chestrate any music other than his own music, he has to belong to the musicians union.

Mr. KASTENMEIER. Mr. Zissu, while your discussion here has been in terms of authors, you talk really about composers and lyricists who are engaged in contracting with movies or television films. Does this work-for-hire question pertain to writers and authors of literary works such as magazine writers and others? Does the same question obtain there?

Mr. ZISSU. I have thought about that. Our memorandum, as you have noted, is broadly drawn. We talk about authors and employed authors. We draw in the category by definition those special situations which have the same consequences as the for-hire consequences by definition in the bill. We see no distinction there. I suppose if a group thought there were distinguishing features warranting different treatment they would come forward with it. We know that the Writers Guild is associating themselves with our position and their witnesses will follow. And they represent thousands of people who write stories for magazines, I think, magazine writers who write for films and for radio and the like. I don't assume that even the magazine situation would want the for-hire consequences for their people to be any different than what we want for our people. We know the situation for composing, as I say.

Mr. KASTENMEIER. Thank you.

Mr. Edwards?

Mr. Poff?

Mr. POFF. I believe I have no further questions. I want to say this testimony has been helpful to me.

Mr. DOLAN. Thank you, sir.

(Mr. Zissu's prepared statement and a supplemental memorandum submitted by him subsequently are as follows:)

COMMENTS OF THE COMPOSERS & LYRICISTS GUILD OF AMERICA, INC., ON THE "WORKS MADE FOR HIRE" PROVISIONS OF H.R. 4347

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) (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, 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.

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 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 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 preexisting 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."

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 right" doctrine as it has developed decisionally in the patent law, where the employee-inventor is the initial owner of the statutory right. The employer would acquire in any event the right to use the work as needed for the purpose of his regular business or for the purpose for which it was commissioned, with the creator retaining the remainder of the bundle of rights provided for in the statute, although he would not be permitted to authorize competing uses. Such treatment would be a fair consensual implication from the relationship. There is no particular warrant for the employer of an author to receive an even more favorable legal position than the employer of an inventor, since in the patent field the employer not only provides the employee with compensation but with the laboratory and other facilities as well. The parties could, of course, provide otherwise in their contract, as they can under the present statute or could under the presently pro posed 201(b). The statutory artifice becomes totally unnecessary because the employer can fully protect himself by obtaining an assignment from the creatoremployee. The difference in result is that the bargaining burden; i.e., the necessity to alter the natural relationship, would be upon the employer, the party who normally is favored with the otherwise superior bargaining position and has more ready access to legal advice. The relatively inferior position of the author has been recognized by Congress in the past. The renewal provisions of the 1909 act manifest congressional concern over the improvident business dealings of authors-a concern reflected as to "nonhire" works in the reversion sections of the Register's bill but ignored in the area where protective features are most needed; namely, in situations where the author is an employee or obliged to recognize a hiring relationship.

Such authors "for hire," even when banded together in guilds, must still look to a progressive copyright statute for their rights protection. Their guilds are not in the ordinary case likely to possess sufficient economic strength to fashion a satisfactory collective bargaining agreement with the employers on matters of copyright. They are unlike other union employees whose stoppage of services can bring an employer's business to a swift halt. The employee authors can only hope doubtfully that the employer-normally well stocked in a backlog

1 The word "employment" and its derivatives shall be used throughout this memorandum to include, unless the context indicates otherwise, those special order or commission situations referred to in the sec. 101 definition, p. 4. lines 26-30.

2 United States v. Dubilier Condenser Corp. (289 U.S. 178, 77 L. Ed. 1114 (1933)); Cahill v. Regan (4 App. Div. 2d 328, 165 N.Y.S. 2d 125 (2d Dept. 1957)).

of recorded and other materials of authorship-will ultimately respond as he gradually feels the effect of a cutoff in the flow of freshly created material. An exception is made in the provision suggested herewith for supplementary authorship material and derivative works based upon works copyrighted by the employer. Thus, unless the contract provides otherwise, the entire copyright in the new and closely related works would belong by statute to the employer, in effect, as an assignee. In addition, sections 203 and 304(c), providing for termination, would not be applicable to such works. This exception, too, we submit, is a fair consensual implication from the relationship of the parties as to this particular material.

Since a work can be used and exploited in numerous ways in addition to that for which it was created (frequently including uses unforeseeable at the time of creation), it would seem equitable that the actual author be assured of sharing in the benefits of such further utilization. The creator, by his very nature, has a continuing incentive for the exploitation of his work. He would not be content to have it lie dormant, on the shelf, so to speak. The author for hire should not be beset with obstacles in retaining rights not needed or reserved by an employer, and he too should have the right of termination after 35 years. Otherwise when the employer is no longer interested or active or has gone out of business, valuable works will realistically be lost to the author and the public.

