reasons specifically identified in the com- The [songwriter's heirs] also ignore express statements in the legislative history indicating that the termination provisions represent an accommodation of the various interests involved. These statements show that while the provisions are intended to benefit authors and their families by giving them an opportunity to share in the benefits of the extended term, other interests were also recognized. The statements form a consistent theme throughout the history. 543 F. Supp. at 857-58 (footnotes omitted). See also id. at 85863. I respectfully suggest that every single argument that has been made in this hearing about legislative intent was addressed by Judge Weinfeld in his exhaustive review of the legislative history.* Two of the witnesses who appeared at the hearing, Barbara Ringer and Irwin Karp, drew on their own involvement in the pre-legislative history of the 1976 Act -- that is, the preliminary drafting efforts that preceded introduction of a bill in Congress to support their positions on Congressional intent. They state that music publishers were not to benefit from the - * It has been noted that 7 of the 13 judges who considered the Mills Music case ruled against Mills. Such judicial nosecounting is of little value. The law of the land is as the Supreme Court majority finds it. On the subject of Congressional intent, the District Court opinion is, by far, the most exhaustive analysis. The Court of Appeals opinion, in sharp contrast, makes little reference to what was actually said by or to members of Congress. exception. Since the hearing, however, another participant in that process, Richard Colby, has submitted a statement which reaches the opposite conclusion. It would serve little purpose at this stage to survey those who worked with, or within, the Copyright Office as a proposed bill was prepared for submission to Congress. To the extent the intent of Congress prior to enactment of the 1976 Act is viewed as significant in the consideration of the present bill, the legislative history should control, rather than the varied personal recollections of what occurred two decades ago. See also 543 F. Supp. at 863-67 (finding no meaningful support in the pre-legislative history for the songwriter's heirs' position). This subject of Congressional intent should not be concluded without reference to the language of the derivative works exception. The Supreme Court majority, as well as the District Court, attempted to read and construe the words of the exception as written, without torturing them. 105 S. Ct. at 646-47; 543 F. Supp. 853-55. The Court of Appeals and the Supreme Court dissenting opinions embraced policy arguments, with far less consideration of the actual words enacted. In the end, perhaps the clearest indication of Congressional intent comes not from the legislative history but from the legislative directive statute itself. And the plain words of the statute enacted in in sharp contrast to the language now offered to amend 1976 the law - support the continued sharing of royalties. - the The Reach of Mills Music Some of the witnesses who testified in favor of the bill argued that, unless Mills Music is overturned, the termination right will have been rendered ineffective. The argument fails to measure the true reach of either Mills Music or of the derivative works exception. The 1976 Act gives an author and his heirs a valuable right upon termination: to regain control over the copyright for all future exploitation. But this reversionary right, by its specific terms, is made subject to an important limitation - the derivative works exception. With respect to pre-termination derivative works made by another, an author's compensation is not to be enhanced upon exercise of the termination right; the status quo is preserved, even if it reflects an improvident grant by the author. Thus, it is undisputed that if an author conveyed to a motion picture producer the screen rights in a novel for a onetime lump sum payment, the author and his heirs will receive nothing more upon termination no matter how successful or - This long-lived the motion picture that was made from the novel. is how the exception was intended to work. See 543 F. Supp. at 861-62. It is important to emphasize that Mills Music does not bear on the primary right encompassed by termination: the recapture of a copyright for purposes of future exploitations. The author who long ago conveyed motion picture rights in his novel for a lump sum will still regain the sequel or remake rights, even though he can never renegotiate his deal with respect to a pre-termination motion picture made from his novel. A songwriter who all along has received 50 percent of the royalties generated on sound recordings licensed by a music publisher will, after termination, have complete control over new sound recordings. Additionally, the songwriter gains control over new print uses of the song. Thus, it is inaccurate to suggest that, unless Mills Music is reversed, the termination right is of no value. The legislative history and the language of the exception show that the derivative works exception was a limitation on the right of termination, and that the benefits to an author upon termination come from new uses of his work, not from pre-termination the derivative works exception Snyder or his heirs would not have the right to renegotiate the terms of the deal with Mills Music. By the same token, where the initial grantee has sublicensed the right to make a derivative work, the author has no right to increased income from utilization of the pre-termination 105 derivative work beyond the terms of his grant under which that derivative work was made. There is no basis in the legislative history to suggest that Congress intended any other result. S. Ct. at 645, 649-50. On the contrary, the standard practice of the music industry illustrated by Mills Music - - does not present the type of "unremunerative" transfer the termination right was intended to remedy. See Brief for Petitioner at 44 45. At all times, both before and after termination, the author (or his heirs) receives 50% of the royalties derived from the utilization of sound recordings licensed by the music publisher.* Perhaps recognizing that the 50-50 arrangement of the music industry does not provide a compelling case for remedial legislation, several of the witnesses who testified in favor of the bill referred to the effect of Mills Music outside of the music industry. It was suggested certain authors would other situations be severely prejudiced. But these suggestions reflect overstatements. - - in Again, to the extent an author makes a grant to the utilizer of a derivative work (such as the motion picture producer), the termination right does not undo the author's grant. Mills Music has no bearing on that situation; the proposed bill would not help the author. Mills Music only applies when an author conveys a copyright or rights thereof to a grantee who in turn sublicenses the right to create and utilize a derivative work. Such licensing occurs routinely in the music industry, where routinely the author's share of the royalties is 50%. specific examples have been, as yet, offered which reveal an author being disadvantaged by an unremunerative grant in a situa No Some suggestion has been made that 50-50 was not the standard practice. The arrangement in Mills Music, portrayed in the stipulated facts as standard, provided for the even division of royalties between the publisher and each of the three songwriters. 543 F. Supp. at 847. This standard practice has also been presented to Congress in the past. See Brief for Petitioner at 30-31. In his statement, George David Weiss states that the gross tion that is covered by Mills Music and would be covered by the bill. To legislate in order to remedy unspecified evils outside the music industry seems hardly warranted, especially where the bill could create new uncertainties. As construed by Mills 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 - If the status quo is to be undone, the be affected by the bill. 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 |