his widow and children were entitled to renew. But although the Concerto was performed during Bartok's lifetime in Carnegie Hall and Boston's Symphony Hall and broadcast, printed copies were not disseminated by the publisher until a few months after Bartok's death. Although a "posthumous work" is not defined in the Act, the District Court Judge ruled that the test was "publication" after the author's death-conceding that this defeated the purpose of the renewal clause. He therefore concluded that the publisher, rather than Bartok's widow and children was entitled to the renewal copyright. The Authors League filed a brief amicus curiae on appeal. In its brief, the League argued that within the context of the renewal clause, a work could only be deemed "posthumous" if the rights to copyright or exploit it were not granted by the author during his lifetime. And this was also one of the points argued by the Appellant. The majority of the Court of Appeals so decided, "The only definition of 'posthumous' which fulfills the legislative purpose of protecting authors and their families is that in the narrow situation-not present here where a contract for copyright was never executed by the author during his life." The Court of Appeals reversed the District Court decision, and ruled that the widow and children were entitled to secure the renewal. The Court also ruled that where publishers had secured renewal copyrights in such circumstances, they were held in trust for the widow, widower and children. Needless to say, The Authors League believes that the majority opinion is correct, and we respectfully urge that the Subcommittee, in its report on the Revision Bill, indicate that the Court of Appeals construction is accepted by Congress and applies to Sec. 304 of the Revision Bill. Sincerely yours, Hon. GEORGE DANIELSON, IRWIN KARP, Counsel. RECORD INDUSTRY ASSOCIATION OF AMERICA, DEAR MR. DANIELSON: During the recent Subcommittee testimony on mechanical royalties, you questioned Leonard Feist of the Music Publishers' Association as to whether mechanical royalties above 2¢ are ever paid. Mr. Feist stated that royalties in excess of 2¢ are paid only by agreement between publishers and recording companies on long classical works at the rate of 14¢ per minute. Mr. Feist's statement to you was not complete and was not a full reflection of prevailing practice. In addition to classical works, popular recordings, by general agreement among publishers and recording companies, also enjoy an "overtime" rate whereby mechanical royalties and recordings in excess of 5 minutes are paid at the rate of 1⁄2¢ per minute. Therefore, a recording that is just over 5 minutes long would pay 21⁄2¢, a recording that is just over 6 minutes long would pay 34, etc. In our own industry's research on the mechanical question, I personally supervised the examination of the Top 150 best selling albums in a given week. Out of 1664 total tunes represented within those 150 albums, I found that 207 tunes (12.4%) were in excess of 5 minutes in length, and thus were qualified for a mechanical royalty in excess of 2¢. A recent Cambridge Research Institute study showed that mechanical royalty rates over 2¢ are paid on 5.4% of regular-priced records because of overtime rate practices. I hope this clarifies the inaccuracies in Mr. Feist's response to your question. Respectfully, Hon. ROBERT W. KASTEN MEIER, STANLEY M. GORTIKOV. MATHEMATICAL REVIEWS, Ann Arbor, Mich., October 23, 1975. Head-Committee on Copyright Laws, Rayburn House Office Building, DEAR SIR: A recent article in the U.S. News & World Report (October 6. 1975) called to my attention the reevaluation in Congress of the structure of our copyright laws, and I understand your committee is about to take some action. I hope it is not too late for you to consider, or if you already have then to add to your consideration, my concern for the exploitation of a form of creation which apparently is completely unprotected. This is the creation of the chess player in the form of the chess games he plays and annotates. This concern has been as old as chess itself, over 100 years in the form I am speaking of, but the exploitation is particularly visible and blatant today-with the rise of our own champion, Bobby Fischer, to the world chess throne, held by the Russians since 1948. His magnetic play and the romantic aspects of an individual genius (Nobel Prize Laureate Eccles, for his brain research, exclaims: ... you have a Mozart or Mendelsohn or a Keats with their marvelous youthful creativity; and in our own days Bobby Fischer at 6 discovered that he had been born with the brain of a chess genius!") successfully challenging the whole school of Russian chess, elevated the scale or renumeration in chess activities from thousands to millions of dollars. 