Dramatists Guild Agreement covered the arrangements between the dramatist and the producer, but the Shuberts feared that, if the bill passed, ways would be devised of circumventing or abrogating the agreement. A40 The usual agreement provided that the producer dramatist and both shared equally in the sale of motion-picture rights. The committee reported the bill out favorably with an amendment to make it obligatory on the court, rather than permissive, to require that notice of any action be given to all persons on record in the Copyright Office. 441 The committee pointed out that "the best business practice is already in accordance with what the bill proposes, what is desired is to legalize this practice so that it may prevail uniformly and not be confined to the better class of publishers and producers of books, plays, music, etc." A42 The bill was brought up on the consent calendar of the House on two occasions, but upon objection was passed over, and no further action was taken at the session. A43 Although its supporters did not give up the attempt to enact separate "divisibility" legislation, A4 the effort shifted to support of the general revision bills. A45 The Vestal bill, H.R. 10434, was reintroduced in the 70th Congress, and again in the 71st Congress.A46 Hearings were held in April and May 1930 and divisibility received a good deal of attention.447 Under a compromise, the periodical publishers were not to be required to record assignments made by the author.A48 Subject to these amendments, the periodical publishers agreed that, although some might consider them as "sitting pretty" under the existing law, this was shortsighted, and they would support the bill.449 The Shubert interests were still opposed, stating that if "divisibility" became the law, it would "kill the spoken drama." A50 After the hearings, Representative Vestal introduced a revised bill, H.R. 12549, which was reported out by the House Committee on Patents. Asi The committee found that the whole pattern of disposing of copyrights had changed since 1909, and with it, methods of distributing and division of rights. A52 In place of the old practice of merely selling a manuscript or a book, the author now sold separate rights, and the trade practices had made "the act of 1909 impracticable and obsolete." A53 The committee found general support for divisible copyright, stating: "Divisible copyright, which permits the assignee, grantee, or licensee to protect and enforce any right which he acquires from an author without the complications incident to the old law." A54 The report recognized the trade practice of dividing and selling the different rights, A55 in existence for more than a quarter of a century between authors and reputable publishers, and said the main difficulty came in the enforcement of rights, where it became necessary to join the copyright proprietor. The report pointed out that, in the case of the purchase of motion-picture stories from magazines, there was difficulty because, in 9 cases out of 10, "the legal copyright ownership is in a magazine, which purchased only magazine rights, and the other rights which have been granted are mere licenses"; A5 the motion-picture concern then found it advisable to "obtain releases from all the intervening parties and from the copyright proprietor, merely because the act of 1909 recognized only one legal title." A57 The divisibility feature was considered to be "one of the most important revisions of domestic legislation and *** absolutely essential to the effective marketing of an author's work. It is highly important to the author, since easy marketing and clear title increase the immediate demand *** What the good authors want and what the reputable purchasers need is good titles to all pieces of work." A58 A Report of U.S. Register of Copyrights 9 (1928); a similar bill was introduced in the 71st Cong.; H. R. 6987, 71st Cong., 2d Sess. (1929). A44 H.R. 6987, 71st Cong., 2d Sess. (1929). A45 See, e.g., Mr. Weil's statement, Hearings Before House Committee on Patents on H.R. 9639, 71st Cong., 2d Sess. 39 (1930). A H.R. 8912, 70th Cong., 1st Sess. (1928); H.R. 6990, 71st Cong., 2d Sess. (1929). A47 Hearings Before the House Committee on Patents on H.R. 6990, 71st Cong., 2d Sess. (1930). A48 Id. at 112, 133. A4 Id. at 114. As Id. at 168. All H.R. REP. NO. 1689, 71st Cong., 2d Sess. (1930). A: Id. at 2. An Id. at 3. AM Ibid. The report also indicated that special provision had been made in case of periodicals to exempt them from the usual recording requirement since each issue carried literally hundreds of separate copyrightable items, and publication of a magazine was "fair notice to the world in general that the magazine or newspaper has a property right to the extent of its newspaper or magazine right in the material contained in the particular issue." A59 The committee also felt that the recording provisions would make the recording of assignments and licenses as "advisable as is the recording of deeds." A60 