(b) Basically, the bill neither expands nor contracts the scope of copyright coverage or protection. Copyrighted works which are subsequently utilized as designs for useful articles are specifically made eligible for protection under the bill. Thus, although a copyright proprietor utilizing his artistic work in this manner is not required to rely solely upon the design law for protecting his work as embodied in useful articles, he is afforded the opportunity to seek that type of protection. Where the proprietor of copyright in a work later embodied in a useful article obtains registration of the resulting design under the bill, he cannot thereafter claim copyright protection in useful applications of his work. As stated above, the purpose of Title II is to achieve the balance required in this area. It seeks to afford moderate protection to original, commercial valuable designs which may not be considered "inventions", or "works of art". Such protection is available quickly, i.e., upon the marketing of the product; it is available without undue expense for the smaller manufacturer. The scope of protection is no broader than actually needed, extending only to copying and not to independent creation or merely selling. The term is short but generally sufficient. I would, of course, be happy to answer any questions the Committee or its staff has either now or at a later date. 85th Congress RECENT HISTORY OF DESIGN LEGISLATION H.R. 8873 (Willis) introduced July 23, 1957, by request of Chairman, Coordinating Committee on Designs of National Council of Patent Law Associations. 86th Congress S. 2075 (O'Mahoney-Wiley-Hart) introduced May 28, 1959. S. 2852 (Talmadge) introduced January 19, 1960. H.R. 9525 (Ford) introduced January 11, 1960. H.R. 9870 (Flynt) Introduced January 25, 1960. Hearings before Subcommittee on Patents, Trademarks and Copyrights of the Committee on the Judiciary, United States Senate, 86th Congress, 2nd Session, June 29, 1960. 87th Congress S. 1884 (Hart-Wiley-Talmadge) introduced May 16, 1961. H.R. 6776 (Flynt) introduced May 3, 1961. H.R. 6777 (Ford) introduced May 3, 1961. Hearing before the Subcommittee on Patents, Trademarks and Copyrights of the Committee on the Judiciary, United States Senate, 87th Congress, 1st Session, on S. 1884, August 15, 16 and 17, 1961. Senate Report No. 1725 (Calendar No. 1684), 87th Congress, 2nd Session, dated July 12, 1962. S. 1884-passed Senate-July 23, 1962. 88th Congress S. 776 (Hart & Talmadge) introduced February 11, 1963. H.R. 769 (Ford) introduced January 9, 1963. H.R. 5523 (Libonati) introduced April 8, 1963. S. 776-passed Senate-December 6, 1963. Hearing before Subcommittee on Patents. Trademarks and Copyrights of House Judiciary Committee on December 12, 1963, on H.R. 5523, 769, 323 [and S. 776] (Transcript never printed). House Subcommittee reported bill out with amendments on August 12, 1964no report printed. 89th Congress S. 1237 (Talmadge & Hart) introduced February 23, 1965. H.R. 3366 (Flynt) introduced January 25, 1965. Hearing before Subcommittee on Patents, Trademarks and Copyrights of Committee on the Judiciary, United States Senate, 89th Congress, 1st Session, July 28, 1965. S. 1237 reported with amendments by Senate Subcommittee on July 22, 1966. Senate Subcommittee reported Bill out as Title III, S. 543, December 10, 1969. 93rd Congress S. 1361, Title III (McClellan) passed Senate September 9, 1974. [The following communication dealing with the typeface issue was received by the subcommittee from the Register of Copyrights:] COPYRIGHT OFFICE, THE LIBRARY OF CONGRESS, Hon. ROBERT W. KASTEN MEIER, Washington, D.C. DEAR MR. KASTENMEIER: In the course of my testimony before your Subcommittee on May 7, 1975, I was able to comment only briefly on questions concerning works of art and designs, including title II of H.R. 2223. I believe that title II, the so-called Design Protection Act, is an important and much-needed piece of legislation, and I hope you will be able to schedule testimony on it during the current hearings. As you know, design legislation has been pending in Congress even longer than title I, the copyright revision bill itself, but no House hearings have been held on the question since 1947 and the last Senate Hearings were in 1967. Equally important is the related question of protection for the designs of typefaces, which has become a major point of concern for the Copyright Office. To the best of my recollection, no issue of protection for typeface designs as works of art under the copyright law was raised during the early part of the revision program, including the period during which the bill was under consideration by your Subcommittee. I first became aware of typeface design as a major domestic copyright issue in the early 1970's when the widespread introduction of photomechanical processes for reproducing the printed word promised to alter the typographic industry radically. In the Copyright Office, my predecessor, Mr. Kaminstein gave serious consideration to industry arguments that we should register claims to copyright in typeface designs as works of art. We had, and still have, a regulation [37 C.F.R. 202.1(a)] that has been interpreted to prohibit copyright registration for typeface designs, and the Copyright Office was urged either to change the regulation or to interpret it differently. Following Mr. Kaminstein's retirement the issue was reserved, but has been raised again during the past two years, both in the Copyright Office and in the courts. Meanwhile, the technological developments in this field were being felt throughout the world, and resulted in a movement to obtain better international protection for typeface designers. The United States participated in the development of, but did not sign, the Vienna Typeface Convention of 1973, which would obligate members to protect original typeface designs for a minimum of 15 years under one or another form of law, specifically including copyright protection. Shortly after I became Register of Copyrights, I was once more presented with the petition and arguments of domestic proponents of copyright protection for typeface designs, some of whom had been active in formulating the international treaty. However, I