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plus fifty years. At present, many elderly artists are in the curious position of outliving the royalties on their early works just at the time of life when this income may be most valuable to them."

Another matter of justice and equity to the composers and their publishers is the elimination in the proposed bill of the present exemption of public performance of non-dramatic literary and musical works where the performance is "not for profit". In 1909, as I have noted, the major part of the composers' and publishers' income came from sales. All music was printed and was available only in that form. Today, music is universally available as sound and its public performance is omnipresent. In fact, it must be the serious composer's chief source of income, if he is to be compensated for his creativity.

Just as the current statute takes note of the fact that the dramatist's compensation must come entirely from performances of his work, whether for profit or not, since sales of plays are negligible, so too must the composer's present sit. uation and his right to royalties from all performances of his work be recognized.

One of the greatest users of concert music, chiefly through recordings or tapes, is the educational broadcaster whose activities are now deemed "not for profit." Performers, engineers, announcers and others are all paid in one way or another. But the composer is not now compensated, and this seems neither equitable nor to give encouragement to the creative art of music. On this subject, the Rockefeller Panel Report had this to say:

"But perhaps the most serious threat is the current advocacy to exempt educational institutions from the obligation to pay royalties for the performance of musical, dramatic, and literary works. Some educational associations are seeking to gain a very broad exemption in the revision of the copyright law on the use of artisitc creation, extending even to an exemption for mimeographed material used by a teacher in a classroom. But their efforts are focused on gaining freedom from royalties and control by the author of material used br educational television. Although educational television, in its initial stages, clearly deserves concessions and intelligent cooperation in its development by artists, there seems no reason why it should receive blanket exemption from the payment of reasonable fees. Were it to receive this exemption-indeed, if any educational institution were to receive it-aritsts would once more be in a position of being forced to provide a partial subsidy for the general cultural and intellectual development of the nation."

It would strike me as ironic, gentlemen, if educational broadcasters resist payment of some moderate royalties for the right to broadcast copyrighted music. It would seem to me to be out of keeping with the traditional cultural role of the universities and other institutions which support these broadcasting facilities, frequently out of tax moneys. One would hardly expect a university press to refuse to pay royalties to the authors of their books, and, indeed, they, as a matter of universal practice, do pay royalties. Universities proudly maintain composers in residence, and it would be strange if they failed to acknowledge their obligation to composers not in residence whose music they use to such a great extent.

I believe that the language of Section 109 (3 & 4) of the bill which exempts certain types of performances from the payment of royalties is equitable even though it may be argued that if music is worthy of playing it is always worthy of payment. In fact, as Jasques Barzun, Dean of Graduate Studies at Columbia University, has recently written in his book "Music in American Life" :

"As for free performances, which many users deem a great favor on their part, they butter no parsnips."

I have mentioned the growth of the educational market for printed music to the point where it represents the most important single area of sales for printed music today. During the course of these hearings, I am quite confident that representatives of the educational world will urge special considerations in the bill, as they have in the hearings before the House Subcommittee dealings with copyright revision. It would not be appropriate for me to recite what I believe these special pleas may be, but I would like to indicate the special vulnerability of music to what seems to be the position of this group. Should they propose that a school be permitted to reproduce a single copy of a complete work, I would like to point out that in terms of music for band or orchestra the single copy satisfies the total demand. If they suggest that schools should have the right to reproduce a brief work in reasonable quantities (meaning one for each member of a class), I would like to point out that this could completely destroy the school market for choral music.

The relationships which have existed between music publishers and music educators represent, I believe, a model of intelligent cooperation and mutual accommodation. I am sure that their organization, understanding the music publishers' essential contribution to their work, will not urge the exemptions which may be sought, but I want to make clear the possible impact of proposals of other groups of educators on the special area of music.

Other witnesses with the highest qualifications will testify later on behalf of music concerning the bill in general from the point of view of their particular field of activity. Their broad knowledge and profound understanding will also be brought to bear on certain specific aspects of the revision. Therefore, I will limit my comments on these special points although my brevity should by no means suggest anything short of the strongest support of these provisions of S. 1006.

I would like to emphasize that our association considers the increase of the statutory royalty for recordings long overdue and particularly the need for this revision as it concerns recordings of extended works which, on long-playing records, can today be reproduced in their entirety on a single side.

