The reprinting industry reprints microfilmed works, out-of-date works, limited edition works and the like for the academic community and libraries. When a scholarly text is published, the first edition usually includes 200 to 500 copies. Years later, a library or teacher may have a need for the book, and the reprinter photographically reproduces the text for a cost of $13.00 to $15.00. Were the type to be reset, the cost would be $50.00. If a work is still protected by copyright, a royalty is paid to the author. However, most of the reprinted works are out-of-date prints whose literary content is in the public domain.

Were a public domain work printed in a typeface which was copyrighted, the reprinter could not photographically reproduce the work. The user would be forced to reset type and make the book at three to four times the cost of present methods. Thus, registrability of typefaces would destroy the microfilm and reprint industry.

More significantly, however, the registration of typefaces would have the practical effect of prohibiting the entry of literary works into the public domain after the statutory 56 year period lapses, if the work is printed in an unexpired, copyrighted typeface. This result is contrary to the policy of the Copyright Law, which grants to authors a defined, limited monopoly on their literary creations, not a perpetual one.

In addition, literary works already in the public domain will be able to be removed therefrom if reprinted in a protected typeface. Again, this result is contrary to the Constitutional mandate under which the Copyright Law was enacted. Therefore, the Register should give consideration to this possible result of her actions which goes squarely against the grain of the public policy embodied in the Copyright Law.

C. THE PROPOSED RULE CHANGE WOULD STIFLE THE CREATION OF NEW

TYPEFACE DESIGNS

Another speaker at the November 6, 1974 hearing, Alfred Wasserstrom, Esq., representing the Hearst Corporation, emphasized the predicament facing book publishers in view of the proposed rule change. Publishers of books rely upon their printers to furnish them with typefaces. If the printer uses a registered typeface, the owner of the registration would be in a position to make demands on the publisher, and to initiate litigation. To prevent the possibility of such litigation arising, publishers will be forced to instruct their printers not to use registered typefaces, and to use only public domain faces. In time, there will be no demand for newly designed text faces, and the type-form designers will ultimately be the ones to suffer.

VI. The Notice Provision of Copyright Registration Cannot Adequately Be Applied Where Typefaces Are Concerned

Assume a new literary work is published in a new typeface which is subject to copyright protection. Certain questions arise: Should there be separate notices for each work; should there be a separate symbol to identify the copyright in a typeface? The case law presents some problems in answering these questions. Ricordi v. Haendler, 194 F.2d 914 (2nd Cir. 1952) states that typography is part of the work included in the copyright notice, and cannot be subject to a separate copyright apart from the work. Therefore, the Ricordi case suggests that a separate notice for typography is unlawful. To change this rule, either Congress or the Courts would have to act.

On works which are in the public domain, the application of a copyright symbol would cause an observer to believe that the entire work was copyrighted, and therefore effectively remove the work from the public domain. It would be difficult and impractical to devise a symbol which would indicate that the typography alone was copyrighted, especially in view of several decisions that state there is no reservation of a copyright in typography of a work. Ricordi v. Haendler, supra; Deselee v. Nemmers, 190 F. Supp. 381 (E.D. Wisc. 1961).

When a copyright notice is applied to a type font, what is protected? Is each individual letter protected, or would rearrangement of the letters to form words avoid the copyright? These are questions which must be resolved before a decision is made on registrability of type fonts to prevent uncertainty among the potential users of typeface designs.

Carrying this concept one step further, § 202.10 (c) of the Copyright Regulations states that if a work is part utilitarian, and part aesthetic, the artistic contribution must be identified separately and be capable of existing independ

ently as a work of art. Does this mean that only the part of each new letter design which is different from an existing alphabet letter design is eligible for registration? If so, only the swirls, hooks, dashes, serifs, or such would be eligible for registration while the remainder of the letter remains in the public domain. Furthermore, if only the artistic and not the utilitarian aspects of the letter are covered by copyright registration, the copyright symbol applied to the whole letter would be misleading. It would be difficult for a typographer to tell which part of the letter was covered by the notice and which part was in the public domain. See: Ted Arnold Ltd. v. Silvercraft Co., 259 F. Supp. 733 (S.D.N.Y. 1966).