was also made aware of considerable opposition to any change in the Copyright Office Regulations to permit registration of typeface designs. To provide an opportunity for both sides to present their arguments openly, I held a public hearing on November 6, 1974, the first rulemaking hearing ever held by the Copyright Office, and received testimony on the issues implicit in any change in the regulations affecting typeface designs. We specifically requested comment on five points. Written comments were received through January 15, 1975. In my closing statement at the conclusion of a highly informative all-day hearing, I had to say that I felt I was "between a rock and a hard place." A strong case was made by each side. Proponents of a change in the regulation sought to demonstrate the significance of artistry in designing typefaces-a "beautiful group of letters," and the differences between the typefaces of different designers. Opponents of any change raised the issues as to the scope of my regulatory authority, and the practical ramifications of an administrative change in this case. Among others, Irwin Karp, Counsel for the Authors' League, insisted that protection for typeface designs should be dealt with solely as a legislative matter. He said: "We also believe that if any change ultimately ought to be made in the status of publishing typography-font and face-it should certainly not be done by the inflexible method of change in your registration regulations. Neither you or the regulations have the capacity to cope with multitudinous problems that would be created. . . . "You are not a legislator. You can only say yes or no. Register or not register. And you can't mediate or modify the impact of that absolute judgment on many industries and the whole process of disseminating information and culture in this country." [Transcript of Typeface Hearing, November 6, 1974, pages 83-84.] As I indicated at the Office's hearing, I take this argument very seriously. I also believe that, implicit in the provisions of H.R. 2223 is the hitherto unexplored question of whether and to what extent typeface designs would be protected under the language of your revision bill, including the design legislation in title II. At the Office's hearing I asked proponents and opponents to reflect on the design bill as a possible solution to the question of protection for typefaces. From the written comments, two primary issues emerged. First, the term of protection in the design bill is considered by many to be too short for typeface designs; enactment in its present form would not enable us to join the Vienna Typeface Convention. Some doubt was also expressed as to whether typeface designs are within the subject matter of the design bill, since the bill protects "ornamental designs of useful articles" and the various physical embodiments of typeface designs might not come within the bill's definition of "useful articles." Under the circumstances, I believe it would be highly appropriate for you to schedule time at your hearings to receive testimony from both sides on the question of protection for type-face designs under either title I or title II of your bill. Finally, I call to your attention the recent, very strong movement among individuals and groups of artists (painters, sculptors, and creators of fine, graphic and applied art) for more effective protection. Proposals have been advanced for amendments to the copyright law for this purpose, including registry schemes and opportunities for artists to share in the profits for later sales of their works. I believe these proposals deserve to be heard by your subcommittee, and that the current hearings would be enriched by testimony on them. With my best personal wishes, Sincerely yours, Re H.R. 2223. Hon. ROBERT KASTEN MEIER, BARBARA RINGER, Register of Copyrights. COWAN, LIEBOWITZ & LATMAN, P. C., Chairman, Subcommittee on Courts, Civil Liberties, and Administration of Justice of the House Judiciary Committee, Washington, D.C. DEAR MR. CHAIRMAN: At yesterday's hearing on the above bill a question was raised as to the position taken by me at the hearing before the Register of Copyrights on the question of copyright protection for typeface designs. At the hearing I stated that "[a]lthough I am expressing my own views on the copyright questions raised by the Register of Copyrights, I represent the International Typographic Composition Association and the Advertising Typographers Association of America, Inc. ..." I then stated the following: "My clients share my view that creative designing deserves its reward and that such reward is sometimes dependent on federal statutory protection. At the same time, my clients and I believe that copyright is not the proper vehicle for protection of typeface designs and that the established practice of the Copyright Office in refusing registration in that area is well-founded." Later in my statement I noted that the National Committee for Effective Design Legislation "became convinced that a change in legislation was needed," and "I frankly think that today's proponents must follow the same route." In suggesting the legislative route I made particular reference to the design bill, i.e., H.R. 2223, warning, however, that not all typeface designs "would be covered by such a bill; nor would protection under that bill be anywhere near as broad as under copyright." I had also anticipated some of the problems which were raised in the typeface phase of yesterday's hearing, suggesting to the Register that "the issues necessarily raised by any change of the present regulations and practice legitimately reflects economics, special antitrust considerations, compulsory licenses and other matters too fearsome to mention." I trust that the foregoing clarifies the position I took on this issue before the Register. I enclose a complete copy of my written statement. I found the opportunity to testify yesterday a rewarding experience and hope that my remarks will be of assistance to the Subcommittee. Sincerely yours, ALAN LATMAN. STATEMENT BEFORE REGISTER OF COPYRIGHTS ON COPYRIGHT OFFICE REEVALUATION OF ITS PRESENT PROHIBITION OF REGISTRATION FOR TYPEFACE DESIGNS SUBMITTED BY ALAN LATMAN ON