Our association also considers the present jukebox exemption immoral and would like to point out that while most of the music played is popular music, nevertheless the performing rights organizations distribute to the serious composer a larger proportion than his strictly prorated share of the royalties they collect, so that some part of whatever monies are collected from jukeboxes will, on the basis of established practices, be distributed to composers of concert music.

There is a provision of the bill which, although it has no effect on music, I feel must be mentioned. That is the manufacturing clause. Unlike books, music by American composers printed abroad may be imported without restriction and without endangering the copyright and subject only to the payment of the established duty. Yet the total quantity of such production is infinitesimal. It is perhaps 100th of one percent of all music printed for American publishers. If foreign manufacture of unrestricted publications is so completely inconsequential, I think that it follows that such restrictions are equally meaningless in relation to books and that such a provision in a copyright law protects no one and serves no useful purpose. It is, however, damaging in that, although not realistically protecting printers, it may threaten the copyrights of American authors. I mentioned earlier that some American composers were formerly published in Europe, and some of them still are. If there were a manufacturing clause applicable to music, though it would be completely inconsequential for printers, it might destroy or invalidate the copyrights of all these composers.

It was with great satisfaction that the world of music noted the recent passage of the Arts and Humanities Endowment Bill by the Senate. This bill indicates, more than any other of the many manifestations of America's cultural explosion, the commitment which the United States has come to acknowledge toward the arts. I submit, gentlemen, with all deference, that the growth of our national culture through any of the stimulation presently being so vigorously developed will, of necessity, be shallow unless the roots of our national creativity are encouraged. The deepening and strengthening of these roots must be the aim and will be the consequence of a strong and enlightened copyright law. Thank you.



PERFORMING ARTS— PROBLEMS AND PROSPECTS" (1965) Patricia M. Baillargeon, former assistant to Mrs. Eleanor Roosevelt; board

member, Seattle Repertory Theater and Seattle Youth Symphony; Seattle. Walker L. Cisler, chairman of the board, Detroit Edison Company; director,

Detroit Symphony Orchestra ; Detroit. Kenneth N. Dayton, vice president, Daytons; director and past president,

Minnesota Orchestral Association; Minneapolis. T. Keith Glennan, president, Case Institute of Technology ; Cleveland. Samuel B. Gould, president, State University of New York; former president,

Educational Broadcasting Corporation; Albany. William B. Hartsfield, mayor emeritus of Atlanta; trustee, Atlanta Symphony

Orchestra and Atlanta Music Festival Association; Atlanta. August Heckscher, director, Twentieth Century Fund; former special consultant

on the arts to President Kennedy; trustee, National Repertory Theater Foundation ; New York.

Margaret Hickey, senior editor, public affairs, Ladies Home Journal; St. Louis. Norris Houghton, chairman, Department of Drama, Vassar College; co-founder,

Phoenix Theater; New York. Devereux C. Josephs, former chairman of the board, New York Life Insurance

Company; vice chairman of the board, Lincoln Center for the Performing Arts; trustee, Metropolitan Museum of Art and New York Public Library ;

New York. Abbott Kaplan, director, University of California Extension, Los Angeles ;

chairman of the board, Theater Group; chairman, California Arts Commission;

Los Angeles.
Dexter M. Keezer, economic advisor, McGraw-Hill, Inc. ; New York.
Louis Kronenberger, professor of theater arts, Brandeis University; member,

National Institute of Arts and Letters; Waltham, Massachusetts.
Warner Lawson, dean, College of Fine Arts, Howard University; conductor,

Howard University choirs; member, advisory committee on the arts, State
Department, and advisory committee, John F. Kennedy Center for the Per-

forming Arts; Washington, D.C. John H. MacFadyen, architect, MacFadyen and Knowles; former executive

director, New York State Council on the Arts ; New York. Stanley Marcus, president, Neiman-Marcus; director, Community Arts Fund

of Dallas, Dallas Symphony Orchestra, and Dallas Theater Center; Dallas. Henry Allen Moe, president and chairman of the board, New York State

Historical Association; preesident, American Philosophical Society; New

York, James F. Oates, Jr., chairman of the board and chief executive officer, Equitable