CONCLUSION

The proposed change in the Copyright Regulations to permit registration of typeface designs should not be enacted. The effects of such a change, both legally and practically, place such action far beyond the power of the Register of Copyrights. Congress or the courts should decide this question in the first instance, not an administrative officer of a legislative branch of our government. At present, the Copyright Office should hold any action in abeyance until pending litigation decides directly pertinent issues, or until the proponents of the change have had the opportunity to present their viewpoint to Congress.

FLAGSTAFF, ARIZONA,

July 15, 1975.

Congressman ROBERT W. KASTENMEIER,
Chairman, Subcommittee on Patents, Trademarks and Copyrights, House of
Representatives Judiciary Committee.

DEAR CONGRESSMAN KASTEN MEIER: Through the pages of U&lc, an international journal of Typographics published by the International Typeface Corporation, I have become aware of the proceedings regarding the changing of Copyright Office regulations in permitting registration of typefaces.

I believe that such copyright protection is absolutely necessary to encourage and sustain the creative atmosphere vital to the Graphic Communications Industry.

I am very much in favor of a change in copyright regulations to include protection of typeface designs.

In closing, I thank you for your attention and ask that you please lend your support to promote, "the progress of the useful arts by securing for limited times to authors, the exclusive rights to their writings."

Most sincerely,

LUIS TOMÁS.

Mr. KASTEN MEIER. I would like to call in connection with the socalled antipiracy aspects of present copyright law, three witnesses, Mr. Thomas Gramugliai for the Independent Record & Tape Association, Mr. David Heilman, for E-C Tape Service, a Wisconsin duplicator, and Mr. Alan Wally, for Record & Tape Association of America.

Mr. Gramuglia, you are first. Would you like to proceed?

TESTIMONY OF THOMAS GRAMUGLIA, INDEPENDENT RECORD & TAPE ASSOCIATION, ACCOMPANIED BY DAVID HEILMAN, E-C TAPE SERVICE, AND ALAN WALLY, RECORD & TAPE ASSOCIATION OF AMERICA

Mr. GRAMUGLIA. Can he go first?

Mr. KASTEN MEIER. Yes, of course. Mr. Heilman, would you like to go first?

Mr. HEILMAN. Thank you, Mr. Kastenmeier.

Mr. Chairman, members of the committee, the title of the speech I have written is "Won't Get Fooled Again", which is a hit record by the "Who" in 1971.

My name is David Heilman, and I am the president of E-C Tape, Brookfield, Wis. I am here today to discuss with you the 1909 Copyright Act and in particular the compulsory license provision.

The 1909 Copyright Act was written at a time when the music industry's volume was a few million dollars per year. Today, this industry is $2.2 billion per year, larger than all sports combined in America, and larger than the movie industry.

The 1909 act was written, and I quote from the committee report: "To give the composer an adequate return for the value of his composition," and it has been a serious and difficult task to combine the protection of the composer with the protection of the public and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and, at the same time, prevent the formation of oppressive monopolies which might be founded upon the very rights granted to the composer for the purpose of protecting his interests.

It seems, gentlemen, that the courts have been determined to change what Congress desired and have now given to the copyright holders the right to control all manufacturing and distribution of licensee music fixed prior to February 15, 1972.

When the recording companies approached Congress in 1967 and 1970 to obtain protection for their new hits, you were not told that five companies and their affiliates control the majority of the major copyrights in the United States. These five companies are CBS, WEA (in Atlanta), EMI (London, England), Polygram, and RCA.

Mr. KASTEN MEIER. Excuse me, Mr. Heilman. When you say major copyrights, you are referring to music?

Mr. HEILMAN. I am referring to the musical composition, the underlying works, sir.

EMI alone owns 400,000 copyrights. You were told many times that they had but small publishing houses and were independent third party people.

Congress granted protection for new music after February 15, 1972, and now the courts and the Solicitor General have said that you gave protection to all musical compositions, even those fixed prior to February 15, 1972.

This has led to the absurd conclusion that one may make similar use, but not identical use of a musical composition. Now, think for a second. If I obtain from CBS the performance rights to Tony Bennett's greatest hits, and then approach the copyright holder for a mechanical license, that same copyright holder can charge any price for the use of the composition or say no to the performance licensee as the compulsory licensee, as determined by the courts, does not apply since this use would be identical, not similar use.

This gives the public the mechanical trust that was feared in 1909 and has become a reality today.

When Congress granted relief with Public Law 92-140, the suggested retail of records was $3.98. Now, it is $6.98. You were told that if the pirates or re-recorders were put out of business, prices would drop. Have you or your family purchased a $3.98 record recently?