66 But its greatest champion has also been its greatest victim-in many ways. With respect to the subject I am writing about, we find numerous books with Fischer's name on the cover and his games between covers, little or nothing else, for which he gets nothing. Yet obviously only his name is what sells them, and his activities. There are books with literally nothing but the scores of his games in them. Others have light comments and analysis from newspapers or chess magazines, where there is likewise no protection from the exploitation of the professional chess player. And it is only one step from newspapers and chess magazines to books. The relevance of this to the work of your committee should be obvious, although what to do about the exploitation may not be. Because chess, at the level I am speaking of, is not widely understood I have appended a long postscript describing what goes into the production of a chess game and how it enters into the public domain and is used there. Also I have tried to draw the parallel between chess and the arts, sciences, and sportsthree areas in which such exploitation has been fought with some success. The parallel may suggest ways to fight it in chess. I imagine it is premature to go into detail here about the form in which copyright protection may be extended to chess, so I will only add that I have given the matter considerable thought and find no serious problems that do not have parallels in the arts and sciences, where they have been tackled with considerable success. I would be glad to testify in front of your committee to elaborate on this. I expect to carry my case to the chess public through the offices of the United States Chess Federation. The editor of its main publication, Chess Life and Review, one of the leading chess magazines with a world wide subscription of 70.000, is sympathetic to the cause and supports my going to the policy board ruling over him, and petitioning that the magazine extend on its own volition at least token payment for any use of a chess game. It would set a precedent, and add dignity to the profession by allowing the artist to feel he owns his own creation. I also expect to use my academic offices to further the cause, and have prepared several articles dealing with chess in general, and the world championship in particular (I too once was a professional chess player, and am still one of the top ranked players in America). They will appear in various professional journals. In particular two very long articles will appear in the November and December issues of Chess Life and Review. Not everything I write will deal with the copyright laws per se, but much of it will concern the plight of the professional chess player in America—with lack of copyright protection being a contributing factor. I hope that you can give this a serious consideration. Respectfully yours, Enclosure. CHARLES I. KALME, Associate Editor. PRODUCTION OF THE CHESS GAME At top level play, a chess game is a product of many years of study and practice to attain general proficiency, plus specific preparation for the event in which the game is played. The general preparation usually begins in the early teens, and the top players usually become quite proficient by the early twenties. By the early thirties they are close to their peak (Bobby Fischer is 32!), but they continue their develop ment into the early forties and are still going strong by the early fifties. After that teaching and writing replaces active play. Preparation for each specific event can be extensive, with 6 months to 1 year of specialized training not being unusual for a world championship match. It consists of opening analysis and choice of style directed at a specific opponent or opponents, among other things. In this sense the game of chess is more a science than a sport, although the visible execution of the game is also a mixture of an artistic and athletic performance more artistic than athletic. CHESS IN THE PUBLIC DOMAIN A chess player's work can enter the public domain in two ways: his own play, as viewed by spectators on TV or other medium, including immediate presence; and publication in newspapers, magazines, and books. In publication, one should distinguish between the player's own analysis of his games, and other people collecting and analyzing them. The use of the game by others also can thus be two-fold: spectator enjoyment; and playing as well as analyzing the published games later. In use of published games later, one should distinguish between playing and analyzing for aesthetic pleasure, and doing it to gain scientific knowledge to be applied in tournaments, perhaps against the creator of the game himself. A point not fully appreciated, and most relevant when speaking of copyright protection, is that by far the greatest consumption of chess games comes from publications, not from immediate performance. I follow the game very closely and have played over all the games of Bobby Fischer and the great championsand almost all from books. Even when I watch a tournament, I will buy books or magazines describing them, because the games require more thought to appreciate than one can apply at the time of performance. This makes it paramount that the creator own his creation, as far as publication in newspapers, magazines and books goes, for given that this is where the real consumption takes place