The listing is not complete; there are other specialized uses; e.g., the "cavalcade" rights.158 The music publisher exercises the publishing right and retains legal title to and contracts for the recording, synchronization, and grand performing rights.159 There is some question as to whether the publisher ever acquires the small performing rights since, in most instances, these are usually vested in a performing rights organization by virtue of contracts with the author.160 An author or composer is commonly a member of ASCAP or BMI. Members of ASCAP execute an assignment vesting in ASCAP the right to license nondramatic public performances of the member's works, both in being and those to be created.161 BMI writers grant sole and exclusive public performance rights to the organization, both for existing works and those to be composed during the contract period.162 The composer may also be a member of Songwriters Protective. Association, in which case he assigns to SPA the mechanical rights in all compositions, actual and potential.163 SPA members also sign standard contracts with publishers subject to the provisions of the basic contracts between SPA and the particular publisher, and subject to the existing agreements with the performing rights societies. 164 If the periodical analogy is applied here, some of the same problems are raised. Indivisibility would seem to require that the composer grant all his rights to the publisher without reservations in order to permit the publisher to secure the statutory copyright. But if the composer has already agreed to grant the small performing right in future compositions to ASCAP or BMI he cannot transfer this right to the publisher. The performing rights are a major source of income in the music industry, and one might imagine that this point would have caused the sort of concern it has in the periodical field. That it has not may be due to the fact that relationships in the music industry are closely regulated by industry contracts. E. DRAMATIC WORKS The economic battle between the dramatists and the producers which provoked the Schubert attack on attempts to write divisibility into the law has now been resolved by the use of standard agreements.185 The author retains title to subsidiary rights, including motion picture and television uses, but the contracts usually spell out in detail the division of royalties between the producer and dramatist.166 For example, the producer may receive 40 percent of income from uses. other than first run production,167 and the contract may also spell out 158 The right to use snatches from one composition, all of another and a combination of other compositions by the same author in a motion picture. In re Hart, 83 N. Y. Supp. 2d 635 (Surr. Ct. N.Y. County 1948). 159 See note 156 supra; Timberg, The Antitrust Aspects of Merchandising Modern Music, 19 LAW & CONTEMP. PROB. 294, 296 (1954). 160 Cf. Broadcast Music, Inc. v. Taylor, 55 N.Y.S. 2d 94, 103 (Sup. Ct. 1945). 161 ROTHENBERG, COPYRIGHT AND PUBLIC PERFORMANCE OF MUSIC 30 (1954); WARNER, RADIO AND TELEVISION RIGHTS 420 (1953). 162 ROTHENBERG, supra note 161, at 161. The procedures of SESAC do not parallel those of ASCAP and BMI. Cf. WARNER, RADIO AND TELEVISION RIGHTS 324 (1953). 163 Klein, Protective Societies for Authors and Creators, in 1953 COPYRIGHT PROBLEMS ANALYZED 19, 35 (1953). 164 Id. at 80. 165 Id. at 59. 166 Ibid. 167 Burton, Business Practices in the Copyright Field, in SEVEN COPYRIGHT PROBLEMS ANALYZED 87, 109 (1952). the exact time periods which must elapse before the play is used in motion pictures or television. There is a sharp contrast here with the situation in music where the composer does not retain legal title to the copyright; many dramatists insist that, "nothing must be allowed to interfere with the writer's sole control of his own copyright." 168 V. ISSUES A. NECESSITY FOR LEGISLATION Despite continuing dissatisfaction, there has been no recent drive for divisibility legislation, nor any new development which would appear to make immediate consideration, apart from general revision, urgent. Industrial practice has gone far in surmounting the difficulties. Insofar as everyday arrangements are concerned, the problems center around the right to sue, the question of joinder of parties, and the special situation in periodicals. The periodical problem stems primarily from the requirement of a copyright notice naming the proprietor. The periodical problem might be alleviated by standardization of industry practice and the use of contracts acceptable to both publishers and authors. It would be difficult to achieve a common pattern here since there is no common authoritative voice in this area to speak for authors as there is in the book field; on the other hand, it should be possible to educate authors to protect themselves by contract. addition, this periodical problem might be largely disposed of by a legislative resolution of the related problem of the copyright notice