date on which the adherence of the United States to said Convention for the protection of literary and artistic works becomes effective; and the author or other owner of such copyright or persons claiming under him shall not be entitled to any remedy against any person who has, prior to such date, taken any action in connection with the exploitation, production, reproduction, circulation, or performance (in a manner which at the time was not unlawful) of any such work whereby he has incurred expenditure or liability; nor shall rights in respect of the further use of copies or other forms of reproduction be in any manner impaired.

That was fine when we were talking about adhering to the Berlin Convention. As a matter of fact, representatives of the motion-picture industry, some years ago, when it was possible to adhere to the Berlin Convention, advocated the United States adhering to the Berlin Convention because we could adhere to that convention with reservations which would protect our rights. But when the time passed for our adhering to the Berlin Convention, then the only convention to which we could announce our adherence was the Rome Convention, and the Rome Convention requires that any country adhering to it should do so without any reservations whatsoever; that is, they had to take it in its entirety, or not at all. So that these reservations which we have put into this bill before the committee, which seek to safeguard the rights of American users of previously uncopyrighted foreign works, become meaningless; because, if we adhere to the Union, then under its terms and under our Constitution that treaty becomes the supreme law of our land and anything inconsistent between the Bern Convention and our act, that is, if there is any inconsistency, the later expression of the lawmakers would govern and, in that case, it would be the Bern Convention. So that we would be in the Rome Convention without the reservations and protection which the Duffy bill seeks to throw around us. Coming now, specifically, to the bill: On page 2, line 21Mr. DALY. You are referring to which bill?

Mr. BRYLAWSKI. To the Duffy bill. I understand that is the only bill before this committee.

Mr. DALY. There are three bills before the committee.

Mr. BRYLAWSKI. The Sirovich bill, the Daly bill, and the Duffy bill, but I understood we were having this hearing particularly on the Duffy bill.

Mr. KRAMER. No; the hearings are on all three bills.

Mr. BRYLAWSKI. I am talking about the Duffy bill only.

On page 2, line 21 or, rather, lines 19 to 21, is the expression:

If it be a dramatic or dramatico-musical work or a motion picture and not reproduced in copies for sale.

It was the intention of the framers of this bill, I am sure, to eliminate that expression "reproduced in copies for sale." What they intended was to distinguish between published and unpublished works, and wherever the words "reproduced in copies for sale" occur in the present act and that act is repeated in this bill, that term has been changed to the word "published"; but I imagine, through an inadvertence, it has been kept in here. Because in motion pictures they are never reproduced in copies for sale, although they are "published" within the meaning of the law and the intention of the parties.

On page 4, there is a paragraph for design copyright. I may say that the motion-picture industry is not interested in the subject of

design copyright. Whether design copyright is a good thing or is not a good thing is a matter in which we have no immediate concern; but we do not think that section which was put in when the bill was before the Senate has anything to do with the present act and, if this committee wants to legislate on design copyright, they should do so by an entirely separate measure, and not by tying it in with the present bill for a revision of our copyright laws.

I call the attention of the committee to what appears to be several inconsistencies on page 11, lines 14 and 20, and page 18. On page 11, lines 14 to 20, it is provided:

With the exception of actions or proceedings for infringement of works entitled to copyright without formality, no action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this act with respect to the deposit of copies and registration of such work shall have been complied with.

That was for the purpose of giving remedies to foreigners in the event we entered the union, who could proceed to maintain their actions without any formalities. But on page 18 in section (b)— it is not page 18. I do not find it right at the moment, but there is a further section in here which repeats the necessity for registration before there can have been any action commenced for infringement of copyright, which does not provide any exception as to works entitled to copyright in the United States without any formalities. And the two sections are entirely inconsistent one with the other and it is believed that the latter section would control in the event the matter came before the courts.

If the committee please, there is one thing I want to say calling their attention on page 22 to paragraph 2. At the time this section was being considered by the interdepartmental committee, it provided:

* that the reception of any copyrighted work by the use of radio-receiving set, wired radio, or other receiving, reproducing, or distributing apparatus, or the performance, other than by broadcasting, of any copyrighted works by a coin-operated machine, or machine mechanically or electrically operated, or by means of a disk record, perforated roll, or film, manufactured by or with the consent of the copyright owner, or anyone claiming under him, except where admission fees, other than for the ordinary occupation by a guest of a hotel or lodging house room, are charged to the place of operation or, in the case of restaurants, cover charges distinct from the charges for food, or other minimum charges are made.