Life Assurance Society; trustee, American Museum of Natural History ; New

York. Perry T. Rathbone, director, Boston Museum of Fine Arts; trustee, New

England Conservatory of Music and Boston Arts Festival; Boston. Oliver Rea, managing director, Minnesota Theater Company Foundation, Tyrone

Guthrie Theater; president, Theater Communications Group, Inc.; Minneapolis. Joseph Verner Reed, Sr., chairman of the board and executive producer, American

Shakespeare Festival Theater and Academy (Stratford, Connecticut); New

York. John D. Rockefeller 3rd, chairman of the panel; chairman of the board, Lincoln

Center for the Performing Arts and Rockefeller Foundation; New York Samuel R. Rosenbaum, trustee, Recording Industries Music Performance Trust

Funds; member, board of directors, Philadelphia Orchestra Association; Phil.

adelphia. Emile H. Serposs, director, Division of Music, Chicago Public Schools; member,

board of directors, Music Educators National Conference; Chicago. Charles M. Spofford, partner, Davis Polk Wardwell Sunderland and Kiendl; di

rector and chairman, executive committee, Metropolitan Opera Association; vice chairman of the board and chairman of the executive committee, Lincoln

Center for the Performing Arts, New York. Frank Stant, president, Columbia Broadcasting System; member, board of di

rectors, Lincoln Center for the Performing Arts, New York. James A. Suffridge, international president, Retail Clerks International Asso

ciation; Washington, D.C. Helen M. Thompson, executive vice president, American Symphony Orchestra

League; member, National Music Council and National Council on the Arts and

Government; Vienna, Virginia. Frazar B. Wilde, chairman of the board, Connecticut General Life Insurance

Company; Hartford. Harold Lionel Zellerbach, chairman, executive committee, Crown Zellerbach Cor

poration; president, San Francisco Art Commission; director, San Francisco Ballet Guild ; trustee, California Legion of Honor Art Museum ; San Francisco.

Senator MCCLELLAN. Well, thank you, sir. I am sure that the subcommittee and the full committee will undertake to examine this record with a view to informing itself in trying to arrive at legislation or revision of statutes which will be equitable and fair to all. We hope to do that. That will be our purpose anyway.

Mr. Feist. I am sure you will accomplish that, sir.

Senator McCLELLAN. I wish to thank all the witnesses who have appeared, especially when I was presiding at these hearings, because they have been very cooperative and each one has undertaken to present his point of view with due logic and persuasion in a spirit and effort to be helpful to the committee.

Mr. BRENNAN. Mr. Chairman, Mr. Bresnahan could not return this morning, so with the permission of the subcommittee, I would like to insert his prepared statement in the record.

Senator MCCLELLAN. His statement will be inserted in the record at this point.

(The prepared statement of Mr. Bresnahan follows:) STATEMENT OF JOHN A. BRESNAHAN ON BEHALF OF PRINTING INDUSTRIES OF


My name is John A. Bresnahan. I am a member of the law firm of Bresnahau, Eberly & Wilkinson, with offices in the Tower Building, 1405 K. Street, N.W., Washington, D. C., and I am appearing as General Counsel to the Printing Industries of America, Inc., with offices at 20 Chevy Chase Circle, N. W., Washington, D. C.

Printing Industries of America, Inc., is a national trade association representing some 50 affiliated local and regional associations and some 6,000 firms engaged in the printing and allied industries in the United States. Its membership represents printing businesses of all sizes, from among the largest to among the smallest. The printing industry is recognized to be an industry of small businesses.

While Printing Industries of America, Inc., is interested in several phases of the proposed amendments to the Copyright Law, my remarks will be directed primarily to Section 301—“Pre-emption with respect to other laws."

Before discussing the effect that proposed Section 301 will have on the printing industry, it seems appropriate to inform the Committee of practices within the industry and to show the Committee samples of the items which will be under discussion.

It is a common practice in the printing industry for the printer to design and prepare preliminary copy for printed matter which a customer or a prospective customer may need, or which the printer believes he may need. Some of this material is prepared at the direct suggestion of a customer or prospective customer, some may be prepared on a purely speculative basis.