this is also where the profits lie. Tournament prizes and appearance fees are a mere pittance. Fischer can command big fees because of his uniqueness, but the state of professional chess is deplorable for others. The U.S. open championship offers $2000 for 2 weeks hard work, if you win! If not you get next to nothing, and there are over a hundred contestants! Given that an active player is not apt to divulge his analysis, for fear of it being used against him in tournaments, the exploitation is complete. Others make far more from his efforts than he does, since they can publish his games at will with no recompense to him. Some form of copyright protection would go a long way toward correcting this injustice and add dignity to the game of chess! NOVEMBER 2, 1975. Hon. ROBERT W. KASTEN MEIER, Head-Committee on Copyright Laws, Washington, D.C. DEAR CONGRESSMAN KASTEN MEIER: I agree with the thrust of Mr. Kalme's letter. I feel quite strongly and have so for many years, that chessplayers should have copyright protection for their chessgames. I, too, would be glad to go to Washington, D.C. to give my testimony on this subject before the appropriate committee of congressmen and/or senators who are drawing up the new copyright laws. Sincerely, P.S. You can contact me on this subject through Mr. Kalme. BOBBY FISCHER. Hon. ROBERT W. KASTEN MEIER, PUBLIC BROADCASTING SERVICE, Washington, D.C., October 28, 1975. Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of Justice, House of Representatives, Washington, D.C. DEAR CONGRESSMAN KASTEN MEIER: I am enclosing, for your consideration and assistance in the House Copyright Revision proceedings, a "Memorandum on the Status of Public Broadcasting and Copyright Law" dated October 15, 1975, prepared for the Public Broadcasting Service and other public broadcasting organizations. As you will see, the memorandum outlines in some detail how public broadcasting is legally exempt from clearance and payment obligations under the present Copyright Law. We will be very happy to answer any further questions you may have or provide any further help we can in this regard. Sincerely, CHALMERS H. MARQUIS, Vice President. MEMORANDUM ON THE STATUS OF PUBLIC BROADCASTING UNDER CURRENT COPYRIGHT LAW Important questions have been raised in recent Congressional hearings about the rights and liabilities of public broadcasting under the current United States Copyright Law (i.e. the Copyright Statute enacted in 1909, as amended to this date, 17 U.S.C.A. Sec. 1 et seq.). This memorandum is intended to present a concise summary of the public broadcasting legal position on the pertinent provisions in the present copyright law. It does not purport to be a comprehensive brief but rather a short statement of the copyright basis upon which public broadcasting has developed its clearance practices and formulated its revision proposals. BASIC CONCEPTS Fundamental to the public broadcasting position are two well-established propositions one of American copyright law, and the other of American communications law. Copyright Law.-Under the American Copyright Law, the exclusive rights of copyright owners are those-and only those specifically granted in the law itself. Thus, no copyright liability can devolve from any use or application of a copyrighted work which is not expressly reserved to the copyright proprietor in the Copyright Act. As the United States Supreme Court stated in its recent decision in Twentieth Century Music Corp. v. Aiken (June 1975), in ruling against an ASCAP claim of non-dramatic music performance rights infringement: "The Copyright Act of 1909... gives to a copyright holder a monopoly limited to specified "exclusive rights" in his copyrighted works . . . accordingly, if an unlicensed use of a copyrighted work does not conflict within an "exclusive" right confirmed by statute, it is no infringement of the holder's rights." So also states Nimmer on Copyright, Sec. 100 at p. 374-376: “A use of a copyrighted work is not an infringing act if such use does not fall within the scope of those rights expressly granted to the copyright proprietor. Thus privately reading a book or privately performing a dramatic work or even publicly performing a musical composition but not for profit all constitute uses of a copyrighted work which do not infringe the rights granted to the copyright proprietor. In this sense, the rights of a proprietor under the Copyright Act are rights of express enumeration..." This statutory scheme has been continued in the successive versions of the current Copyright Revision Bill-with the copyright proprietors' protected rights detailed in Section 106, subject to the limitations and exemptions provided in succeeding sections. Under existing copyright law, the copyright proprietor's broadcast rights in non-dramatic musical and literary works are limited to performance in public (or publicly) "for profit"; no performance rights at all are provided for nondramatic pictorial works. Nor are broadcast recordings anywhere specifically mentioned; whatever broadcast recording rights are claimed by copyright proprietors for published non-dramatic literary, musical and pictorial works must be sought either in the generic right to “print, reprint, publish, copy and vend" in Section 1(a), the particularized right to make a "transcription or record" of non-dramatic literary works in Section 1(c), or the compulsory license for "mechanical parts" with respect to musical works in Section 1(e). Whether or not so-called “synchronization" or "recording" rights come within these statutory categories, and to what extent the "for profit" restriction applies there as well, are clearly matters for judicial interpretation under the present law. Communications Law.