ground that it was unconstitutional and that it would result in a multiplicity of claims.229

H.R. 10976 was reported on April 5, 1932,230 but no further action was taken on it. On May 7, 1932, Chairman Sirovich introduced H.R. 11948,231 a slightly revised version of the bill; the provision stating that copyright was to subsist in records as "new works" was qualified by the phrase "to the extent that they are original." 232 More hearings were held on May 12, 1932,233 at which Mr. Burkan elaborated his arguments against the provision.234 He contended that records were mechanical devices, and were not constitutionally copyrightable; that the provision was an illegal attempt to extend the life of expired patents, and that it "will result in a duplication of remedy, a multiplicity of suits, and possible bankruptcy of even an innocent infringer." 235

Another amended version of the Sirovich bill was introduced on May 16, 1932,236 and reported on May 18, 1932.237 Still another version was introduced on June 2, 1932.238 No further action on any of these measures is recorded.

E. DEVELOPMENTS, 1933-35

After the flurry of activity in 1932, efforts to revise the copyright law subsided for several years. A general revision bill introduced by Senator Dill in 1933 239 contained no provisions dealing specifically with copyright in sound recordings. The same was true of the wellknown Duffy bill,240 which was introduced on May 13, 1935, and which passed the Senate on July 31, 1935. This measure, however, contained an extremely broad definition of "writings," 241 which caused some to assume that it embraced sound recordings within its scope.2 At the 1936 hearings this was unequivocally denied by one of the drafters of the bill,243 among others.24

242

F. GENERAL REVISION, 1936-38: THE SIROVICH, DALY, AND GUFFEY BILLS

The Daly bill,245 which was introduced on January 27, 1936, contains the most comprehensive and detailed provisions governing copyright in recordings or recorded performances ever placed before Congress. Throughout the bill the terms "interpreter" and "performer" are linked with the word "author," and the terms "rendition," "performance, " and "interpretation" are assimilated to the word "work." The definition of copyrightable subject matter was broadened as follows:

229 Id. at 190.

230 H.R. REP. NO. 1008, 72d Cong., 1st Sess. (1932).

231 H.R. 11948, 72d Cong., 1st Sess. (1932).

232 Id. § 4.

233 Hearings Before the House Committee on Patents on H.R. 11948, 72d Cong., 1st Sess. (1932).

234 Id. at 126-127, 136.

235 Id. at 136.

236 H.R. 12094, 72d Cong., 1st Sess. (1932).

237 H.R. REP. NO. 1361, 72d Cong., 1st Sess. (1932).

238 H.R. 12425, 72d Cong., 1st Sess. (1932).

239 S. 342, 73d Cong., 1st Sess. (1933).

240 S. 3047, 74th Cong., 1st Sess. (1935).

241 Id. § 4. The provision read as follows:

That the works for which copyright may be secured under this act shall include all the writings of an author, whatever the mode or form of their expression.

242 See Hearings Before the House Committee on Patents on Revision of Copyright Laws, 74th Cong., 2d Sess. 112-115 (1936).

243 Id. at 334-335, 342.

244 Id. at 681, 685, 1344.

245 H.R. 10632, 74th Cong., 2d Sess. (1936).

That the works for which copyright may be secured under this Act shall include all the writings of an author, whatever the mode or form of their expression, and all renditions and interpretations of a performer and/or interpreter of any musical, literary, dramatic work, or other compositions, whatever the mode or form of such renditions, performances, or interpretations.246

This definition, which implied that the bill covered unrecorded performances, was narrowed somewhat by the statement appearing in the enumeration of copyrightable works:

(n) The interpretations, renditions, readings, and performances of any work, when mechanically reproduced by phonograph records, disks, sound-track tapes, or any and all other substances and means, containing thereon or conveying a reproduction of such interpretations, renditions, readings, and performances.247

The Daly bill defined the exclusive rights to be accorded to copyrighted performances as follows:

(h) To perform, or have performed for public performance and/or profit, any rendition or interpretation of a work by any mechanical means, same to include re-recording or recapturing of and by any mechanical production or rendition or interpretation by any process, means, or method. These rights are not intended to interfere or curtail the right of the authors of any composition or work used for such rendition or interpretation, and are created to be in addition to same, and to protect such persons who render or interpret them.248

The domestic manufacturing and affidavit requirements were extended to recorded performances,240 and the bill required that the copyright notice appear on the record label.250 Where a work was created within the scope of employment, the employer was deemed an "assignee" in the absence of an agreement to the contrary 251 The terms "interpreters" and "performers," and the rights accorded them, were further defined as follows:

Interpreters and performers under this Act shall include interpreters, performers, actors, lecturers, and conductors, and the rights afforded them for their renditions, interpretations, and performances shall not be construed to interfere with the rights accorded authors and composers, and said rights are free and independent of each other, and the establishing or maintenance of the rights of one shall not include those of the other class.252