A vigorous dissenting report was filed by Representative Sirovich, in which he concentrated on the divisibility feature of the bill.A61 Representative Sirovich felt the bill would benefit the motion picture companies at the expense of the dramatic producer, who, up to this point, had been entitled to up to a "50 percent interest in the motion picture, talkie, television, etc., rights in a play," and the divisibility feature would "annihilate the spoken drama." A62 The bill was discussed extensively on the floor of the House. Representative Vestal said that most of those who had testified had endorsed the bill, but that there had been objections to the divisibility feature; he felt that this opposition had been withdrawn. A68 He urged the House to permit assignees or licensees to protect and enforce their rights and to recognize the "universal commercial practice of treating the separable rights *** comprised in a copyright as assignable." A64 In reviewing the difficulties under the present law, he emphasized the need for good title, terming the suggestion that this section would destroy the spoken drama "erroneous indeed" since it would not change the trade practice. 465 Representative Busby opposed the divisibility portions of the bill strongly, arguing that the dramatic producers had not changed their position, and that divisibility was not necessary and could be "misleading to every user of copyright and be destructive of the American interests that have to rely upon them." A66 House passed the bill on January 5, 1931. The The Senate committee held hearings and heard arguments from the proponents and the opponents of divisibility as well as some who didn't see that it made much difference. A67 The Association of the Bar of the City of New York favored divisibility because it would give legal sanction to a "trade practice of doubtful legal effect" and would obviate the necessity of joining the record owners in a suit, where they might have no interest in the particular right. A68 The Senate committee reported the bill with amendments, some of which related to the recordation of assignments and the necessity of an assignment being in writing. A69 usual arguments were presented in a report, and in the Senate. 470 The debate in the Senate was stopped by a filibuster on another matter and the bill was not brought to a vote. The The next Congress saw the reintroduction of the Vestal bill in the House and Senate, but no action was taken on these bills. A71 After the death of Representative Vestal, Representative Sirovich, the new chairman of the House Committee on Patents held hearings and introduced a series of revision bills. A72 The bills followed the general pattern of the Vestal bills on the question of divisibility and permitted the author or owner to license any part of his rights and enabled him to license these for "a particular mode, form, or medium of expression, or to a particular type of presentation ***", A73 and enabled the licensee to proceed against an infringer in his own name, without joining the owner.A74 The bill specifically stated that a license for first publication in newspapers or periodicals was to secure "an exclusive right to complete the publication of such work prior to its public presentation in any mode, form, or medium of expression by anyone else, including the owner of the copyright, "A75 a provision the periodical publishers had strongly urged. The periodical license was to expire automatically A07 Hearings Before Senate Committee on Patents, 71st Cong., 3d Sess., 56, 117, 199, 273 (1931). A88 Id. at 273. A S. REP. NO. 1732, 71st Cong., 3d Sess., 30, 31 (1931). A70 74 CONG. REC. 6244, 6245, 6725. A71 There were some amendments: H.R. 139, 72d Cong., 1st Sess. (1931); 8. 176, 72d Cong., 1st Sess. (1931). A72 72d Cong., 1st Sess. (1932): H.R. 10364; H.R. 10740; H.R. 10976; H.R. 11948; H.R. 12094, and H.R. 12425. in 90 days after completion of publication, or become a nonexclusive license in 3 years, if not exercised, unless the contract specifically provided otherwise. A76 A further provision was added in the later bills to the effect that any assignment or license by the owner of a copyrighted motion picture to exhibit the picture in any theater was to include the right to reproduce the sound recorded in the film, and no owner could license the exhibition of film unless he had authority to license the reproduction of the sound and music in the picture. A77 Hearings which had begun before these bills were introduced were held on the general principles of a new bill and later on the specific bills. A78 There was general agreement that one of the main objectives of a new bill should be "divisibility" and those who testified in favor of such a provision included the former register, Mr. Solberg, the acting register, Mr. Brown, representatives of the Authors' League, the Dramatists Guild, the periodical publishers, the broadcasters, and the motion picture producers and distributors. A79 Several witnesses