-Under the federal communications law, public broadcasting is by definition non-commercial and non-profit in character. As to publie television stations, Section 73.621 of the FCC Rules and Regulations provides as follows: "S. 73.621 Non-commercial educational stations. In addition to the other provisions of this subpart, the following shall be applicable to non-commercial educational television and broadcasting stations: "(a) Except as provided in paragraph (b) of this section, non-commercial educational broadcast stations will be licensed only to nonprofit educational organizations upon a showing that the proposed stations will be used primarily to serve the educational needs of the community; for the advancement of educational programs; and to furnish a nonprofit and noncommercial television broadcast service. "(c) Noncommercial educational television broadcast stations may transmit educational, cultural and entertainment programs, and programs designed for use by schools and school systems in connection with regular school courses, as well as routine and administrative material pertaining thereto." With respect to public radio stations, Section 73.503 contains a similar but simpler provision to the effect that: "a noncommercial educational FM broadcast station will be licensed only to a nonprofit educational organization and upon showing that the station will be used for the advancement of an educational program"; Section 73.621 and 73.503 are set out in full in Appendix A hereto. The provisions of the Public Broadcasting Act of 1967-the basic charter for American public broadcasting—also emphasize the non-commercial character of public broadcasting and provide for the establishment of a non-profit corporation, known as the Corporation for Public Broadcasting, with the express function of engaging in public interest activities necessary or desirable to assist noncommercial educational radio and television broadcasting. The pertinent sections of the Public Broadcasting Act are set out in Appendix B, including the specific authorization of national common carrier interconnection services for public broadcasting at free or reduced rates in Section 396 (h). Under the aegis of the Corporation for Public Broadcasting, the Public Broadcasting Service and National Public Radio have also been organized as taxexempt non-profit corporations, the membership of which is limited to noncommercial, educational television and radio stations licensed as such by the Federal Communications Commission. SPECIFIC TYPES OF WORKS The public broadcasting amendments proposed to the Senate and House Subcommittees for the Copyright Revision bills are by their own terms limited to public radio and television broadcast only of non-dramatic musical, literary and pictorial works. This memorandum therefore does not deal with translations, dramatizations or adaptations under Section 1(b) nor the dramatic works covered in Section 1(d) of the existing Copyright Law. While the legal considerations with respect to music, books and photographs are to some extent interrelated, they can probably best be examined separately in order: Musical Works.-Under Section 1(e), the copyright proprietor has had, since 1909, the exclusive right to perform copyrighted non-dramatic music only when "publicly for profit". From early times in broadcasting, federal court decisions have affirmed that an over-the-air broadcast constitutes a public performance, and that commercial broadcasting is "for profit" even though direct listening or viewing fees are not charged (e.g., Remick v. American Auto Accessories, 5 F. 2d 411 (6th Cir. (1925). No decision has, however, yet dealt directly with the application of the "for profit" restriction to public broadcasting. Two cases have been cited by the music industry as persuasive toward nonexemption: Associated Music Publishers v. Debs Memorial Radio Fund, 141 F.2d 852 (2nd Circ. 1944) and Rohauer v. Killiam Shows Inc., 379 F. Supp. 723 (D.C.S.D., 1974). In the Debs Case, music licenses were required for sponsored and sustaining programs broadcast over a commercial radio station owned by a non-profit corporation as performed "publicly for profit". The decision itself has been seriously questioned as to reasoning; indeed, Professor Nimmer has even urged that the result in the Debs Case "goes beyond the proper place to draw the 'for profit' line" (Nimmer on Copyright, Sec. 107.32, p. 405, 406). The Debs |