I appeared before that committee and pointed out that under the section as it was drawn it would permit anybody other than a place where an admission was charged, or where a restaurant had a cover charge, publicly to perform any motion-picture film, because a motion-picture film was included in the wording performed "by a machine mechanically or electrically operated or by means of a disk, record, perforated roll, or film." So the committee inserted, by way of amendment, the words "auditory reception", so as to exclude visual reception of a motion picture, which I frankly thought met the objection. But perhaps a week or more ago I took occasion to discuss for a few minutes the question of copyright in a sound track on motion-picture films. I do not know whether any members of the committee have listened to the Hollywood Hotel program, which is regularly broadcast, in which Miss Luella Parsons introduces to the radio audience some prominent screen star and then has the screen

star reenact some scene from some particular motion picture. That is what the radio audience believes happens, but what actually happens is that they take the film in which the star appeared and run it off and put the sound track up against the microphone and give the radio audience the dialogue of music, sound, and so forth, which is contained on that film. Of course, that is done at the present time under a license, and she is authorized to do that; but under this provision, as it now stands, she could do that without any license; because by the language in this section as it is drawn the only thing which is prohibited is the visual representation and without the auditory reception by any radio receiving set, wired radio, or even broadcasting; because it says by "reproducing, or distributing apparatus", which would include the broadcasting, "of any copyrighted work by a coin-operated machine or machine mechanically or electrically operated or by means of a disk, record, perforated roll, or film" is specifically made not the subject of copyright by this act. And, of course, we are opposed to this section as it stands.

I want to discuss now for a minute, if the committee please, the assignment provisions of the act. The Duffy bill retains the provisions of paragraphs 43 and 44 of the present Copyright Act, which are highly objectionable in many features. Section 43 of our present act provides that

Every assignment of copyright executed in a foreign country shall be acknowledged by the assignor before a consular officer or secretary of legation of the United States authorized by law to administer oaths, and a certificate of such acknowledgement under the hand and official seal of such consular officer or secretary of legation shall be prima-facie evidence of the execution of the instrument.

We see no purpose in requiring as a matter of law that an assignment of motion-picture rights or other rights executed by a man living abroad, whether he is an American citizen or a foreigner, should have to be acknowledged before an American consular officer. There is not even any requirement under our law for acknowledgment before a notary public. An assignment is merely a conveyance of rights in the copyright and the assignment is recorded in the Copyright Office and it gains no force or has no added benefit of law by virtue of the acknowledgment. The requirement, however, has often delayed and made it very difficult for foreign authors to execute transfers of their works, especially when there are three or four or sometimes half a dozen authors of a mechanical work all living in various parts of Europe and each of whom may be many miles away from an American consular officer, and he has to go in each case to the American consular officer and acknowledge his particular signature or act; and that has often greatly delayed the receipt of the documents back here. We think the law should say that it may be acknowledged before an American consular officer, without being absolutely required.

Section 44 contains this outmoded provision

That every assignment of copyright shall be recorded in the Copyright Office within 3 calendar months after its execution in the United States or within 6 calendar months after its execution without the limits of the United States, in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, whose assignment has been duly recorded.

If the committee please, that identical language was contained in the recording sections of the patent law as to the recording of patents, and it was early recognized it was very unfair to require any purchaser or mortgagee to have to wait for 6 months in suspense to find whether or not he had acquired a valid patent to a thing which he was attempting to purchase, and this committee amended the patent laws, and our present law contains no requirement or no limitation of time within which an assignment of interest in a patent has to be recorded. The act merely provides that assignments of patents shall be recorded in the Patent Office. And there is no provision of time for recording title deeds to real estate, as to when they shall be recorded. When you buy a piece of property, the law does not say you shall record within 3 months; it puts the onus upon you of recording promptly, and if you fail to record promptly and the seller sells again and the second purchaser, without notice of yours, comes in and records, his title is good as against you.

