-9 The fact that homeless people usually using shopping carts instead of suitcases. Yet it is It seems fair to say that CCNV conceived of the nature for the display and determined that it should have certain physical characteristics, based on its observations of actual conditions which characterized the subject to be depicted, and selected the complete title for the display. questionable whether any of the above contributions, standing alone, would satisfy the standards of originality summarized above. It is arguable that even in combination, CCNV's contributions do not meet those requirements. The implications of this holding for songwriters become clear if we compare the creative elements of sculpture which were considered in CCNV to the elements of a song or a musical composition. While it is difficult to draw precise parallels between the two kinds of creative works, the following list shows analogous ideas or specifications which music publishers frequently supply, on which, under CCNV, they could conceivably base claims of joint authorship:1/ Litigatio It is unlikely that CCNV would give rise to increased Iitigation concerning whether two parties intended their contributions to form a interdependent whole: there is ample precedent for the proposition that a composer who composes the music for a song and the lyricist who composes the lyrics intend their contributions to form a whole song with music and lyrics, whether or not they prepare their respective contributions (Footnote cont'd.) -10 The idea for a song on a particular topic; The structural format for a composition (e.g., a chorus and no more than five verses); Rhythm and time requirements for a composition; The title for a song or composition; The instruments for which a piece is to be scored; The number of voices; The key; and The nature of any arrangements. This possibility seems grossly unfair: publishers should not be able to claim a share of royalties for the simple act of commissioning a song or a composition. By requiring in the case of a specially commissioned work that both parties sign a written contract before the commencement of the work, the proposed addition to the definition of "joint work" would obviate virtually all of the above potential claims. (Footnote cont'd. from previous page) simultaneously and whether or not each even knows the other. See, e.q., Edward B. Marks Corporation v. Jerry Vogel Music Co., Inc., 140 F.2d 266 (2d Cir. 1944); Shapiro, Bernstein & Co., Inc. v. Jerry Vogel Music Co., 161 F.2d 406 (2d Cir. 1947) ("Melancholy Baby"). -11 Simply stated, without an agreement which meets the statutory standards, a publisher would not be able seriously to entertain such claims, especially in light of the procedural rule which imposes sanctions on attorneys for bringing frivolous claims. The Songwriters Guild of America NOTE TO SONGWRITERS: (A) DO NOT SIGN THIS CONTRACT IF IT HAS ANY CHANGES UNLESS YOU HAVE FIRST DISCUSSED SUCH CHANGES Composition 1. The Writer hereby assigns, transfers and delivers to the Publisher a certain heretofore unpublished original musical compost. (Insert title tion, written and/or composed by the above-nar..ed Writer now entitled of composition here) (hereinafter referred to as "the crimposition), including the tide, words and music thereof, and the right to secure copyright therein throughout the entire world, and to have and to hold the said copyright and all rights of what never nature thereunder existing, for ..... years from the date of this contract or 35 years from the date of the first release of a commercial sound recording of the composition, whichever term ends earlier, unless this contract is sooner terminated in accordance with the provisions hereof. (Insert number Performing 2. In all respects this contract shall be subject to any existing agreements between the parties hereto and the following small Rights Affiliation performing rights licensing organization with which Writer and Publisher are affiliated: (Delete Two) - (ASCAP, BMI. SESAC). Nothing contained herein shall, or shall be deemed to, alter, vary or modify the nights of Writer and Publisher to share in, receive and retain the proceeds distributed to them by such small performing rights licensing organization pursuant to their respective agreement with it. Warrancy Royalties (Insert amount of advance here) Piano Copies Sliding Scale (Insert percentage here) Foreign Royalties (Insert percentage here) Orchestrations and Other Arrangements, etc. (Insert percentage here) 3. The Writer hereby warrants that the composition is his ole, exclusive and original work, that he has full right and power to make this contract, and that there exists no adverse claim to or in the composition, except as aforesaid in Paragraph 2 hereof and except such rights as are specifically set forth in Paragraph 23 hereof. 4. In consideration of this contract, the Publisher agrees to pay the Writer as follows: (a) S.......... as an advance against royalties, receipt of which is hereby acknowledged, which sum shall remain the property of the Writer and shall be deductible only from payments hereafter becoming due the Writer under this contract. (b) in respect of regular plano copies sold and paid for in the United States and Canada, the following royalties per copy: (in no case, however, less than 10%) of the wholesale selling price of the first 200,000 copies or less; plus (in no case, however, less than 12) of the wholesale selling price of copies in excess of 200,000 and not exceeding 500,000, plus (c) (in no case, however, less than 15%) of the wholesale selling price of copies in excess of 500.000. . (in no case, however, less than 50%) of all net sums received by the Publisher in respect of regular plano enpies, orchestrations, band