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Editorial matter and trade matter are not generally written with the idea of copyright or protection under copyright.
The same is true of some features of fashion publications and agricultural publications.
In order to be specific, I will take the different items under the bill as we found them. We found several publishers who seriously objected to the very first provision of the bill, which is the instantaneous copyright without any formality whatever. Their objection to that, first, is based upon the fear that it will result in a tremendous amount of misunderstanding and litigation, not only between the publishers and authors, but between authors themselves, which will be necessarily very embarrassing and possibly disastrous to the publishers of periodicals. That section, I understand, is placed in that way in order to meet the requirements of the International Copyright Union. There are some of our publishers who feel that there is considerable advantage to American authors that they ought to have, by entrance into that union; but there are others that feel that there will be more difficulty connected with that feature, which of course would extend to authors and artists of foreign countries the same privileges; that there would be more disadvantages than there would be benefits.
Mr. Bloom. Suppose that would prevent us from entering into the Berne convention? Do you think there is more to be gained by allowing that provision of the law to remain as it is and go into the Berne convention, or by eliminating that and not going into the Berne convention?
Mr. Lucas. From the standpoint of our association there would be advantages to some of our publishers, but to others there would be extreme disadvantages, and I want to point out in that connection the design copyright bill that is still being considered by your committee. I do not want to talk at length on the design bill, but I want to show its connection, and how it would affect the fashion publications. And that, again, brings up the point just brought out by Mr. Newman in regard to colorable imitation.
At the hearings on the design bill we admitted, and rightly, that the fashions of the world, especially in women's dresses, originate in Paris; that is, it has been recognized as the place where those styles originate. Now, we do not claim that those styles are new. There occasionally are new features, but generally those styles are either a resurrection of something that existed years ago, or there is a deviation of some of the modes that may have existed during the last few years. There may occasionally be some real new ideas, but the world has recognized, and the American women especially have recognized, the fact that they want their styles from Paris. The result is that the American manufacturers of clothing, the American publishers of fashion publications, the American manufacturers of paper patterns for the making of dresses, send their designers to Paris to see what these new designs are.
Now, we stated at the hearings on the design bill that we did not make exact copies, but this is absolutely necessary, that in making an American adaptation—and that is what we claim we do—we must embody the principal characteristics of that trend of styles that is carried in those French exhibits.
Under the International Copyright Union, as I understand it, any artist in Paris could immediately make a picture or a drawing of those designs that are created for a given season. It might not be a designer that orignated them; it might be some one on the outside that would make the picture. He would immediately have copyright in those pictures. That copyright would extend to the United States.
No publisher of a fashion periodical could then reproduce his American adaptations of those styles without possibly infringing that copyright that has been given to the Frenchman who has secured the first copyright.
There might be a question whether an adaption would be an infringement, but under sections 4 and 5, on page 5, you specifically provide for protection of the original copyright and any adaptation or compilation.
Mr. BLOOM. That would not apply. In the first place, the man that makes the photograph of the original design, he is not the designer. He has no right to that.
Mr. Lucas. I am talking about the copyright that exists in the picture; not necessarily a photograph, but a design. I am not talking now about the design copyright, I am talking about the protection under the law
Mr. BLOOM. Yes.
Mr. Lucas. Which gives a protection on the picture, whether he created it or not, as long as he produced the picture. This gives protection to the man that produced the picture.
Mr. WEIL. He is reading from the wrong section, but he is right on his principle.
Mr. Lucas. Under section 1 you give that right to the man that produced the picture, but what I am referring to now on the adaptation, which is under section 4, which undoubtedly was compiled to take care of adaptations perhaps of literary works or of musical compositions. There you still retain to the original copyrighter the right that was his, although you give the copyright to the man that has produced something more-something different.
Mr. BLOOM. Where is that? I am trying to get it. Mr. Lucas. Beginning on line 10. [Reading:] Copyright secured by this act shall extend to any work subject thereto, to the extent to which it is original, notwithstanding it is based in part upon, or incorporates in whole or in part some previously existing work.
Mr. WEIL. It would give a copyright in his reproduction.
Mr. LUCAS. A man produces a picture of a dress that some designer has created as a new design. That man has a copyright in the picture.
Some American designer produces a design that is modeled after the French design, and then produces a picture of his American design which must embody some of the copyrightable features. He has a copyright in the picture. To that extent the man of the original copyright must be protected.
Mr. BLOOM. Well, supposing the man who was the owner of the design copyright, who designed the gown itself, did not take a picture, and a stranger came in, an outsider, and he took a picture of that design copyright dress; do you mean to say his picture, his
photograph, of another man's creation, would hold against anyone else?
Mr. Lucas. The man who created the design has no protection under this copyright law; neither would he have in there. But the man who makes a picture has a protection under our copyright law for the picture; not for the design.
Mr. BLOOM. Oh, no.
Mr. McLeod. There are two different identities, the picture and the design.
Mr. Bloom. I do not agree with the gentleman.
Mr. McLeod. I think there is a different protection on the picture from that on the copyright.
Mr. Bloom. I do not get it that way. If a stranger comes in and takes a photograph of another man's creation, you say that the man who takes the photograph has the right
Mr. McLeod. To the picture, he says.
Mr. Lucas. He has the right to a copyright on the picture. That is all I am referring to.
Now, how would that affect the periodical publisher? In order to acquaint the women of the United States with what are the prevailing fashions we must give them pictures of them, and that is done in these fashion publications.
Most of those fashion publishers also make paper patterns for dressmaking, and the patterns that they are showing as pictures are pictures of their patterns they are trying to sell. But under this law, as I read it-admit that I am not a lawyer; I am a laymanthat copyright may actually exist in the name of the Frenchman who made the first drawing of it, whether he was the designer or not of the dress; and to that extent we would be violating his rights and would be subject to suits for infringement.