Basically, I suppose you can call this preliminary copy a graphic illustration of an idea. Whether it be an item as small as a business card or as large as a counter display, whether it be a menu for a ceremonial dinner, a corporation's report to its stockholders, or a counter display for a well known cosmetic, the procedures are essentially the same.

The printer conceives the idea, preliminary sketches are made for the illustrations, space for copy is indicated, and a rough dummy is made up in a manner which will give the customer, or prospective customer, a good picture of the finished product. This material is prepared by artists and others on the printer's staff, or, if it be a small printer, by outside artists. In either event it requires an investment in time and money by the printer.

It has been recognized in the printing industry for many years, and it is so reflected in the trade customs of the industry, that such preliminary sketches, designs, dummies, and copy are the property of the printer until the customer, or prospective customer, purchases the job from the printer, at which time all rights and all title to the design and copy pass to the customer.

Like any other business, the printing industry is faced with the problem of unprincipled competitors and unprincipled customers and prospective customers, and all too frequently an unprincipled customer or prospective customer will take the preliminary design and copy prepared by one printer and have the job printed by another printer for a price which will not include the cost of the initial preparatory work done by the originating printer. This is known in the trade as "pirating.” In such cases the offended printer has been able to obtain relief and redress under the doctrine of common law copyright in the nearest available local court.

Here are some examples of the types of material that we are talking about. You will note the preliminary rough character of these exhibits and particularly note the fact that in each case there exists only one original. The making of copies would involve considerable inconvenience and cost to the originators of these dummies.

For the purpose of what I am next going to say, I would like to assume that sketches, designs, dummies and copy are covered by Sections 102 and 103 of the proposed legislation. This matter is dealt with in more detail in the attached appendix.

Section 301 provides that on and after January 1, 1967, all rights in the nature of copyright in works that come within the subject matter of copyright as speci: fied by Sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed by the proposed copyright law and that, thereafter, no person is entitled to copyright, or any equivalent legal or equitable right in any such work under the common law or statutes of any State.

There are some very practical problems involved which affect both the printer and the Copyright Office.

Currently the printer prepares only one copy of the sketch or dummy. If he is covered by the Copyright Law he will be required to prepare another copy for the Copyright Office (or maybe two copies).

If the printer is required to register his copyright to obtain protection under the Copyright Law, under Section 401 he will be required to deposit one or two copies with the Copyright Office.

It is conceivable that the requirement to deposit such copies would soon require the Copyright Office to obtain more storage space to accommodate the vast quality of material that will be sent to them.

Such material, once the job has been sold or rejected, has no further value, literary, artistic, or otherwise.

Coming under the new copyright law and being deprived of relief in a local court, the printer—if he did register his piece by sending a copy to the Copyright Office, would have to undergo the cost of prosecuting the case of infringement in a federal court. Such courts might in many cases be far removed from the printer's place of business and both the costs and inconvenience to the printer would be much greater than if he enforced his common law rights in local court. Since the large majority of printing firms in the United States are relatively small they will find it difficult to assume this additional financial expense.

It is our recommendation that the problem be resolved by a further exception to Section 301 (a), to be included as item (4) to subsection (b), as follows:

(4) preliminary sketches, drawings, designs, layouts, dummies and copy prepared in a preliminary form as part of a selling effort to induce the purchase of the finished product.”

The attached Appendix relates to questions within the proposed legislation dealing with the coverage of sketches, drawings, designs, etc. by the proposed legislation.



Since the general revision of the Copyright Law first came under discussion within the printing industry there has been substantial disagreement as to whether sketches, copy, dummies and preparatory work prepared by a printer for exhibit to a prospective customer as part of a sales effort, comes within the “works of authorship” entitled to copyright protection under Section 102.

In the language of the first paragraph of Section 102, with the exception of the last sentence, it would seem that the items under discussion are subject to copy. right protection. However, when you read the last sentence and the seven categories enumerated thereunder, it would seem that the items under discussion are not included in the copyright protection, although they may be included in Section 5 of 102, which reads: “(5) pictorial, graphic, and sculptural works"

Section 101 of the proposed amendment defines “Pictorial, graphic, and sculptural works” as including two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, plans, diagrams, and models.

Section 103 does not pertain to the items under discussion.

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