education, you'd think he'd find something more permanent to do than raking leaves." Some think he should even see a doctor.

There is hardly a young composer who hasn't heard this over and over again. If the usual fates befall him so that he falls in love during this period and wants to marry, then they do send for the doctor, for this is sheer catastrophe, and if he does marry, he might as well forget music. We have lost a good many composers that way. Of course, I myself was married at such a stage in my life, but that was during the depression and everybody was in trouble then.

If the young composer, however, sticks it out and writes his music, he faces a new problem, for his music must go through three stages before it is complete: it must be written-played-and heard. With the writing done, he must now find someone to play it, and this could consume the best years of his life. But, let us assume that it does get played and heard and, for the sake of argument, that it is well received. How does all this affect his financial position? Well, the chances are that he is now in debt. He probably paid to have the orchestra parts of his music copied, and he surely had to buy tickets for all those relatives who thought he should have been committed. He also had to rent a dinner jacket, so that he might take a bow after the performance.

In this regard, Henry Cowell, the eminent American composer, told me that at a premiere performance of a symphony of his, the conductor, at the conclusion of the piece, motioned to him to take a bow-which he did. After he sat down, a strange lady asked him why he had stood up and bowed. He explained that he was the composer of the symphony she had just heard. She was astonished, and said, "Why, I thought all composers were dead." Well, most of them are. The so-called live composers are prematurely gray-as I am-trying to figure out how to make ends meet.

In a recent issue of the New York Herald Tribune the music critic. wrote and I quote:

From a financial standpoint, a composer's life is not a happy one. The number of composers earning a satisfactory living from serious composition is incredibly small ***. It's expensive to be a composer. It isn't until a com

position really begins to make the rounds that a composer can hope to get back some of his investment. Small wonder, then, that the phenomenon of the fulltime composer has all but disappeared from the land.

And, should anyone think that this is not representative of today's conditions, let me point out that these words were published just 3 weeks ago.

Time Magazine published a story a while ago about a young American composer-pianist who had written a piano concerto. When it was given its first performance by a leading symphony orchestra, he played the solo piano part. As a performer, he was paid $750 for playing the piece, but as a composer, his royalty came to $40.

Let us say, however, that the young composer I referred to earlier was financially more fortunate and that, after his one-night triumph. with his relatives and friends, he was asked to write the score for a film. Because he is a fledgling composer he will be paid no more than a modest fee.

He accepts that situation, believing that if his music is successful in areas other than the film for which it was written, he will receive

additional income. But, when he reads his contract, he finds that he is an employee for hire, and when he consults a lawyer to find out what that means, he learns that after he has written the music the employer will become the author and composer thereof and will also be the copyright owner. Writing or composing has rightly been called the loneliest profession in the world because it must be done by the creative artist alone, and there are no facilities or laboratories that the employer can place at the composer's disposal that will help him write the music. He must do it all by himself. Whereas the composer, however, actually writes the music, the law says that he didn'tthat his employer did. If the employer feels no pangs of conscience in such a situation, the composer does, because by his very acquiescence-his submission-his silence he is aiding and abetting the foisting of a fallacy. Furthermore, he comes to realize that though the employer plans to share some of the music's income with him, the activity of that music-beyond its use to publicize the film-is minimal. The film producer, who is now the legal owner of the music and guides its destiny, has no particular enthusiasm in exploiting the music for whatever additional values it might have. The producer is in the film business, and the composer's music is an adjunct to that business-no more, no less.

A case in point is that of the composer, David Raksin, who is also president of the Composers & Lyricists Guild of America. By the way, he is in Europe and he regrets he could not be here at this time. He wrote an excellent score for a dramatic film and, after the film was released, hundreds of letters poured in asking where copies of one of the melodies in the score could be obtained. Gratified by this public reaction, he took the melody to Johnny Mercer, the well-known songwriter, so that a lyric might be written. The result of this collaboration was the song, "Laura," one of the most beautiful and successful songs ever written. But it was public demand alone, not exploitation activity, that led to its publication. To force the composer to rely upon pressure from the public to reveal the beauty of a melody in a dramatic score is to provide him with a frail basis indeed for a livelihood.