As the law now stands and as H.R. 4347 proposes, it is the employer who, although bargaining and calculating his compensation to the author on the basis of his specific and immediate need for the service, is nevertheless the one-sided beneficiary of the unforeseen business opportunity provided by supplementary or novel exploitation. There seems no justification for this rule other than that attempted in the argument that the author has been paid for the work he did and is entitled to nothing more. Yet, it is equally true that the employer has received all he bargained for when he receives, for example, the song or the music he requested for the project at hand. Clearly the equitable balance here favors the author, especially when it is considered that the basic constitutional purpose of the copyright law is the advancement of art through protection of its creator.

"The Congress shall have Power *** to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (U.S. Constitution, art. I, sec. 8.)

There does indeed exist a genuine question as to the constitutionality of a statutory provision which specifically provides that parties other than the creator be considered for purposes of copyright as the "author" of a work of art, thus granting such parties the exclusive right which the Constitution empowers Congress to secure to authors. Such constitutional doubt should not be minimized here since the authorship status for the purpose of rights ownership would be conferred upon one not the true author, to the exclusion and detriment of the true author. There can be little doubt that the word "author" historically has meant the true or actual author in the ordinary sense of the word. This is in fact the view of the cases nearest in time to the adoption of the Constitution. They reject a concept of vicarious authorship.* Certainly the framers of the Constitution did not envisage today's giant entertainment corporations as "authors." Thus the Register's proposed bill needlessly and unfairly impairs the composer's constitutional status in its gratuitous maintenance of the employer as author anomaly."

It is significant to note that, contrary to an impression that prevails in many quarters, the congressional committees responsible for the work made for hire

3 An apt illustration is the case of the composer Gail Kubik and his "Symphony Concertante." This work, which was entirely based upon Kubik's film score for the 1949 motion picture entitled "C Man." received in 1952 the first Pulitzer Prize award in music given after a lapse of some years. Kubik had been able to reserve rights other than the motion picture rights. By 1951 the producer, Laurel Films. Inc., had become inactive and was later dissolved.

4 DeWitt v. Brooks (7 Fed. Cas, 575, No. 3851): Atwill v. Ferrett (2 Fed. Cas. 195. No. 640 (C.C.S.D.N.Y. 1846)); Boucicault v. Fox et al. (3 Fed. Cas. 977, No. 1691 (C.C.S.D. N.Y. 1862)).

See also: Roberts v. Meyers (20 Fed. Cas. 898, No. 11,906 (C.C.D. Mass. 1860)). 5 Cf. Nimmer on Copyrights, sec. 6.3 (1964).

provisions of the 1909 act did not have in mind a broad copyright disqualification of the employed author applicable to unlimited classes of works. According to the most extensive Ringer studies," the focus of the committees was upon staffwritten material for composite or cyclopedic works prepared by a number of salaried employees for purposes of publication by an employer-publisher. Referring to the final committee report concerning renewals, "In the case of composite or cyclopedic works to which a great many authors contribute for hire ** *” [H. Rept. No. 2222, S. Rept. No. 1108, 60th Cong. 2d sess. 15, 1909] Miss Ringer states: "It seems that the committee's major concern in this situation--if not its only concern was with cases where a number of authors contributed to a single work. It is almost as if the committees were unaware that the provisions concerning ** * works made for hire had been added to the bills they were reporting" (p. 131).

"When the drafter of the final Smoot-Currier bill in 1909 prepared the renewal section, he imported intact the language giving a special term to works copyrighted by employers for hire into the provision giving proprietors renewal in their own right. The committee reports on this final bill indicate a likelihood that the legislators regarded a 'work made for hire' as a species of 'composite or cyclopedic work,' and did not realize the breadth of the exception they were creating" (pp. 138-139).

7

Not only, therefore, does the legislative history of the emergence of the forhire provisions into the 1909 act fail to support the sweeping divestment of rights in all employed authors, as now sought, but the courts themselves interpreting these provisions have regularly declared that an employment relationship per se is not the sole detriment of rights vesting in the employer, but that the contract intention itself must be sought.

Although the proposed bill on the whole succeeds in its intention of improving upon the present state of copyright law, it does, with respect to its works made for-hire provision, effect a retrogression. The bill disregards an important distinction in including within its disqualification of copyright ownership any work by an author-employee "within the scope of his employment" even if the work created were not the specific product required by his employment duties. In this respect the current proposal rejects the uniform court interpretations of the 1909 act which hold, absent express contractual provision otherwise in favor of the employer, that the employee is entitled to copyright unless his created work was the very thing he was required to accomplish under his employment."

Should it be deemed necessary that the employer have initial copyright in a work because of its composition for his specific need, it is nevertheless unnecessary and unfair to obtain this result through the broad, single category treatment of section 201(b) in the proposed bill. As previously suggested, it is perfectly feasible to treat the employer as initial owner in certain situations and the author-employee as initial owner in other instances.

