royalties when the contract expires, then there is no equal bargaining position whatsoever for the songwriter. Senator SPECTER. All right. Thank you all very much. Does anybody else have anything they would like to say before we conclude? Mr. KARP. I would just like to add one point. I turn back to book publishing, because we should not lose sight of the fact that this issue is not limited to music and composers, nor is the performance of one publisher who may be exemplary Senator SPECTER. You want to turn back to book publishers. Senator Goldwater may have a question for you, Mr. Karp, for the record. Mr. KARP. I would be glad to answer it, as long as it is on book publishing and not the defense budget. The point I was going to make is this: As Mr. Weiss said, and he was absolutely right, there is no equality of bargaining, and as a result, authors grant rights in perpetuity to publishers-such as the right to license paperback editions of the author's book. The author gives that for the life of the copyright. When the publisher has the right, with its superior bargaining power, it never grants such a license to a paperback book publisher; it only grants a license for 5 or 7 years. The reason is very simple. Harper & Row has a lot more power, Random House has a lot more power, than almost any author that deals with them. They can get much more from the author than they are willing to give to some other user. And this is true all across-the-board, and this is what termination clauses were attempting to remedy. Mr. OBERMAN. Senator, may I add one comment? STATEMENT OF MICHAEL S. OBERMAN Mr. OBERMAN. In the course of his statement, Mr. Weiss indicated that the realities of the music industry were not put before the courts in the course of the litigation. That was because the courts were not called upon to make a policy judgment. That had been the task of Congress. The courts were called upon, and did attempt, to determine what had been congressional intent. Our briefs in the Mills Music case set forth at length an explanation of what that intent was. We have submitted a set of the briefs. And I do submit that each time one comes back to Judge Weinfeld's opinion in the district court, it becomes clear that he attempted, and I think successfully so, to show what had been intended by Congress-a balancing and accommodation of interests as between creators, publishers, and other users. Senator SPECTER. Mr. Oberman, you are representing that the Supreme Court did not consider the underlying merits of the situation, but only congressional intent? Mr. OBERMAN. Essentially so. The case was decided on summary judgment. There was no factual record developed as to what the various roles were in the industry. Instead, the parties marshaled from the very lengthy legislative history what had been presented As promised, I am enclosing two copies of respondents' petition for rehearing. This was submitted following the decision in Mills Music. I am forwarding it to complete the collection of briefs in the case. No reply to this petition was submitted. (We have not forwarded respondents' opposition to the petition for certiorari, or our reply brief in support of that petition; these were superceded by the briefs. However, if these documents are desired, I would be happy to furnish them). With respect to the Senator's introduction of me, the following modification of the language at page 19, lines 11-14 would be accurate: "Mr. Kay is going to be accompanied by Michael Oberman, from the firm of Kramer, Levin, Nessen, Kamin & Frankel in New York, which successfully presented the Mills Music case." As I mentioned to you, it is likely that we will file a supplementary statement or two; if we do so, you will have it within the next two weeks. MSO: pk Sincerely, Michael S. Oberman MARIE SNYDER and TED SNYDER, JR., Respondents. ON WRIT OF CERTIORARI TO THE UNITed States RESPONDENTS' PETITION FOR REHEARING HAROLD R. TYLER, JR. PATTERSON, BELKNAP, WEBB & TYLER 30 Rockefeller Plaza New York, New York 10112 Attorneys for Respondents FREDERICK T. DAVIS ROBERT P. LOBUE FREDERICK F. GREENMAN, JR. LINDEN AND DEUTSCH Of Counsel TABLE OF CONTENTS PETITION PROPOSED AFFIDAVIT TABLE OF AUTHORITIES Cases: April Productions, Inc. v. G. Schirmer, Inc., 308 N.Y. 366, 126 N.E. 2d 283 (1955) Statutes: 17 U.S.C. §115(c) 17 U.S.C. §304 (c) (6) (A) 1909 Copyright Act §1(e) Legislative Material: Ringer, "Renewal of Copyright," 86th Cong., 2d Sess., PAGE 1 7 5 4 1 5 |