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at the expense of authors and their families ...
benefits that are rightfully theirs. Ms. Ringer also submitted a Written Statement after that Hearing in which she writes that:
It is no secret that I was the author of the
As one of those who participated in those meetings and Hearings in which the termination provisions "had been hammered out following lengthy debates and discussions (at which) the compromises had been reached and the issues effectively settled," perhaps I can offer some light on the underlying legislative history and intent of Congress.
My views in this regard have previously been published in part in my article entitled Helen Sousa Abert, Mary Baker Eddy and Otto Harbach The Road to a Copyright Term of Life Plus Fifty Years, 6 cammnications and the Law 3 (No. 3, June 1984), also published in 10 New Matter 2 (Journal of the Intellectual Property Section of the State Bar of California, No. 1, Spring 1985). I attach a reprint of my article for inclusion in the Transcript of this Hearing, for the convenience of the Canmittee.
The heart of my understanding of the intent of the Congress is that the "status quo" should be maintained with respect to all contractual arrangements affecting the continued utilization of the applicable derivative work, be it a sound recording or a motion picture under the terms of the grant."
This analysis is ably set forth in the Briefs for Petitioner Mills Music to the Supreme Court: Main Brief at 47, Reply Brief at 3, 5, 7 (in footnote 4) and on page 10.
In my opinion, the 94th Congress which passed the 1976 Act had the same intent as the 87th Congress which adopted P.L. 87-668, the first Copyright Term Extension Act of 1962. This intention was expressed in the House and Senate Reports supporting P.L. 87-668, quoted at length in my Helen Sousa Abert article to the effect that:
Existing contractual arrangements will not be impaired by
The Report of the Senate Judiciary Committee, Sen. Rep. No. 87-1888 at 2. (1962) is to the same effect.
This intention as to the 1976 Act was noted in Justice Stevens' Opinion for the Court in Mills Music v. Snyder, at the text of his Opinion accompanying note 40:
The "terms of the grant" as existing at the time of termination
Thus, I conclude that the "original intention" of the 94th Congress
was the same as that of the 87th Congress, and, respectfully, that Barbara Ringer's understanding of the "compromises hanmered out following lengthy debates and discussions" is "one on which reasonable minds may well differ," to quote the Court of Appeals in this case, 720 F. 2d 733 at 735.
I will conclude this Statement with a brief comment on current practices, as I understand them, in the motion picture industry as to the continuing distribution of such derivative works, since the Bill, S. 1384, would affect all forms of derivative works, including motion pictures, and not only sound recordings which are the subject of Mills Music v. Snyder.
My general views, summarized below, on the continuing distribution of derivative works are to be set forth in my new article entitled: ROHAUER Revisited: "Rear Window," Copyright Reversions, Renewals, Terminations, Derivative Works and Fair Use, being published in the March 1986 issue of Pepperdine Law Review. When published, I will be pleased to send a reprint to you for the use of the Canmittee.
The 1963 Hearings of the Panel of Copyright Consultants to the Library of Congress reflect the industry practices being addressed by this legislation, including my testimony at the 1963 Hearings cited at footnote 73 of the opinion of the District Court in this case by Judge Edward Weinfeld, 543 F. Supp. 844 at 860, also quoted in Copyright Law Revision Part 3 at 278-81 (a 1964 Print of House Committee on the Judiciary); also see Colby, Same Essentials in Copyright Revision for Motion Pictures, an Address to the American Bar Association Section of Patent, Trademark and copyright Law, 1963 Section Proceedings 72, and 1l Bulletin of The Copyright Society of the U.S.A. 19 (1963).
That the "Exception" clause in question was meant to impact motion picture derivative works, see the discussion in footnote 34 of Judge Weinfeld's "characteristically thorough opinion" at 543 F. Supp. 844 at 852-853, 720 F. 2d 733 at 734. Experience also teaches that a motion picture grant from an author may be reassigned, perhaps several times depending on financing arrangements, to the ultimate producer of the motion picture derivative work. Each motion picture rights assignor may, and will frequently, invest heavily of its money and creative talent to help get the project on the screen. Those intermediate and usually very complex financial arrangements (sometimes called turn-around arrangements) need not directly concern the author of the underlying novel or play or script, who looks to his original two party contract (whose payment obligations may have been assumed by the subsequent assignees.)
