to any agreement made for the disposal of the renewal term which would be enforceable under the present statute. Ibid. A107 On May 8, 1935, Senator McAdoo, Chairman of the Senate Committee on Patents, held an "informal conference" on the Duffy bill.^ At this hearing Mr. Burkan once again strongly urged that the bill be changed to provide a reversion to the author and his family. However, he also made clear that he did not favor the renewal device ("I find a great many heirs forget to renew and therefore they lose their rights"), A109 and that he preferred the English sys A108 tem of an automatic reversion after a fixed term. A few days later the Duffy bill as amended by the committee was introduced as S. 3047, and reported.Aш Mr. Burkan's suggestion for a reversion had not been adopted, but the section on extension of subsisting copyrights had been clarified; if, on the date the act took effect, the copyright was still in its first 28-year term, copyright for the period beyond 28 years would vest in those entitled to claim renewal under pre-existing law, subject to any agreement covering the renewal term. In the course of the Senate debates on S. 3047 during the summer of 1935, Senator Duffy commented twice A112 that the renewal device had been dropped in favor of a single term at the request of the authors, because "many times it is found that the authors have been negligent, that they have slept on their rights, so to speak, and neglected to make proper application." A118 The Duffy bill passed the Senate on August 7, 1935, A114 with an amendment giving a special copyright term of twenty years from publication for "artistic models or designs intended to be applied to or embodied in manufactured products." The bill, as amended, was introduced in the House on August 8.4 A115 A117 A116 Shortly after Congress reconvened in 1936 two new revision bills were introduced in the House: the Daly bill (H.R. 10632) on January 27,a and the Sirovich bill (H.R. 11420) on February 24.4 Both of these bills adopted a reversionary feature such as that advocated by Nathan Burkan. The following were the basic term provisions of the Daly bill: Basic term: 56 years from publication or, if unpublished, from creation. Special terms: 20 years from publication for "artistic models or designs intended to be applied to or embodied in manufactured products." Reversion: all assignments and grants would terminate at the end of 28 years, and all rights would revert to the author, his widow and children, executors, or next of kin, as under pre-existing law; any agreement covering the reversionary period would be null and void. Subsisting copyrights: would be automatically extended to 56 years from the date of original copyright. If, on the date the act took effect, the copyright was still in its first 28-year term, copyright for the period beyond 28 years would vest in those entitled to claim renewal under pre-existing law, subject to any agreement covering the renewal term. A118 The term provisions of the new Sirovich bill were essentially the same as those of the Daly bill, although the bill offered no protection for designs and the provision governing the extension of subsisting copyrights was somewhat vaguer. In February, March, and April, 1936, the House Committee on Patents under the chairmanship of Representative Sirovich, conducted extensive hearings on the three pending bills: Duffy, Daly, and Sirovich. The first speaker was Gene Buck, President of ASCAP; at the very outset of his remarks he expressed his opposition to a straight 56-year term and urged the Committee to consider a reversion to the author or his family after 28 years.A A119 "In saying that, I am talking just 100 percent for the creators, because, if you gentlemen know anything about men who live by writing books and songs and plays, there have been times in the history of the world where occasions have arisen and where smart and clever men, with money, would take this creator fellow and buy him outright, or his work. A107 A transcript of the proceedings is printed in Hearings, supra note A105, at 1402-19. A108 Id. at 1410-11, 1414; see id. at 1417. A109 Id. at 1411. A110 S. 3047, 74th Cong., 1st Sess. (1935). A111 S. REP. NO. 896, 74th Cong., 1st Sess. (1935). A112 79 CONG. REC. 12252, 12262-63 (1935). A113 Id. at 12252. A114 Id. at 12615. A115 Id. at 12904. A116 H.R. 10632, 74th Cong., 2d Sess. (1936). A117 H.R. 11420, 74th Cong., 2d Sess. (1936). This replaced H.R. 11374, introduced on February 21, which was withdrawn because of errors. A118 Hearings, supra note A105. A110 Id. at 4-5. "*** I want a law to have it prescribed that the author, the creator, is the man who shall have the renewal, for this very distinct reason: This creative gift sometimes does not last long. I have known of men who have written great songs, one that the whole world sang, and never wrote another. These men have wives, they have children, and I want to see to it, with all the force that I possess, that we can enlighten men who address themselves to this highly important question, that if that man has passed on, then that his widow and children shall have the right to renew at the end of 28 years." These views were reiterated and underlined by Nathan Burkan and others in testimony and written statements filed with the committee.4121 In reply to these comments Senator Duffy asserted that the renewal had been dropped "at the request of the authors, especially the Authors' League," and that "I, personally, do not care whether it remains in the bill or not." Representative Sirovich also seemed impressed by the arguments in favor of a reversion. " A122 11 A120 On the other hand, several witnesses attacked renewals in general and the reversion in particular. Sydney Kaye, representing broadcasters, pointed out that the limitation on assignments and grants: "*** may be just as awkward for an author who wants to sell something as it is for the person who wants to buy it, and may be very awkward for a man who makes a play out of a book and then finds that he cannot use it after 28 years; or for a college that adopts a song as its college song, and gets all the rights it can have granted, and at the end of the 28 years finds that it cannot perform it." " A124 "A125 A local broadcaster favored a straight term over the renewal system "which has resulted in unnecessary loss of copyright protection and confusion as to ownership of the copyrights." A music publisher strongly criticized renewals as "cumbersome and out-of-date" and as providing "a hardship for its technical requirements are often unworkable and in consequence valuable copyrights have thus been thrown into the public domain." A126 He felt that the proposed reversion "would obviously create an impossible situation, repugnant to all composers and authors," "A127 and another music publisher agreed that such a restriction on assignments would not only unfairly damage publishers but would also reduce the amount an author could get for his rights. A128 Edwin P. Kilroe, representing a motion picture company, felt the most important thing was that "the provisions of the act relating to the term are clear and concise and definite as to the persons who may own the renewed term of copyright so that these rights may be dealt with now." A129 Another witness urged that too long a term not be given to copyrighted designs; he felt that for such works a term of two years, possibly with a longer renewal term, would be ample.A A130 H. THE "SHOTWELL COMMITTEE" BILL AND OTHER DEVELOPMENTS, 1937-PRESENT In January 1937, shortly after the opening of the 75th Congress, Senator Duffy introduced a new general revision bill 4131 in which the term provisions were merely a slightly revised version of the duration-renewal section of the 1909 Act: Basic term: 28 years from publication (or, if unpublished, from creation), with the possibility of renewal for a second 28 years. A182 Special terms: none. Reversion: second term would revert to exactly the same classes of persons as those named in the 1909 Act. A133 Subsisting copyrights: no special provision was necessary, since the existing law was unchanged. A129 Id. at 1009; see also id. at 1180-81, 1185. A130 Id. at 924; see also id. at 928. A131 S. 7, 75th Cong., 1st Sess. (1937). A133 For works registered in unpublished form under the Act of 1909, copyright was to begin on the "date of deposit." A133 As in the later 1940 amendment (54 Stat. 51 [1940], 17 U.S.C. § 24 [1958]), the author would have been permitted to renew a contribution to a periodical or other composite work, whether or not the contribution had been separately registered. |