On February 24, 1936, Representative Sirovich introduced a new general revision bill, H.R. 11420, 253 which contained some ambiguous provisions according a degree of protection to performances. Neither recordings nor performances were listed in the enumeration of copyrightable works,254 nor did they appear in the section dealing with "adaptations" and "arrangements." 255 On the other hand, in a section titled "works not copyrightable," the Sirovich bill seemed to extend copyright by negative implication to performances and recordings when written consent had been obtained from the owner of copyright in the work recorded:

In no event shall copyright under this Act extend to

(d) Renditions, interpretations, mechanical and electrical recordings and transcriptions, in respect of any work the author of which shall not have con

240 Id. § 3.

247 Id & 5. 248 Id. § 1.

249 Id. §§ 13, 14.

250 Id. § 15.

251 Id. § 29.

252 Id. § 32.

253 H.R. 11420, 74th Cong., 2d Sess. (1936). This is virtually identical with H.R. 11374, 74th Cong., 2d Sess. (1936), which Representative Sirovich had introduced three days earlier and which had been withdrawn, apparently because of typographical errors.

254 H.R. 11420, 74th Cong., 2d Sess. § 5 (1936).

255 Id. § 6.

sented in writing to the securing of copyright in such renditions, interpretations, recordings, and transcriptions by another; but the consent of the copyright owner to use his work for renditions, interpretations, mechanical and electrical transcriptions, or recordings and the securing of copyright therein by another shall not deprive, diminish, restrict, or in any wise prejudice any right or remedy secured to an author by this Act in any work used for such rendition, interpretation, electrical transcription, or recording.256

Likewise, the following paragraph was added to the list of exclusive rights protected by the bill:

(g) To perform publicly for profit the particular rendition or interpretation of a musical composition by the performer or interpreter thereof by any mechanical means, including recording or recapturing of it by any mechanical reproduction by any process, means, or method.257

The reference to "musical composition" in this section implies that protection extended solely to interpretations of musical works; but this, like many other things in the Sirovich bill, was far from clear.

These provisions of both the Daly and Sirovich bills attracted a good deal of attention, and were the subject of much comment during the extended hearings held in February, March, and April, 1936.25 The bills as drafted were generally criticized as much too vague and broad. Purely as a question of principle, however, the idea of protection for performers was urged by the National Association of Performing Artists,259 the American Federation of Musicians,259a and various individual performers and orchestra leaders.260 The record companies argued strongly in favor of a copyright to be vested in the manufacturer, rather than in the performer.261 Virtually all of the other groups opposed protection either for the performer or the manufacturer; 202 leading opponents were ASCAP,203 the broadcasting organizations, 264 the Music Publishers Association,265 the jukebox manufacturers,266 and the motion picture producers.267

The arguments of the performers centered around the unfair use of their recordings by radio,268 and the extraordinary problems of technological unemployment among instrumental musicians resulting from the new inventions.269 It appeared to be assumed generally that ordinary dubbing of sound recordings could be effectively prevented at common law on the theory of unfair competition,270 but, in addition to controlling broadcasting and public performance, the performers were concerned with preventing unusual types of dubbing-particularly the practice of re-recording commercial records for broadcasting purposes." The performers maintained that they were intellectual

262 An exception is found in a memorandum filed by Gabriel L. Hess and Edward A. Sargoy as counsel for the National Distributors of Motion Pictures, id. at 1344-1346. The memorandum criticizes the pending bills as too broad, but appears to favor extending copyright to a recorded rendition, if protection is limited to the sole right of public performance for profit.

263 Id. at 112-115, 651-653, 1083-1086, 1121-1122.

264 Id. at 400-401, 439-440, 486-489.

205 Id. at 560-562.

206 Id. at 800-802.

267 Id. at 1011, 1181-1182. See also Hearings Before Senate Committee on Foreign Relations on Executive E, 73d Cong., 2d Sess. 23-24 (1937).