in periodicals. Aside from the periodical field, the achievement of relative industrial balance elsewhere raises the question of how necessary legislation really is. In practice, an exclusive license has operated with substantially the same effect as an assignment of the particular right, except that the exclusive licensee is not able to sue in his own right. Most commentators have not been satisfied with the present situation, but have found it desirable to modify or abolish the concept of indivisibility, and expressly make the copyright divisible.169 There is some question as to how necessary it is to go this far or whether provisions on suit by an exclusive licensee and joinder might not be sufficient. Various alternatives are available dependent on the system of copyright; some believe that adoption of a system of copyright without formalities would eliminate any need for a theory of indivisibility.170 If the present system of formalities is maintained or modified, it is generally felt that specific provisions for divisibility would appear to be advisable. 171 B. COPYRIGHT WITHOUT FORMALITIES Henn has said that, if a copyright system of no formalities were adopted, "retention of the indivisible copyright theory would appear 188 Variety, May 1957, p. 71, col. 5. 199 See notes 104-110 supra. See also Hearings Before the House Committee on Patents on General Revision, 72d Cong., 1st Sess. 5, 21 (1932); SPRING, RISKS & RIGHTS 176 (2d ed. 1956); Stern, Reflections on Copyright Law, 21 N.Y.U.L.Q. REV. 506, 511, 513 (1946); Note, Revision of the Copyright Law, 51 HARV. L. REV. 906, 921 (1938). 170 Henn, Divisibility of Copyright, Outline of Address at Copyright Symposium, A.B.A. 6 (Aug. 20, 1955); Finkelstein, The Copyright Law-A Reappraisal, 194 U. PA. L. REV. 1025, 1061 (1956). 171 Henn, supra note 170, at 7. See also note 169 supra. APPENDIX 1909-40: LEGISLATIVE BATTLE FOR DIVISIBILITY Early attempts to revise the 1909 statute were concentrated on adherence to the Berne Convention and sought to amend the law only to the extent felt absolutely necessary to permit adherence to the Convention. A Later bills included complete revisions of the statute both because it was felt that fundamental changes were required to bring us into the Convention and to cure defects in the existing law. The more elaborate bills all included sections on divisibility. On March 24, 1924, Representative Dallinger introduced H.R. 8177.42 This bill provided for copyright in the complete work and each copyrightable part, and the right to assign or license the entire copyright or any right and limit it for a certain time or territory. The assignee or licensee became the owner of the particular right or rights as though they were several and distinct, and could record the transfer in the Copyright Office. A A revised version of this bill was introduced on May 9, 1924, A6 and divisibility was considered at hearings beginning on May 15, 1924.A7 The motion-picture attorneys who had drafted the measure As wanted a bill which gave the author a "solid right to transfer," A9 and laid special emphasis upon the necessity of recording all transfers. A10 In 1925, the Perkins bill, H.R. 11258, drafted by the Register of Copyrights and sponsored by the Authors' League, was introduced. All The bill permitted the written assignment or license of any of the separate rights listed in the bill, for limited times or specified territories. A12 Both assignments and licenses could be recorded in the Copyright Office and assignees could sue, but not before their assignments were recorded. A13 There were special provisions for periodicals: under section 13, the periodical publisher secured only a license to print and publish, in the absence of an agreement to the contrary. A14 A periodical could sue for infringement under its general copyright, but it had no such power when it held only a license under section 13.A15 At hearings on the bill, the Register, supported strongly by the author groups, pointed to the need for a division of rights and clear title. A16 The motion-picture producers and periodical publishers opposed the bill, preferring the earlier Dallinger bill; All the periodical publishers objected to the special provisions covering periodicals. In the next Congress, the Perkins bill was reintroduced, A18 and a new bill, A19 omitting the features objected to in H.R. 11258 by the periodical publishers, was submitted by Representative Vestal. There was no real disagreement on the necessity of "making the copyright divisible" but the motion-picture producers and the periodical publishers supported the new Vestal bill and opposed passage of the Perkins bill.