wished to see safeguards with respect to adequate recordation of assignments and licenses. AsO The authors alleged that some magazines refused to retransfer rights, but the periodical publishers felt that no reputable magazine would do this in 1932.A81 The periodical publishers insisted on priority, but felt that they could accomplish this by contract.452 The only group opposing "divisibility" on principle appeared to be the music publishers. A According to counsel for Songwriters Protective Association, this opposition was "mainly psychological," the music publishers having been in the habit of taking an assignment of the entire copyright, and keeping it.A84 At hearings held the next month, ASCAP felt some provisions gave the licensees too much, but the periodical publishers who had secured some additional concessions in other areas, approved. Ass After further hearings, the committee reported out H.R. 1097648 but the House finally considered a similar bill, H.R. 12094,487 debated it for a few hours and recommitted it to the committee. The committee report included the following paragraphs: A88 "License under copyright.-The author may also license any part or interest in his work. This means that an author has complete legal right to convey any and all privileges to licensees. As an illustration of this provision, an author of a novel may legally license magazine rights to a magazine, book rights to a book publisher, theatrical rights to a manager, motion picture rights to a producer, and radio rights to a broadcaster. "Licensees.-The bill further protects a licensee to the same extent as the present act protects a copyright proprietor. Without looking to anybody else the licensee has the absolute legal right to enforce and protect his license. This again makes for clarity of titles and clarity of title is as essential to the author as it is to the licensee." The exact language is also contained in the report accompanying H.R. 12094.A89 During March 1932, Senator Dill introduced another general revision bill.A90 This bill would have enabled the author or owner to assign or license the entire copyright or any right, wholly or separately, generally or subject to limitations, for the entire or a limited term or a specified territory, but added: "Provided, That a license or assignment to make a motion picture shall be deemed to include all motion-picture rights of reproduction and exhibition of same from the film so licensed, no matter by whom it is exhibited.” A91 The same section provided that any person deriving an interest in the copyright might "prevent infringement of, or interference with any or all of his rights in the copyright by legal means and may obtain damages." Assignments were to be recorded and recordation was required before the assignee could bring suit.A92 Senator Dill reintroduced substantially the same bill in the 73d Congress. A93 AT Ibid. A77 13 of H.R. 11948, H.R. 12094 and H.R. 12425, all introduced in the 72d Cong., 1st Sess. (1932). A Hearings Before the House Committee on Patents on General Revision, 72d Cong., 1st Sess. (1932). ABD Id. at 236, 243, 299. AN Id. at 59, 349, 354. A82 Id. at 354. AK Id. at 83, 96, 144. AM Id. at 83. ABS Hearings Before the House Committee on Patents on H.R. 10976, 72d Cong., 1st Sess. 95, 185 (1932). ASH.R. REP. NO. 1008, 72d Cong., 1st Sess. (1932). A H.R. REP. NO. 1361, 72d Cong., 1st Sess. (1932) A H.R. REP. NO. 1008, 72d Cong., 1st Sess., 3 (1932). A H.R. REP. NO. 1361, 72d Cong., 1st Sess. (1932) ARO S. 3985, 72d Cong., 1st Sess. A91 Id. § 15. A9 Id. $ 16, 17. A S. 342, 73d Cong., 1st Sess. (1933) pointless." 172 This may be true, but dispensing with the theory would not solve some of the problems which brought the rule into being. It would resolve the major difficulty in the periodical field, if notice were no longer required, but there would still remain the need for determining and tracing the ownership of copyrights and the right of a transferee to sue. A separate study of foreign systems which do not rely upon formalities, has been prepared in order to see what difficulties they have experienced with divisibility. 173 It is apparent, from the English experience alone, that under any copyright system the theory of divisibility raises problems as to the right of transferees to sue, joinder of parties, and also as to the extent to which rights may be divided and subdivided. C. RIGHT TO SUE Courts in foreign countries operating under systems of copyright without formalities have experienced difficulties in determining whether a partial transferee may sue, at least without joining his grantor. 174 Where the courts have required joinder, the transferee may, because of the absence of his grantor, find himself in the same situation as the licensee in the United States. The new English statute provides that an exclusive license shall be treated as though it were an assignment, 175 but nevertheless makes provision for the joinder of other parties. D. JOINDER OF PARTIES It will also be necessary to determine, under any system of copyright, which parties should or may be joined in suits, and the new English statute contains elaborate provisions for joinder of the owner of the copyright where the assignee or exclusive licensee brings an action, and for protecting defendants against double proceedings and damages. 