268 Id. at 655-662.

249 Id. at 662-664, 668-672.

270 Id. at 113, 639, 653, 1181.

271 Id. at 655-656.

creators, and that only under the copyright law could they obtain effective protection.272

The recording companies did not dispute the performers' claims, but argued that, like motion pictures,273 a record is an artistic creation and that protection should vest in the record producer.275 They stressed that the interests of the performer could be better protected by contract.276 Their arguments emphasized the prejudicial effect of endless repetition of their records in radio broadcasting, and the fact that records had already been protected under the laws of many other countries.278

The opponents of the principle of copyright in sound recordings attacked the idea as rather fantastic, as unconstitutional, as dangerous, or as seriously prejudicial to their legitimate interests. They urged that something as nebulous as a performance could not conceivably be accorded legal protection,279 and that since performances are neither creative nor tangible, they could not be considered "writings." 280 They urged the danger of new "power trusts" 281 and of new licensing societies which could cut off the people's supply of music,282 and they stressed the practical difficulties in having to obtain licenses from more than one copyright holder.283 The author-publisher groups argued that the creation of new rights in recordings would represent an unwarranted abridgment of their rights.284

283

Neither the Sirovich nor the Daly bill was reported. In the next session of Congress, on March 3, 1937, Representative Daly introduced a modified version of his earlier bill. While this measure, H.R. 5275, contained a number of changes in language, its provisions with respect to copyright in recorded performances remained substantially the same. The subject matter to be protected was defined as follows:

(p) The rendition and/or performance of any work when reproduced by any means on phonograph records, disks, sound tracks, tapes, or on any and all other substances or by any other means whatsoever containing thereon or conveying a reproduction of such rendition and/or performance.286

The exclusive rights accorded to a recorded performance were not specified separately, but the following limitation was imposed:

The right granted to an author of a rendition when reproduced by any of the means described in subdivision (p) of section 5 of this Act shall not interfere with, curtail, limit, or infringe any of the rights of the author of any composition or work used or employed in said rendition when so reproduced, and such rights to authors of renditions are created to be in addition to the rights of the authors of a work or composition and are solely for the protection of said authors of renditions; the rights granted to the author of the rendition shall not carry with them any right to the use or reproduction of any composition or work employed in such rendition.

The manufacturing, 288 affidavit,289 and notice 200 requirements were retained, and the bill again provided that an employer for hire was to be considered the owner of the work."

291

The following provision, which was entirely new, was added to the bill:

The performer of a rendition of any composition or work in any form whatsoever shall be deemed an author and such rendition when reproduced by any means whatsoever shall be considered a writing; but shall not constitute a publication which shall divest any rights existing at common law and/or under the provisions of this Act.292

This provision has been criticized as a "clumsy attempt to extend * ** [common law] property rights indefinitely." 293

" 296

The revised Daly bill was introduced in the Senate as the Guffey bill 294 on April 22, 1937, but no further action was taken on either measure. Nevertheless, even though hearings were not held, the bills attracted a good deal of attention.295 The 1937 report of the Committee on Copyrights of the American Bar Association, Section of Patent, Trade-Mark, and Copyright Law took a stand opposing the bills, partly because of their "attempt to protect performing rights of an intangible nature.' In a "Special Addendum to the Report of the Committee on Copyright," 297 Edward A. Sargoy agreed that the Daly and Guffey bills were unacceptable because of their loose language. He suggested, however, that the principle of copyright in recorded renditions was worthy of further study, and that consideration should be given to "the possibility of granting limited copyright property rights to a fixed tangible recordation of a performance." 298 He advanced the idea of a copyright "limited solely to (1) the right to make and vend duplicate 'recordings' and (2) to mechanical use of the copyrighted 'recording' itself for the purpose solely of public communication for profit. In its 1938 report 300 the Committee indicated that it was split on this question, although "most of the members are of the opinion that such provisions are nebulous, speculative and impractical. " 301 Mr. Sargoy again filed a "special addendum" 302 in which he restated his views.

"" 299

23 Note, Revision of the Copyright Law, 51 HARV. L. REV. 906, 916 (1938).

294 S. 2240, 75th Cong., 1st Sess. (1937).

295 See 2 LADAS, INTERNATIONAL PROTECTION OF LITERARY AND ARTISTIC PROPERTY 870-873 (1938); Hess, Copyrightability for Acoustic Works in the United States, 4 GEISTIGES EIGENTUM 183, 198 (1939); Littauer, The Present Legal Status of Artists, Recorders and Broadcasters in America, 3 GEISTIGES EIGENTUM 217, 232 (1938); Diamond and Adler, Proposed Copyright Revision and Phonograph Records, 11 AIR L. REV. 29 (1940); Traicoff, Rights of the Performing Artist in his Interpretation and Performance, 11 AIR L. REV. 225 (1940); Note, The Guffey Bill for the Amendment of the American Copyright Act, 3 GEISTIGES EIGENTUM 166 (1938); Note, Revision of the Copyright Law, 51 HARV. L. REV. 906, 915-916 (1938).

29 American Bar Association, Section of Patent, Trade-Mark and Copyright Law, Committee Reports 12 (1937).

297 Id. at 14.

298 Id. at 18.

299 Ibid.

300 American Bar Association, Section of Patent, Trade-Mark and Copyright Law, Committee Reports (1938).

301 Id. at 77-78. See also id. at 80.

802 Id. at 80.