opportunity to bargain, collectively or otherwise, for rights, as they effectively have done, as well as permit the employer or commissioner of the work to protect himself by contract against competitive uses of such bargained away rights. The foregoing was the compromise reasonably evolved from the travail of these discussions, as indicated by the Register and we would trust that no basic departure will be made therefrom. K. Ameliorating Rigidities of the Present Notice System We have urged, and approve the relaxation by H.R. 4347 of the present rigid requirements of the copyright notice system. [However, as indicated in “Q” of III below, we are pointing out that certain of these provisions, especially as to the effect of omission of notice on so-called innocent infringers, require clarification and amendment.] L. Civil Remedies We approve the retention in H.R. 4347, of the principles of the present system of injunctive, seizure, and damage remedies, the clarification of some present ambiguities as to profits and actual damages, and the changes in the ceiling for statutory damages. [We have some small clarifying suggestions, as indicated in "T" of III below, as to reducing minimum statutory damages from $250 to $100 in the case of some so-called innocent infringements. We also have a clarifying suggestion as to the rules for seizure and impounding of infringing copies and articles in "S" of III below.] III RESPECTS IN WHICH AMENDMENTS OR We have previously indicated that, appropriately appreciating its basic conceptual principles, its fine organization, and many well laid out provisions, H.R. 4347 is concededly not a perfect instrument now ready for passage. There are still some important substantive respects, in so far as motion pictures are concerned, where amendment is vitally required, as well as a number of instances, primarily of a housekeeping nature, where clarification is needed. Ambiguity in a statute such as this is an invitation to future disputes, clouds on title, litigation and loss, and should be avoided where possible. The following are the respects which we see at this time as requiring amendment and clarification. The same will be taken up substantially in the order of the sections of the bill rather than in any order of relative importance. A. Section 101-Clarifying the Definition of "Derivative Motion pictures are original works entitled to copyright on their own account. Insofar, however, as they utilize literary, dramatic, musical or artistic source materials, which the producing author of the motion picture may either create itself through its employees, or purchase from other authors or copyright owners for adaptation into the motion picture, the original motion picture, except in the case perhaps of films such as newsreels and travelogues, is also a derivative work. The importance of the definition of "derivative work" is of vital concern to motion pictures. It is especially important in the sense that one of the compromise features presented to motion picture interests toward making the objectionable "recapture" provision tolerable, is that in the event the recapture option is exercised by the author (or his widow and children) of an assigned work for motion picture adaptation, the owner of the motion picture, because it is a derivative work, could nevertheless continue to exploit the motion picture already made under such assigned rights for the full term granted, despite any curtailment thereof by recapture, but without any further right after recapture to re-make the picture. Accordingly, the following points are made in respect of this important definition of "derivative works": 1. Derivative works (and recapture)—A motion picture is usually a combination in one work of a number of other works from which derived. The definition of motion picture in H.R. 4347 refers to its series of images, together with any accompanying sound. The definitions of phonorecords and sound recordings expressly provide that they are not intended to include the sound accompanying any motion picture. A typical motion picture may be based on a foreign novel or biography which became in turn a stage or television play, a musical play, a screen treatment, a screen play, another screen play, and finally a motion picture in various languages. Much of this transformation or adaptation is reflected in the images of the film, and a very substantial part in the synchronized dialogue and other sounds recorded on the accompanying sound track. In addition, there may be recorded music which with the images becomes a part of the dramatic structure, as when the performers play or sing the music while acting the characterizations involved. There is ordinarily much incidental wholly background music, with contributes to mood and dramatic effects without the audience necessarily being conscious of the presence of such musical compositions. Certain of this music may be original background scores commissioned for the motion picture or written by employees on a work for hire basis, as to which there would be no problem in the connection below mentioned. The motion picture producer would be the original author thereof, under present law, as well as H.R. 4347. However, there may be one or many pre-existing musical compositions, for example, recorded as part of the mood background of a motion picture, and not reflected in the visual action, which are old or new musical compositions purchased from domestic or foreign sources, for the purpose of recording, synchronization and performance in the particular film as background music. It is important that it be