Â20 Al Goldman, A History of U.S.A. Copyright Law Revision 1901–1954, at p. 4 (Study No. 1 in the present series of committee prints.) A3 68th Cong., 1st Sess. Aз Id. § 7. AA Id. §§ 45, 46. As Id. §§ 46, 47. A H.R. 9137, 68th Cong., 1st Sess. A Hearings Before the House Committee on Patents, 68th Cong., 1st Sess. (1924); AS Id. at 337. A12 Id. § 15. A13 Id. § 17, 34. A14 Id. §§ 6, 22. A15 Id. § 36. Als Hearings Before the House Committee on Patents, 68th Cong., 2d Sess. at 84 (1925). A1 Id. at 428; Hearings Before the House Committee on Patents on H.R. 10434, 69th Cong., 1st Sess. 117 (1926). Al HR 5841, 69th Cong., 1st Sess. (1925); Cf. §§ 15, 17, 18, 34, 35, 36. AI H.R 10434, 69th Cong., 1st Sess. (1926); Cf. §§ 9, 11, 21, 23. A Hearings Before the House Committee on Patents on H.R. 10434, 69th Cong., 1st Sess. at 117, 120, 248 (1929). The Vestal bill formed the basis of some later bills on the subject of divisibility. It specifically provided for the written assignment or license of the entire copyright or "any rights comprised therein," for a limited time or specified territory.A It also enabled any person securing such a right or interest to protect and enforce such rights as he held, in his own name. A22 It stated that all the rights comprised in a copyright are "several, distinct, and severable," and that the assignee or licensee of any of these rights was to be treated "for all purposes, including the right to sue," as the owner of such rights. A23 Licenses and assignments could be recorded in the Copyright Office; failure to file did not affect the validity of the instrument, but no unrecorded instrument was to be valid against any previously recorded document of a transfer for value without notice. A24 An exception to this last rule requiring recordation was made in the case of instruments by which magazine or newspaper publication rights were assigned or conveyed. A25 The The desire for "divisibility" was great, and a separate bill was introduced in 1927 to provide that "all rights comprised in a copyright are several, distinct, and severable." A26 In essence, this bill tried to secure "divisibility" by amending three sections of the existing law on assignment, recordation and, damages. provisions were borrowed from the original Vestal bill and later amended to include more detailed language for the joinder of other parties. Hearings were held; A27 almost everyone spoke for "divisibility" but disagreed on the details. A:8 The authors wished to secure the original copyright in a magazine contribution; the periodical publishers stated that they had no objection to divisibility, as alleged during discussion on the Vestal bill, and favored it-provided there were appropriate safeguards. A29 The bill was reported out with a favorable recommendation and placed on the House Calendar, but no further action was taken at that session; it was introduced in the next Congress. A30 In its report, the House committee found that, as new inventions had put new methods at the service of the author for the exploitation and production of his work, the author had been handicapped by the fact that, although he could license separate uses of his work, he could not "sell" such separate rights. A31 Some users wanted more than "merely a license or exclusive license to use. Such licensee cannot bring suit to protect the rights ***"' A32 The committee found that the bill achieved this purpose, enabled the licensee to sue to protect his right, and safeguarded the rights of all owners by providing for notice to other owners. A33 The committee felt it preferable to provide for notification and permission to appear rather than giving the court power to compel attendance of any party who might seem to have an interest. A34 Further hearings were now held, at which the representative of the Authors' League called the bill "the most important piece of copyright legislation that has ever been reported out of a committee since the Copyright Act of 1891.” A35 With the addition of provision for interpleader, the motion-picture interests and the book publishers supported the bill. A36 The periodical publishers agreed that the principle of the bill was sound, but indicated that they were perfectly happy under the existing law, and that "under the proposed act we should not have quite that assurance that we have now." A37 The periodical publishers approved the bill but asked for "a little clearer delimitation of the rights of the various assignees," A38 i.e., that the bill specifically provide that other assignees could not exercise any right until after serial publication had been completed. The Shubert interests opposed the "divisible portion" of the bill because of the fear that it would strengthen the hand of the dramatist and enable the dramatist to sell competing motion-picture rights while the play was still running.A39 At the time, the Basic A21 H.R. 10434, 69th Cong., 1st Sess., §9 (1926). A22 Id. § 9. A23 Id. § 3. A24 Id. § 11. A25 Ibid. A28 H.R. 16808, 69th Cong., 2d Sess. (1929). A27 Hearings Before the House Committee on Patents on H.R. 16808, 69th Cong., 2d Sess. (1927). A29 Id. at 28. A35 Hearings Before the House Committee on Patents on H.R. 8915, 70th Cong., 1st Sess. (1928). A36 Id. at 53, 82. A37 Id. at 44. A38 Id. at 47. A39 Id. at 57. |