Then there is the question, again, as to what would be the outcome of such suits; whether anybody could prove that design itself was original. As we claim, practically all of these designs are really remakes of some design or some fashion that has existed before.
Mr. Bloom. How would you amend this section, then, so as to give you that protection!
Mr. Lucas. I did not go into that feature. My idea was this: That that was one of our principal objections of going into the International Copyright Union; that would extend that protection to some one in France.
Mr. Bloom. But you can not do that if you want to eliminate the first part of this bili.
Mr. Lucas. That is what I am talking about. I am talking about our objection to the first part of the bill. That is the principal thing that our fashion periodical publishers are concerned with—as to what would be the effect on the entire fashion industry.
Mr. Bloom. You would secure a greater protection by going into the International Copyright Union?
Mr. LUCAS. I do not think so. I think this would be very detrimental.
Mr. Bloom. You are talking now for the ones that would not get any benefit, and in a couple of minutes you will be talking for the others
Mr. Lucas. No; I said there were some of our publishers that felt there might be some benefit, but I mentioned, to begin with, that these different publications would be affected in different ways.
Mr. BLOOM. Could not that be left over until next Friday, when we will have the design copyright bill up?
Mr. Lucas. It could be, except that this refers only to pictures and not design. I mentioned the design law only to show the dif, ference between the two. This would need to furnish the protection, whether we had a change in our design copyright law here or not.
Mr. Bloom. You have your attorney or representative draft some amendment.
Mr. Lucas. We could do that. Mr. BLOOM. I think that would be a good way to do. Mr. LUCAS. But there is the main question, if section 1 is to gain admission into the International Copyright Union, whether this section would prevent that.
Mr. BLOOM. It certainly will.
Mr. Lucas. Then our objections for the fashion publications are that we do not feel that it would be advisable to change it for what they represent; and not only what they represent directly but what they represent as to the service they are rendering to the homes of the country.
Mr. Bloom. Mr. Chairman, I would suggest that Mr. Lucas offer the amendment, and this idea, whether it will affect this bill with reference to entering into the International Copyright Union.
The CHAIRMAN. I understand Mr. Lucas is pointing out objections and suggesting how he thinks that this bill as drawn would affect these different people; but yet he has no amendment at this time that he desires to offer. He is simply showing that this bill, if passed in its present form, might affect them injuriously.
Mr. LUCAS. That is my point.
The CHAIRMAN. If your people have any amendment that they desire to offer, that might remove their objections, the committee would be mighty glad to have those suggestions. Mr.
Bloom. That is the best way to do it. Mr. Lucas. I will suggest that to our people and have something prepared along that line.
Mr. BLOOM. That is the best way.
Mr. Lucas. The bill that is before you is copied, to some extent, after the original copyright law as it stands to-day; but it seems to us that its principal protection, especially in the literary field, is along the line of the protection of book rights. That is, I want to draw this distinction, that in a book there is generally only one copyrightable feature. Under the present scope of this law, in a periodical publication, you could have as many as 500 separate copyrightable items in one publication. Now, the provisions of the law, especially the penalties, are drawn along the line of protection of that one copyrightable feature in a book; but still they have to be applicable, the way the bill is worded they would have to be applicable, to each of the component features of a periodical that migħt have several hundred such features, and to that extent they are not reasonable. I will point that out in detail as I come to those other sections.
On page 6, section 7, beginning on line 21, we have a provision in connection with Government publications, and you protect the owner of a copyright when the Government might reprint, with permission of the owner, any of his copyrighted material. That is perfectly proper, and it might be that without saying so, when such reprints are made without the permission of the copyright owner, which is done, similar protection would be given; but in the case of agricultural publications especially we have been quoting from Government reports to a very large extent, and in doing that they take them literally, assuming that they have a right to use them. Now, the publication using something there, with permission or without permission, with no notice on there that it is not Government property—an agricultural paper, for instance--might be violating the law, might be infringing by using that material; and to my mind it is very important that some notation of some kind be made on any material of that kind to indicate whether it can be used. That, of course, again emphasizes the importance of indicating whether copyright material can be used without any notation made on the reproduced copies. It seems to us that, in connection even with section 1, what the authors and artists are trying to get here is full protection of their rights, and we agree they should have them. They want to have a clear title to those rights. They want to be able to transfer any divisible portion of those rights by a clear title, which is perfectly proper. But under this provision of section 1 they are unwill. ing to register those rights, or to have registered, even, the transfer of the divisible portions. In other words, they want the same protection that is given by law to real estate and are unwilling to go through the same formality that is necessary under our laws to protect real estate.
Section 8, page 7, seems to cover a new provision over the present law in that it is extending copyright to architectural works and designs. I do not understand why there should be any special separation of this design material from other design material as considered in your design copyright law. We have some architectural publications that might have the same difficulty in connection with reproduction, not for sale, of the designs themselves, but illustration of designs somewhat similar to the situation of fashion publications in connection with the fashion designs.
In section 10, on page 8, line 18, they refer to copyright that existed prior to the effective date of this new bill, and require that the writen agreement covering the transfer of any of those rights to any publisher must be filed with the register. Now, there are many of those rights that were bought by the publishers, some of them even orally, some of them in written contract, and others by merely indorsement on vouchers that paid for them. It would be almost impossible to file those assignments in compliance with this law, and there is a question in my mind again there as to why there should be any necessity for such a filing if the original copyrights are not to be required to be filed, nor any of the assignments under the new law. On page 10, line 8, appears the word "magazine.” Now, trade
“ publications are not generally known as magazines, and could hardly qualify under that word. Therefore we suggest the substitution of the word "periodical,” which would cover the entire field.