It seems significant to me that the employment-for-hire situation is almost exclusively a facet of the film industry, whether theatrical or television films. I say this as a composer. I am speaking of fields in which composers work. Book publishers, legitimate stage show producers, magazine editors, and others, are satisfied as a rule_to acquire only those rights necessary to carry on their business. But the film industry insists on acquiring all rights, including rights for which they have no earthly use and which they may, in fact, never use. This situation usually prevails when a writer or composer makes his first deal for an artistic work with a film producer. If his film deal is not his first transaction for the work in question, the film producer, being powerless to acquire rights already committed to others, is content to obtain only those rights he needs for the film production. It is noteworthy that many such restricted deals have been made. As an example, I could cite Irving Berlin's musical film "White Christmas." Here I am in a position to give at least one producer's viewpoint, since I was the producer of that film. Without acquiring all rights, without becoming the author, composer, and copyright

owner thereof, but simply by securing those rights necessary to produce and release the film, "White Christmas" proved to be the highest grossing musical film in the company's history, and one of the entire industry's highest grossing musical films of all time. Giving up employment-for-hire provisions was no sacrifice at all, nor did it cause, to my knowledge, any legal problems anywhere in the world.

This clearly demonstrates that the film industry does not truly need all rights, nor does it need to become author, composer, and copyright owner in order to function in business. Under present employment-for-hire provisions, the employer acquires not only the rights he needs to stay in business, but all other rights, including unforeseen rights at the time of contract signing. Since the composer's creative years are normally limited, this has the effect of denying him a stake in his own future. It is precisely these unforeseen rights, as possibly the committee has already sensed in these hearings, that should be safeguarded now. That is why I believe that the employment-for-hire concept is an outmoded habit, an unrealistic tradition, totally unnecessary to the producer and grossly unjust to the composer.

Though I am also currently active in the field of education, I join my composer-colleagues in strong opposition to the extension of the proposed exemptions in the bill for any organization, nonprofit, educational or otherwise, to perform or reproduce copyrighted works without the payment of royalties. It has been argued that, when an artist produces something of lasting value, he has an obligation to make it available to such institutions free of charge, so that its cultural benefits can be passed on. This places a penalty on accomplishment. If you turn out junk, you may collect all the traffic will allow, but if you create something worthwhile, you must give it away. This is all the composer needs now: to be charged-over and above his normal obligations-with the responsibility of underwriting part of the Nation's education costs, and also to be robbed of any incentive to aspire to artistic achievement. The unanswered question in all such proposals is, what do they expect the composer to live on? I know of no supermarket, department store, or landlord who would be willing to supply food, clothing, or shelter without charge to a composer, simply because he is contributing to the Nation's culture. We have to pay our bills like anyone else in this country-with coin of the realm.

It would seem that the very least the composer is entitled to is legal recognition that he does, in truth, write the music he writes. Also, he should be allowed to seek whatever income that music can bring him, from whatever avenues are available, so long as they do not create direct competition for the employer. Most of our laws evidence a healthy respect for the investment of a dollar. Why not give similar protection to the investment of a man's brain which is, after all, his most unique possession?

Again, let me say that I am honored to have been given the privilege to address this distinguished committee and that my gratitude is wholeheartedly shared by the Composers & Lyricists Guild of America. Mr. KASTENMEIER. Thank you, Mr. Dolan.

Mr. Zissu, did you want to give your statement now or did you want to summarize it?

STATEMENT OF LEONARD ZISSU, ON BEHALF OF THE COMPOSERS & LYRICISTS GUILD OF AMERICA

Mr. Zissu. I will try to be reasonably brief. Since this is the first time during these hearings that the "employment for hire" question is being touched on I may ask the indulgence of the committee to expand my remarks, having in mind Mr. Poff's suggestion about the emulation of my distinguished predecessor in front of me, Mrs. Pilpel.

Mr. KASTENMEIER. Are you going to elaborate on the reference to employment for hire by relating it specifically to language in the bill? Mr. ZISSU. Yes; we have a proposed new section. My memorandum, which I will follow, develops the legal aspects.

Mr. KASTEN MEIER. Proceed, sir.

Mr. ZISSU. I, of course, share the admiration and the gratitude, as expressed by others here, with reference to the monumental, the herculean, effort of the Register of Copyrights. Our admiration is unbounded for what we think is a job, an enormous accomplishment, well done.