Thus if a work has independence and unity and is exploitable apart from the larger work of which it was originally a component, or in other media—such as the film score-the employee should have reserved rights as well as the reversion privilege accorded to nonhire authors, in order that there be no wasteful neglect of opportunities for further exploitation as a consequence of the lack of interest, foresight, capability or legal existence of the employer, particularly a producer.

In conclusion, since as demonstrated above, the employer's investment or expense can be safeguarded without recourse to the logic-straining and constitutionally questionable artifice of authorship, it is respectfully submitted that the aforestated provision be inserted in H.R. 4347 in the place of the present section 201(b), and that the other references therein to "works made for hire" be deleted, thus avoiding constitutional problems, equitably recognizing respective, competing interests and reclaiming for the employee who creates a work his rightful status as author of that work, with all the benefits and rights which appropriately flow therefrom.

• Ringer, "Copyright Law Revision," Study No. 31 (Copyright Office, 1960).

It is, of course, strange that a copyright statute should contain the for-hire provision while the patent statute does not-particularly in view of their constitutional parity. Perhaps the Ringer suggestion of a drafting oversight as an explanation for these provisions in the 1909 act is the answer.

See 12 Copyright Law Symposium, 96-101 (Col. Univ. Press, 1963).

See note 8, supra.

SUPPLEMENTAL MEMORANDUM OF THE COMPOSERS & LYRICISTS GUILD OF AMERICA, INC., ON THE "WORKS MADE FOR HIRE" PROVISIONS OF H.R. 4347

This supplemental memorandum is submitted by the Composers & Lyricists Guild of America, Inc., in order to clarify the position of the guild on certain questions raised in the memorandum and statements submitted in behalf of the Motion Picture Association of America, Inc.

It must first be stated again that the purpose of any copyright statute, by constitutional direction, is the promotion of the "Progress of Science and Useful Arts." This is to be done "by securing for limited times to authors *** the exclusive right to their *** writings ***." This constitutional provision, we submit, is a fundamental directive against any copyright legislation which would deprive any creator of his authorship in his works-as is the purport of the "works made for-hire" limitations of H.R. 4347. The primary purpose of these limitations is the protection not of the author but of the employer-exploiter. As the statistics of the motion picture memorandum show, that industry is indeed huge. In stressing the size of dollar investment and earnings abroad the memorandum ignores the fact that authorship too demands an investment by the creator-years of training and development. Such investment is indeed immeasurable in dollar value, no less in cultural and other values for America abroad. Nor could earnings here or abroad be had by these or any companies without the indispensable authorship embodied in their products. In any event, neither financial size nor earnings abroad can serve to justify the deprivation of copyright in any class of authors.

Corporate bigness here emphatically points up the enormous disparity in the bargaining position between an individual author and one of the constituent film companies. The fact that employed composers have virtually never been able to reserve for themselves the copyright in their film scores is evidence of this fact. The trend toward corporate diversification and bigness can hardly be said to be on the wane. The increasing corporate employment of lawyers, doctors, engineers, and other professionals augurs the continued enlargement of the employee author class.

If authors increasingly turn toward employment, it will ordinarily be a matter of necessity rather than preference. The employer who will commonly pay far more for a restricted right to use a work when acquired from an independent author, should not be permitted to swallow up the authorship status or entirety of rights when the work results from employment. In either situation where exploitable rights or even the copyrights are retained by the author through the bargaining process, there is no effect upon the producers' invariable copyright ownership of the motion picture. That copyright ownership is not disturbed by the reservation of rights or even copyrights in underlying components within the film (such is indeed the common practice in the motion picture industry where the film use of songs and stories is frequently by virtue of a license from an outside copyright owner). In both cases the reversion privilege when exercised by the author as to his particular component would still permit the producer to continue the indefinite use of his derivative product embodying the use of such component.

The motion picture memorandum appears to confuse the suggested application of a concept akin to the patent shop right. Our proposal in this connection does not limit and was not designed to limit the quantum of exploitable rights to be acquired or retained by the parties through the bargaining process. It was offered and in favor of the employer-to meet the situation where there are no written contractual guidelines as to the exploitable rights intended to be assigned to the employer. In this contingency the employer is in any event assured of the right to use the work as needed for the purpose of his regular business or for the purpose for which it was commissioned. Surely this is an adequate solution where the employer is satisfied to dispense with the written contract.

The composer's situation, for example, is in some respects different from that of the workers and inventors to whom the shop right doctrine is ordinarily applied in that he does not use his employer's laboratory, material, equipment, or prior discoveries; nor has he been trained by the employer or served a period of apprenticeship with him. It is rather the case that when a composer is engaged to do a film score he is an accomplished composer in one field or another and deserves by all standards to be deemed the author of the work he composed, with all the benefits that flow therefrom. Neither the film producer's investment nor