BEHALF OF THE INTERNATIONAL TYPOGRAPHIC COMPOSITION ASSOCIATION AND THE ADVERTISING TYPOGRAPHERS ASSOCIATION, INC. My name is Alan Latman. I am a member of the law firm of Cowan, Liebowitz & Latman, P.C., 200 East 42d Street, New York, N.Y. and a member of the New York and District of Columbia bars. Although I am expressing my own views on the copyright questions raised by the Register of Copyrights, I represent the International Typographic Composition Association and the Advertising Typographers Association of America, Inc., whose combined membership includes about 350 small commercial and advertising typographers throughout the country. The average is well under $1,000,000 in gross sales. My clients are the "man in the middle". As typographers they buy type fonts, traditionally from the same people who sell them typesetting equipment, to service graphic arts users such as advertising agencies, publishers, printers, public institutions, display media and other disseminators of the printed word, and industry and the public generally. My clients share my view that creative designing deserves its reward and that such reward is sometimes dependent on federal statutory protection. At the same time, my clients and I believe that copyright is not the proper vehicle for protection of typeface designs and that the established practice of the Copyright Office in refusing registration in that area is well-founded. As the Register noted, this is the first occasion where interested persons have been given the opportunity to present views in a more or less formal setting on a question of Copyright Office practice. To the extent that this affords the Register the opportunity to receive a broader spectrum of views than would otherwise be possible, it is to be commended. On the other hand, the Register may well come to feel like the sixth grader asked to give a book report on a book about penguins. His succinct report was as follows: "This book tells you more about penguins than you want to know." What I am suggesting is that the issues necessarily raised by any change of the present regulations and practice legitimately reflects economics, special antitrust considerations, compulsory licenses and other matters too fearsome to mention. I have no particular expertise in the technical or economic aspects of typography. I will, accordingly, focus on the matters within my experience-namely, copyright principles, particularly in the design area-reserving a few minutes for Walter Dew, Executive Director of Advertising Typographers Association, to present in a nutshell why my clients are here; in other words, why my views on copyright coincide with their views on the realities of the market place. There are present in the hearing room today not only Mr. Dew but Mr. Charles Mulliken, Executive Secretary of the International Typographic Composition Association, Gordon La Fleur, President of that association, and Charles Moore, immediate past President of the International Typographic Composition Association, all of whom are prepared to answer any questions the Register may have on the facts of life with regard to typefaces from the point of view of those who buy them and use them. And we will undoubtedly take advantage of the opportunity to supplement our testimony with written statements. As the Register knows, my interest and involvement in the field of protection for creativity in design dates back more than 20 years. This interest for a number of years centered about my role as counsel for the National Committee for Effective Design Legislation, an inter-industry group of designers, manufacturers and their respective associations, seeking new federal legislation protecting designs against piracy. The efforts of this Committee are embodied in Title III of S. 1361 passed by the Senate two months ago and currently pending before the House of Representatives. This bill represents, in my view, the best thinking on an equitable and yet effective statutory route for protection of designs of useful articles. Based on the arguments I have seen in favor of a change in Copyright Office practice, the proponents are here today for the same reason the NCEDL went to Congress. There was a difference, however, in the line-up of proponents and opponents: In my experience with the National Committee I found the small companies in every field seeking protection and the large companies tending to oppose; the reverse seems true in the present situation.' The reason is that the Copyright Law, as we know it, simply does not cover all designs of useful articles, even all creative ones. (Parenthetically, the relatively few designs qualifying as "works of art" under copyright receive excessive or inappropriate protection). The NCEDL became convinced that a change in legislation was needed. I frankly think that today's proponents must follow the same route. Indeed, the special circumstances surrounding the designing and marketing of typeface designs make these designs about the least likely candidates I can think of for preferred treatment under the Copyright Law. These circumstances include: (1) the function of type face designs and the constraints resulting from that function; (2) the fact that the ordinary observer is generally neither capable of, nor interested in, making the visual or aesthetic distinctions implicit in a copyright system. And notwithstanding my disclaimer of expertise, two glaring undisputed and highly unusual features of the industry: (1) type fonts are traditionally sold only by the manufacturers of the equipment on which they are used; (2) the fonts are not interchangeable or compatible on different equipment. The parallel which strikes in traditional copyright terms would be a radio station which could only play songs chosen for recording by the company which manufactures its turntables. If this parallel seems farfetched because of the existence of compulsory licensing, I must say that the testimony this morning 1 The line-up of witnesses today is also significant in that the Authors League and its counsel Irwin Karp--who are the most sensitive of anyone in the country to the needs for protection of creative people are opposing the change. 57-786-76-pt. 2—22 |