arrangements, octavos, quartets, arrangements for combinations of voices and/or instru ments, and/or other copies of the composition sold in any country other than the United States and Canada, provided, however, that if the Publisher should sell such copies through, or cause them to be sold by, a subsidiary or affiliate which is actually doing business in a foreign country, then in respect of such sales, the Publisher shall pay to the Writer not less than 5% of the marked retail selling price in respect of each such copy snid and paid for. (d) in respect of each copy sold and paid for in the United States and Canada, or for export from the United States, of orchestrations, band arrangements, octavos, quartets, arrangements for combinations of voices and/or instrumente, and or other copies of the composition (other than regular plano copies) the following royalties on the wholesale selling price (after trade discounts, if any): Publisher's (0) Licenser's Professional Material and Electrical (lasert Mechanicals, Transcription, percentage All Other Rights Synchronization, Licensing Agent's Charges here) (in no case, however, less than 10%) on the firs: 200,000 copies or less; plus . (in no case, however, less than 12%) ne all copies in excess of 200,000 and not exceeding 500,000, plus . (in no case, however, less than 15%) on all copies in excess of 500,000. (1) if the composition, or any part thereof, is included in any song book, folio or similar publication issued by the Publisher containing at least four, but not more than twenty-five musical compositions, the royalty to be paid by the Publisher to the Writer shall be an amount dermined by dividing 10% of the wholesale selling price (after trade discounts, if any) of the copies sold, among the total number of the Publisher's copyrighted musical compositions" included in such publication. If such publication contains more than twenty-five musical compositions, the said 10% shall be increased by an additional 4% for each additional musical composition. (ii) If, pursuant to a license granted by the Publisher to a licenses not controlled by or affiliated with it, the composi tion, or any part thereof, is included in any song book, fallo or similar publication, containing at least four musical compositions, the royalty to be paid by the Publisher to the Writer shall be that proportion of 50% of the gross amount received by it from the license, as the number of uses of the composition under the license and during the license period, bears to the total number of uses of the Publisher's copyrighted musical compositions under the Ncense and during the license period. (ii) In computing the number of the Publisher's copyrighted musical compositions under subdivisions (1) and (ii) hereof, there shall be excluded musical compositions in the public domain and arrangements thereof and those with, respect to which the Publisher does not currently publish and offer for sale regular piano copies. (iv) Royalties on publications containing less than four musical compositions shall be payable at regular piano copy rates. (1) As to "professional material" not sold or resold, no royalty shall be payable. Free copies of the lyrics of the composition shall not be distributed except under the following conditions: (1) with the Writer's written consent; or (ii) when printed without music in limited numbers for charitable, religious or governmental purposes, or for similar public purposes, if no profit is derived, directly or indirectly; or (iii) when authorized for printing in a book, magazine or periodical, where such use is incidental to a novel or story (as distinguished from use in a book of lyrics or a lyric magazine or folio), provided that any such ure shall bear the Writer's name and the proper coovright notice; or (iv) when distributed solely for the purpose of exploiting the composition, provided, that such expivication is restricted to inc aistribution of limited numbers of such copies for the purpose of influencing the sale of the composition, that the distribution is independent of the sale of any other musical compositions, services, goods, wares or merchandise, and that no profit is made, directly or indirectly, in connection therewith. .$ (In no case, however, less than 30%) of: All gross receipts of the Publisher in respect of any licenses (including statutory royalties) authorizing the manufac ture of parts of instruments serving to mechanically reproduce the composition, or to use the composition in synchroni zation with sound motion pictures, or to reproduce it upon electrical transcription for broadcasting purposes; and of any and all gross receipts of the Publisher from any other source or right now known or which may hereafter come imó existence, except as provided in paragraph 2. (h) If the Publisher administers licenses authorizing the manufacture of part of instruments serving to mechanically reproduce said composition, or the use of said composition in synchronization or in timed relation with sound moring pictures or its reproduction upon electrical transcriptions, or any of them, through an agent, trustee or other adminis trator exting for a substantial part of the industry and not under the exclusive control of the Publisher (hereinafter sometimes referred to as licensing agent), the Publisher, in determining his receipts, shall be entitled to deduct from gross license fees paid by the Licenses, a sum aqual to the charges paid by the Publisher to said licensing agent. provided, however, that in respect to synchronization or timed relation with sound motion pictures, said deduction shall In no event exceed $150.00 or 10% of said gross Scense fee, whichever is less; in connection with the manufacture of parts of instruments serving to mechanically reproduce said composition, said