This is as common a situation in the motion picture industry as in the music publishing and record manufacturing businesses. See the discussions of these relationships in Judge Weinfeld's Opinion, 543 F. Supp. 844 in note 88 and 862 and 863, and in the Opinion of the Court of Appeals for the Second Circuit in this case, 720 F. 2d 733 at 742.
That the results argued for, and proposed in S. 1384, could lead to unintended results, see M. Nimmer, 3 Nimmer on Copyright section 11.03 (B) at page 1l-18.5 (1985), and Professor Nimmer's Brief to the Second Circuit Court of Appeals in this case on behalf of National Music Publishers Association as. Amicus Curiae at pages 10-11.
I would conclude, as did Judge Weinfeld, that the result achieved in Mills Music v. Snyder should not be upset as being fully consistent with the policies reflected in the Constitution, "to encourage the production and dissemination of artistic works for the general public good" (citations amitted), 543 F. Supp. 844 at 862.
As the Vice-President of Mills Music Inc., one of the parties to the Mills v. Snyder case, I regret that long-standing business travel commitments made it impossible for me to attend the recent hearing in Washington on S.1384. I would welcome the opportunity to testify at any future hearings which may take place. However, having read the various statements which were submitted to the Committee, I do feel it necessary to express several comments of my own in this letter.
I continue to believe, as I did at the outset of the Mills vs. Snyder litigation, that the position of a music publisher as a result of the Supreme Court decision is entirely consistent with the moral balance and the compromise of economic interests developed by Congress in the 1976 Copyright Act.
The pejorative reference to music publishers as mere "middlemen" is a distortion of the realities of our industry. It overlooks the fact that the publishers still are the ones who incur the financial risk and absorb all expenses and overhead in the publisher's share of income derived from copyrights. Yet we share gross receipts in virtually all cases on a 50 - 50 basis with our composers and authors. We accept this and recognize it as the nature of our business. It is still the music publishers who have the obligation and the expertise to evaluate new music and to guide that music and its composers and authors into the most productive creative and commercial channels, and thus exercise the business responsibility vested in them by the creators of music.
To paraphrase a popular television stockbroker commercial ,"We the music publishers make our money the hard way - we earn it!"
It is certainly not the purpose of this letter to attempt to rebut item by item the comments raised at the hearing by persons having other points of view. However, I must comment on a statement made by Mr. George David Weiss . He accurately stated that Mills Music has experienced a series of corporate parental changes, and presently, through Belwin Mills Publishing Corp., is owned by Columbia Pictures Industries Inc.
1776 Broadway, New York, N.Y. 10019-9998
December 10th, 1985
Honorable Arlen Specter
Mr. Weiss' statement attempted to convey a negative context to such corporate evolutions. The case is precisely the opposite. With an executive and professional staff totally commited to the continued promotion and use of catalog material and our great catalog standards of the past 50 years, we are in a far better position today than in decades past to fulfil the expectations of our composers and authors. The corporate strength and industry position of a major international production and marketing organization cannot be glossed over in an attempt to convey the impression that the old days were the best days. Personally, I have welcomed the entry of this company into the Columbia Pictures family, and the opening of new paths of music use in the television and motion picture industries. Just as a brief example, one of the first supportive acts to follow the Columbia Pictures acquisition of Belwin Mills was the development of a budget for production of a sampler record album containing 100 of the top hits from the Belwin Mills catalog 86 of which are catalog standards! This sampler album will be circulated to music users and music decision makers in all fields of the entertainment industry, for the purpose of expanding and generating commercial uses of the catalog.
As we pointed out in our brief to the Supreme Court, the essence of the derivative rights clause of the 1976 Copyright Act was a recognition of the necessity and desirability of a reconciliation and compromise between the conflicting interests of the publishers, film producers and other users and the composers, authors and their families. That is the heart of the matter: a compromise of economic interests and a recognition of the part that has been played and will continue to be played by the economic participants.
The publishers are not passive middlemen nor robber barons and the composers are not greedy or maltreated victims. We are all part of an industry that requires as much effective interplay as possible amongst the creators and the professionals, especially in this day and age of illegal appropriation and electronic thievery of copyright-protected materials.
Everyone has a part to play in the pattern of success. We will continue to play our part as we have for over 50 years in the creation and enhancement of popular music. Thank you for your patient consideration of these comments. I respectfully ask that this letter be included in the hearing record.