The Composers & Lyricists Guild of America, Inc., submits to the subcommittee that the intended primary beneficiary of the copyright under the Constitution-the true author of the work-would be subjected to needless and unfair discrimination by the "works made for hire" provisions of H.R. 4347 and offers the following objections and suggestions concerning those provisions (secs. 201(b), 101, 203 (a), 302 (b) and (c), 304 (c), and 408 (4)).

The Composers & Lyricists Guild of America, Inc. (CLGA) is a labor union or guild representing approximately 400 composers and lyricists creating music for the motion picture and television industries in the United States. The guild is currently engaged in negotiations with the Association of Motion Picture & Television Producers for an extension of a 1961 collective bargaining agreement. The association is an organization representing the major producers, other than networks, in both the television and motion picture industries.

Because most of the music composed for the motion picture and television industries is prepared at the direction of the producers, the works-made-for-hire provisions of the bill are of vital concern to the guild membership. As the bill is presently drawn, the employer for hire as well as a party who specially orders or commissions a work for motion picture and certain other uses under a writing which says that the work shall be considered as one made for hire, as if it were an ordinary employment-for-hire relationship that party is considered and treated as the author of the work and owns all rights under copyright excepting what the author has been able to expressly reserve. Moreover, there is no termination right through which rights could ever revert to the actual author during the fixed copyright term of years specially applicable to such works, which for works for hire is somewhat different than other works where you have the life plus 50. In the case of works for hire you have 75 years from publication or a hundred years from creation whichever expires first.

Revision of the Copyright Act of 1909 affords an opportunity to dispose of the anomalous doctrine under which the employer has been deemed the author of the work created. It is the position of the guild that the employer for whom a work is composed can by no fair or

logical or ethical standard be considered an "author." To perpetuate or extend this inequitable fiction in the new statute would immure the composer and lyricist in his present professionally and financially disadvantageous position while affording the employer far more "protection" than is reasonably necessary. The guild respectfully requests consideration of the following provision to replace 201 (b) and its related for-hire provisions, which, it is submitted, will realistically determine the relationship of the employer and the creator, adequately protecting the former and recognizing the contribution of the latter:

(b) Works resulting from employment or special order or commission. In the case of a work prepared by an employee within the scope of his employment or a work specially ordered or commissioned, the employer or other person for whom the work was prepared, unless the parties have expressly agreed otherwise, shall have in respect of the work resulting from employment, only the right to use the work in the regular business of the employer and in respect of the ordered or commissioned work only the right to use the work for the specific purpose for which it was prepared, but in either case the employee or other person preparing such work may not make or authorize any competitive use, provided, however, that where such work is a supplementary work or is a derivative work based upon a pre-existing copyrighted work of the employer or other person for whom the work was prepared, the latter, unless the parties have expressly agreed otherwise, shall be deemed the owners of all rights therein and the provisions of sections 203 and 304 (c) shall not apply.

Those are the termination privilege sections.

Now, in essence this says where the employer does not spell it out at all he can't get less than the equivalent of the patent shop right as a matter of law. If he spells it out specifically he can get whatever rights beneficially the parties specifically contract for. He won't get more than the shop right or that which he specifically wrote into the contract against the author employee. The author employee, like in the patent situation, cannot authorize or make competing uses.

We go further. Where the material involved is the supplementary authorship material, preface, illustrations and the like, the employer gets all rights without limitation in perpetuity. There is no problem of a termination provision as exists in the works of authorship. The same situation, the same unlimited, unqualified, perpetual right of ownership of material, exists in the case where the employee writes a work that is based upon a pre-existing copyrighted work owned by the employer. We feel in those two categories the employee's contribution is relatively slight as against the genuine authorship situation—a new and original and independent work-so that the employer can get all these additional benefits and rights. We think this will meet the publishing situation and will give us protection in the producer situation.

Mr. KASTEN MEIER. Permit me to interrupt at this point. In this description, how would you place the relationship of a byline reporter with a newspaper? He writes a column-of course, his byline appears-in a sense he is writing for hire.

Mr. ZISSU. I think in a case like that if there were no written relationship whatsoever between the parties, and this would be most unusual if there were none, under your shop right doctrine the newspaper would get the full body of rights useful and necessary in the business.

Under this proposal the work created by an employee in the course of his employment or a work specifically ordered or commissioned would be treated in a manner somewhat similar to that under the "shop

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