And that is true under the patent law at the present time. If I buy an interest in a patent or take an assignment of a patent and sleep on my rights and do not record my assignment and then the patentee decides to sell them again and the purchaser goes to the Patent Office and finds no assignment has been recorded and closes his contract, he has a good title. But in the copyright law you require us to sit on the anxious seat for 3 months if an assignment is executed within the United States, or to wait 6 months if the assignment is executed abroad, before we find out whether we have a title to our work. Now, there is no purpose in that, if the committee pleases. There is no more justification for being compelled to wait 3 months or 6 months before we know we have a good title, when we pay many thousands of dollars for motion-picture rights, than there is for being compelled to wait some amount of time when we buy title to a patent or take title to a piece of property. And if we are to retain those two sections in the bill which this committee will report out, we respectfully ask that the time element be taken out and the section be drawn merely to provide that those assignments shall be recorded, without any limitation of time in which the recordation shall take place.

On page 30, lines 13 and 15, is a matter in which we perhaps have no particular interest, except for our interest in a bit of unusual phraseology

Copyright in the photograph of a single individual shall not be had except with the written consent of the person photographed.

Of course the purpose of that undoubtedly was if you go to a photographer and sit for a picture, that photographer shall not have a right to take out a copyright on your picture. But suppose you take your family there and you sit in a group with your wife and several children, then that is not a single individual; that is a group of individuals and it would be very strange in that case, as the bill now reads, to say the photographer should have a right to copyright a group of yourself and wife and children; whereas if he only took a picture of you yourself, he would not have a right to copyright it. As I say, we have no interest in that and I just wanted to call the attention of the committee to a peculiar bit of phraseology.

Mr. DALY. As you were looking at me, I may say I cannot imagine a photographer in the world who would want to copyright my picture.

Mr. BRYLAWSKI. But if the chairman please, I had the pleasure of seeing the chairman's wife down at the station and her average is awfully good.

Mr. DALY. That is the only way I shine-by reflection.

Mr. BRYLAWSKI. There is just one further thing, if the committee please. On page 23, paragraph 4, lines 10 to 13, it is provided—

The merely incidental and not reasonably avoidable inclusion of a copyrighted work in a motion picture or broadcast depicting or relating current events

Shall not be infringed.

Which is a very salutory thing, because the committee heard the horrible case in England where they were taking a news reel of an English event and a band went by playing a piece of music, which was picked up in the recording apparatus and automatically transImitted to the film, and the Paramount Co. was sued for infringe-ment. I do not think we go far enough and I thing we ought also to have a provision excepting that not alone in the case of news reels or current events, but anything else; because a great many of our pictures are made outdoors and sometimes copyrighted matter may be picked up in that motion picture, not intentionally, and if it gets in there and we are making a photoplay, we would be liable; whereas, if we are making a motion picture depicting a current scene or event, we would not be liable.

There was a horrible case arose a few years ago in which one of the film companies rented a statue from the man who owned the statue, and the film company rented it to use in a set and the statue appeared in the picture maybe 8 or 10 times, that is, in 8 or 10 scenes, and perhaps in thousands of those little frames. That statue was copyrighted and the copyright owner threatened to file suit for infringement of his copyright. I think there was somethink like 8,000 or 10,000 frames, separate, little individual reproductions of that statue, and perhaps 200 prints, so that the remedy he was asking under the copyright law would be greater than for the President of the United States' death, and that was an unavoidable inclusion of a copyrighted work. And, of course, matter concerning which we have no knowledge should also be eliminated from the infringement of copyrighted material.

Mr. Hess suggests I am away over my time. I am about through, anyhow.

Mr. DALY (presiding). I am afraid you are a little over your time. If you care to file your remarks in the form of a brief or statement, the committee will be glad to have you do it.

Mr. BRYLAWSKI. Thank you.

Mr. DALY (presiding). Now, gentlemen, may I interrupt the procedure to state the committee has, at the instance of several of the members, invited Mr. Burkan, counsel for A. S. C. A. P., to return to our meeting in order that he might give a presentation of the legal aspects. A very illuminating presentation was made by Mr. Buck and Mr. Mills about other features of the act as it affected A. S. C. A. P., but there was no presentation on the legal phase and