made clear that the inclusion of such pre-existing purchased music in the background score, where not created as a work for hire, would be deemed a "derivative work." If not, then the authors of such musical compositions, or their surviving spouses, children and grandchildren, could recapture such recording synchronization, and performing grant of license, under Section 203 (b) (1) and Section 304 (c) (5) (A). They might enjoin further utilization of the motion picture in which such music is contained on the ground that film use of such music was not a "derivative work." Similar questions could be raised as to works other than music incorporated into the motion picture. This would involve very serious unfair consequences. We are reasonably sure that no such result, as above feared, was intended, or even foreseen. Copyrighted or copyrightable materials incorporated into the sound track, or the visual images of a motion picture, should clearly be deemed a derivative use. It would greatly relieve the forebodings raised by this question, to indicate that a work in the form of a motion picture is a derivative use of all the literary, dramatic, musical and artistic materials therein included, whether created separately by other authors, or not. The definition of "derivative work" in section 101 should contain a brief provision to the effect that utilization for motion picture presentation of one or more preexisting copyrightable works of any kind by inclusion in the visual images or sound track of a motion picture, shall be deemed to be a derivative version of any such pre-existing work. 2. Derivative works (individually and in combination)—The present definition of "derivative work" indicates that one, or even a group of pre-existing works, may ultimately become a single "derivative work" of one kind or another of the types illustrated in the definition. We think it should be indicated in the Committee Report that the converse, which is not specifically indicated in the definition, is also true, namely: that a single pre-existing work may in its ultimate derivative form itself be a combination of many of the derivative illustrations. For example, an original pre-existing biography of Napoleon in French may become a single "derivative work" in the form of a sound recording containing a musical play acted in English, and which embodies translation, fictionalization, dramatization, sound recording, etc. 3. Derivative works (and derivative intangible utilizations under Section 106[a]) -For the purpose of copyrightability on its own account, a "derivative work" must necessarily be expressed in some material object which will satisfy the constitutional requirement of being deemed a "writing." This is borne out by the definition (p. 2, lines 29-34), of when a work is "created." It is when it is fixed in a copy or phonorecord for the first time. This would imply that a "work" must be fixed in some tangible material as provided in the definitions of "copies" and "phonorecords." However, as to the exclusive rights given to a duly copyrighted work, such as the exclusive right to "prepare derivative works" under Section 106(a) (2), there is no requirement that any infringing derivative utilization must necessarily be expressed in the tangible form of material object (as would be the Constitutional requirement for its copyrightability). An infringing television or stage dramatization pre pared and executed in intangible choreographic or pantomimic form from a copyrighted non-dramatic story need never be expressed or fixed in written or recorded form on any material object. (Kalem Co. v. Harper, 222 U. S. 55, where it was held under the law prior to 1909, that the hundreds of theatre operators who unauthorizedly projected on their theatre screens the unauthorizedly made feature film BEN HUR, infringed the nondramatic copyrighted novel BEN HUR by unauthorizedly dramatizing the same in pantomime. These intangible screen pantomimic dramatizations made the defendant film producer, Kalem Co., liable as a contributory infringer.) If by the definition of "derivative work" there is intended solely the incorporeal creation, and not its fixation in a material object by way of a copy or phonorecord, then we have no difficulty with the use of "derivative works" in Section 106(a) (2) being deemed to include as well a species of intangible derivative infringement upon exclusive rights. Under such an interpretation, we would understand "derivative work" to include as well infringing derivative intangible utilizations which were never fixed into any material objects. These might be, for example, the above mentioned infringing pantomimic or choreographic dramatizations. This was law under the above Kalem case, even prior to the Act of 1909. We raised this question to the Register and note that his 1965 Supplementary Report states in effect (at p. 17) that since the definition of "derivative work" under section 101 requires no fixation in tangible form, derivative ballets, pantomimes, and impromptu unrecorded performances could violate the exclusive right. B. Section 101-Definition of "Joint Works" A "joint work" according to Section 101 is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. This definition may be an over-simplification. If author "A" or various authors have previously written, but not as works for hire, a musical composition, a background score, a screen treatment, or screen play, a biography, a novel, a play, or a musical play, with the intention and the understanding, in assigning and granting derivative motion picture rights to another author (motion |