If this committee does not question some of these illegal practices immediately, then you will help the industry raise the price of a 35-cent

manufactured cost album to $8.98 within 3 years and a 50-cent manufactured cost tape to $9.98 in the same period of time.

The composer has been deprived of one-half of his royalties paid to the publisher, because the publisher has refused to accept the 2-cent compulsory licensee fee, and if I may digress for a moment, the 1909 Copyright Act was written to protect the author and composer. It says nothing of a man called a publisher. And now, the man who wrote that song never sees the money because the money automatically goes to the publisher by way of contracts.

You gentlemen just clarify the compulsory license provision for the musical composition fixed prior to February 15, 1972, by stating that one use of similar to all other uses and specifically in section 115, page 21, lines 21, of the bill 2223, drop the word "not" so that it reads, "a person may obtain a compulsory license for use of the work in the duplication of a sound recording made by another."

This change will stop the mechanical trust from growing until your committee has had time to verify who actually controls the majority of major copyrights in the United States, allow the composer an adequate return for his work, and stop the rise of prices to the public. I have attached to this speech a copy of my catalog of music that the public is currently being deprived of the opportunity to own, and I only hope you gentlemen in Congress, as the hit record in 1971 stated, "Won't Get Fooled Again."

Thank you.

[The documents referred to follow :]

"WON'T GET FOOLED AGAIN"

By the "Who"-1971

My name is David Heilman and I am the president of E-C Tape, Brookfield, Wisconsin. I am here today to discuss with you the 1909 copyright act and in particular the compulsory license provision.

The 1909 copyright act was written at a time when the music industry's volume was a few million dollars per year. Today this industry is 2.2 billion dollars per year, larger than all sports combined in America and larger than the movie industry. The act was written and I quote from the committee report "to give the composer an adequate return for the value of his composition" and it has been a serious and a difficult task to combine the protection of the composer with the protection of the public and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition, and at the same time prevent the formation of oppressive monopolies which might be founded upon the very rights granted to the composer for the purpose of protecting his interests. It seems, gentlemen. that the courts have been determined to change what Congress desired and have now given to the copyright holders the right to control all manufacturing and distribution of licensee music fired prior to February 15, 1972.

When the recording companies approached Congress in 1967 and 1970 to obtain protection for their new hits you were not told that five companies and their affiliates control the majority of the major copyrights in the US. Those five companies are CBS, WEA. EMI. Polygram and RCA.

Congress granted protection for new music after February 15, 1972, and now the courts and the Solicitor General have said that you gave protection to all musical compositions, even those fired prior to February 15, 1972.

This had led to the absurd conclusion that one may make similar use but not identical use of a musical composition. Think for a second. If I obtain from CBS the performance rights to Tony Bennett's greatest hits and then approached the copyright holder for a mechanical license, that same copyright holder can charge any price for the use of the composition or say no to the performance licensee as the compulsory licensee (as determined by the courts) does not apply

since this use would be identical not similar. This gives the public the mechanical trust that was feared in 1909 and has become a reality today.

When Congress granted relief with public law 92-140, the suggested retail of records were $3.98. Now they are $6.98. You were told that if the "pirates" or re-recorders were out of business, prices would drop. Have you or your family purchased a $3.98 record lately?

If this committee does not question some of these illegal practices immediately, then you will help this industry raise the price of a 35¢ manufactured cost album to $8.98 within three years and a 50¢ manufactured cost tape to $9.98 in the same period of time.

The composer has been deprived of one-half of his royalties paid to the publisher because the publisher has refused to accept the 2c compulsory licensee fee. You gentlemen must clarify the compulsory license provision for the musical composition fired prior to February 15, 1972, by stating that one use is "similar” to all other uses, and specifically in section 115, page 21, line 21, drop the word not so that it reads "a person may obtain a compulsory license for use of the work in the duplication of a sound recording made by another". This change will stop the mechanical trust from growing until your committee has had time to verify who actually controls the majority of major copyrights in the U.S., allow the composer an adequate return for his work and stop the raise of prices to the public.

I have attached to this speech a copy of my catalog of music that the public is currently being deprived of the opportunity to own.

I only hope you gentlemen and Congress, as the hit record in 1971 stated, "Won't Get Fooled Again".

Thank you,

DAVID HEILMAN.