tion that is covered by Mills Music and would be covered by the bill. As construed by Mills To legislate in order to remedy unspecified evils outside the music industry seems hardly warranted, especially where the bill could create new uncertainties. Music, the 1976 Act preserves the status quo with respect to the utilization of pre-termination derivative works; grants made by authors and sublicenses made thereunder are unaffected by termination. On the other hand, the bill, if enacted, would supersede portions of contractual relationships, leading to perhaps illogical results. See 105 S. Ct. at 647.* Those urging the bill's passage should be expected to present a more detailed depiction of actual multiple grant arrangements outside the music industry that are implicated by Mills Music and that would and should, for policy reasons - be affected by the bill. If the status quo is to be undone, the consequences should be understood in advance. Proposed legisla tion that would transfer "all royalties" to an author could wreak havoc where multiple arrangements were made for allocations of royalties, particularly if the new law required a differentiation among the roles played by participants in the creation of a derivative work. The words "middleman" and "entrepreneur" have been projected in the Mills Music litigation and in this hearing in an effort to define who, from the author's point of view, should be excluded from a sharing in royalties. But if actual arrangements in the entertainment industry are examined, it is most likely that the proposal to depart from the status quo - in The decision of the Supreme Court was based, in part, upon the interrelationship between the contractual arrangements entered by Snyder with Mills and those of Mills with record companies (the latter being a so-called "Harry Fox license"). The Court found that continued payment of any royalties to Snyder's heirs depended on the continuation of both agreements. 105 S. Ct. at 647-48. Mr. Weiss contends that the Supreme Court misconstrued how the Harry Fox license should be read to conform to industry practices; he argues that, even if the Snyder-Mills grant is extinguished, the record companies' payments would flow to the Snyders. This precise argument now made by Mr. Weiss formed the sole basis of a petition for rehearing submitted to the Supreme Court; the petition was denied without dissent. order to deny royalties to "middlemen" and "entrepreneurs" - would raise a host of issues and potential litigations. See Brief for Petitioner at 31-32 (discussing implications of decision to motion picture and book publishing industries). Conclusion In sum, I respectfully submit that the legislative history, properly weighed and evaluated, does not reveal either a single-minded intention to favor authors to the detriment of all other participants in the creative process or to deny music publishers the benefit of the derivative works exception. For this reason, music publishers do not bear any burden of showing that the proposal to reverse Mills Music is unfair or unwise. Instead, the most appropriate question is whether, in light of the lengthy and deliberative process that led to that package of accommodations known as the Copyright Act of 1976, Congress should now rewrite one small portion of the law and disadvantage music publishers, in order to redress inequities that remain unproven and without consideration of the potential consequences outside the music industry that remain undefined. Respectfully yours, Michael S. Oberman Mr. DEUTSCH. Senator, I am not going to extend this hearing, other than to say we have covered this fully in our presentation to the committee. It is not the congressional intent, but facts of the music publishing industry, which the Supreme Court raised on its own, never covered in our briefs, but that is more fully covered in our submission to the committee. Thank you. Mr. WEISS. Finally, I would like to say that if we are talking about Judge Weinfeld, we must also recognize that 7 out of the 13 honorable judges were on our side. Senator SPECTER. Thank you all very much. [Whereupon, at 11:02 a.m., the subcommittee was adjourned.] APPENDIX ADDITIONAL SUBMISSIONS FOR THE RECORD RICHARD COLBY ATTORNEY 19653 Valdez Drive Tarzana, California 91356 (818) 996-7217 November 20, 1985 Senator Charles McC. Mathias, Jr. Committee on the Judiciary Dear Senator Mathias: I am honored to accept your invitation to submit this Written Statement of my views in connection with the Hearing to be held by the Subcommittee on November 20, 1985, on S. 1384 (99th Cong. 1st Sess.), the proposed Copyright Holder Protection Act introduced by Senator Arlen Specter on June 27, 1985. The Bill would prospectively reverse the rule in Mills Music, Inc. v. Snyder, et al., 105 S. Ct. 638, 224 USPQ 313, 53 U. S. Law Week 4035, by adding subdivision (7) at the end of Section 304 (c) (6) of Title 17 of the United States Code, the Copyright Act of 1976, P.L. 94-553, 90 Stat. 2541-2602, as amended. Section 304 (c) (6) (A) and new subdivision (7) would together read as follows: 304 (c) (6) (A). A derivative work prepared under the authority (7) Notwithstanding any other provision of law, where an author or his successor, as defined in subsection (c) (2), (153) |