deductions shall not exceed 3% of said gos Ncense fee; and in connection with electrical wanscriptions, said deduction shall not exceed 10% of said grosh Television and New Uses Writer's Consent 10 Licenses Trust for Writer Writer Writers' the Writer in each instance, except (1) that the Publisher may grant such licenses with respect to electrical transcription W Except to the extent that the Publisher and Writer have heretofore or may hereafter assign to or vest in the mail (1) Any portion of the receipts which may become due to the Writer from license fees (in excess of offsets), whether (n) On all regular piano copies, orchestrations, band or other arrangementa, octavos, quartets, commercial sound recordings and other reproductions of the composition or parts thereof, in whatever form and however produced, Puhlicher shall include or cause to be included, in addition to the copyright notice, the name of the Writer, and Publisher shall include a similar requirement an every license or authorization issued by it with respect to the composition. 5. Whenever the term "Writer" is used herein, it shall be decmod to mean all of the persons herein defined as Writer" and any Respective and all royalties herein provided to be paid to the Writer shall be paid equally to such persons if there be more than one, unless Shares otherwise provided in Paragraph 23. Release of 6. (a) (i) The Publisher shall, within. Commercial Sound Recording (Insert period not exceeding 12 months) (Insert amount to be not less than $250) (Insert period not exceeding six months) Writer's Mano Coples. Plano Arrange ment or Lead Sheet - (Select (1) (which shall not be charged thereafter may become due the months (the "additional ► (li) If, prior to the expiration of the initial perind, Publisher pays the Wnier the sum of $. against or recoupable out of any advances, royalties or other monies theretofor paid, then due, or which Writer from the Publisher pursuant to this contract or otherwise), Publisher shall have an additional period") commencing with the end of the initial period, within which to cause such commercial sound recording to be made and released as provided in subdivision (1) above. If at the end of the additional perind a commercial sound recording has not been made and released, an above provided, then this contract shall terminate. (Hi) Upon termination pursuant to this Paragraph 6(8), all rights of any and every nature in and to the composition and in and to any and all copyrights secured thereon in the United States and throughout the world shall automatically re-vest in and become the property of the Writer and shall be reassigned to him by the Publisher. The Writer shall not be obligated to return or pay to the Publisher any advance or indebtedness as a condition of ruch -assignment; the said re-assignment shall be in accordance with and subject to the provisions of Paragraph & hereof, and, in addition, the Publisher shall pay in the Writer all gross sums which it has theretofors or may thereafter receive in respect of the compositinn. (b) The Publisher shall furnish, or cause to be furnished, to the Writer six copies of the commercial sound recording referred to in Paragraph 6(a). (c) The Publisher shall (1) within 30 days after the initial release of a commercial sound recording of the composition, maka, publish and offer for sale regular piano copies of the composition in the form and through the channels customarily employed by it for that purpo »□ (H) within 30 days after execution of this contract make a piano arrangement or lead sheet of the composition and Furnish sis or (copies thereof to the Writer. In the event neither subdivision (1) nor (H) of this subparagraph (c) is selected, the provisions of subdivision (i) shall be atomatically deemed to have been selected by the parties. Foreign 7. (a) Each copyright on the composition in countries other than the United States shall be scored only in the name of the Foreign (b) No rights shall be granted by the Publisher in the composition to any foreign publisher or licenses inconsistent with the terme Publisher shall have complied with the provisions of Paragraph 6 hereof. Foreign (c) If foreign rights in the composition are separeasly conveyed, otherwise than a part of the Publisher's current and/or future Advance catalog, not less than 20% of any advance received in respect thereof shall be credited to the account of and paid to the Winer Foreign (4) The percentage of the Writer on monies received from foreign sources shall be computed on the Publisher's not receipes. Percentage provided, however, that no deductions shall be made for offers of monies due from the Publisher to mid foreign sources or for advances made by such foreiga murces to the Publisher, unless the Writer shall have received at leser 30% of said advances. No Foreign (e) In comparing the receipts of the Publisher from Acenses granted in respect of synchronization with sound motion pictures, or Allocations in respect of any world-wide cases, or la respect of licenses granted by the Publisher for use of the composition in countries other than the United States, no amount shall be deducted for payments or allocations publishers or licensees in such countries Termination 1. Upon the termination or expiration of this contract, all rights of any and every nature in and to the composition and in and or Expiration any and all copyrights secured therson in the United States and throughout the world, shall re-ess in and become the property of the of Contract Writer, and shall be re-assigned in the Writer by the Pubilahem free of any and all uncombrances of any surees whatsoever, provided that (a) If the Publisher, prior such termination or expiration, shall have granted a domestic license for the use of the companion, |