176 Similar provisions would have to be written into any revision of our law providing for divisibility, and we have seen that various proposals have been made either to enable the defendant to join anyone who has recorded a claim in the Copyright Office or to permit joinder of anyone with an interest, upon order of the court." E. RECORDATION 177 Some foreign copyright systems require no formalities for the initiation of copyright but do provide for the recordation of transfers. Proposals for the introduction of similar systems in the United States have included provisions for recordation of transfers and of rights in the copyright. 178 Again, no matter which system is used, there will probably need to be provision for voluntary or mandatory recordation of both assignments and licenses. 179 Whether this should 172 Id. at 6. 173 See Bogsch, Divisibility in the Laws of Foreign Countries, annexed hereto as Supplement 2. That memorandum indicates that in most foreign countries copyright is divisible and the assignee or exclusive licensee of a particular right may sue in his own name; but that problems remain unresolved as to the joinder of other copyright owners whose rights may be involved, and the extent to which rights may be divided. 174 Report of the Copyright Committee, Cmd. 8662 at 101 (1952); COPINGER AND SKONE JAMES, COPYRIGHT, 103-116 (8th ed. 1948). 177 See Appendix, pp. 32, 33, 37. 178 See, e.g., Chafee, Reflections on the Law of Copyright, 45 COLUM. L. REV. 503, 515, 732 (1945). 179 See Appendix, pp. 31, 32, 34, 35, 37. See also, S. 3043, 76th Cong., 3d Sess. § 16, (1940). include nonexclusive licenses and compulsory licenses is an open question. F. SUBDIVIDING RIGHTS Any revision providing for divisibility will have to face the task of determining whether to list a number of specific and distinct copyright monopolies, as section 1 of the present law does 180 or whether to outline some single general clause such as that suggested by Chafee, "to produce or reproduce the work or any substantial part thereof in any material form whatsoever." 181 Once this is decided, it will be necessary to determine how far the rights may be divided, giving due consideration to industry practice, but remembering that endless division of rights will complicate the tracing of ownership and will raise difficult problems of the right of transferees to sue. The new English statute names the rights covered by the copyright, 182 and permits the assignment of one or more of the specified classes of exclusive rights as well as assignments for a partial term, or for one or more countries. 183 Apparently each class of rights, is transferrable as a unit but may not be further subdivided. A specific statement, making copyrights divisible in this manner, certainly warrants consideration in any revision providing for divisibility. G. NOTICE Even a system of no formalities may include provisions for the optional use of the copyright notice. If notice provisions are included, either as a requirement or optionally, divisibility would raise various problems relating to whose name is to appear in the notice. An assignee of the entire copyright may use his own name in the copyright notice after recordation in the Copyright Office.184 Assuming divisibility, will it be best to require that this rule be adhered to for each transfer of a particular right? Will the partial transferee be permitted to substitute his name in the copyright notice for his particular right? If so, will the right of substitution be granted for any partial transferee or only for enumerated rights; and should the partial transferee be required to state in the notice what rights he holds? It will also be necessary to provide a legislative solution to the periodical notice problem. This might take the form of permitting one notice on a periodical in the name of the publisher to cover all articles and stories in the periodical, and granting an individual copyright to any author whose name appears in connection with the story or article, subject to the author's assignment or license to the periodical, 185 H. TITLE Foreign systems of copyright without formalities are generally based upon the premise that copyright in a work belongs to the author, and that all rights must come from him. The old English law provided that the author was the first owner of copyright except in cases 180 17 U.S.C. § 1 (1952). 181 Chafee, Reflections on the Law of Copyright, 45 COLUM. L. REV. 503, 522 (1945). 182 Copyright Act, 1956, 4 & 5 Eliz. 2 c. 74 § 2. 183 Id. $36. 184 17 U.S.C. § 32 (1952). 185 Cf. Laskin, All Rights Unreserved in COPYRIGHT LAW SYMPOSIUM, No. 7 at pp. 91, 100 (1956). |