that the Amendment is unnecessary as a matter of sound legislative policy. In particular, I hope that this Statement at least demonstrates that the words "as a part of a motion picture or other audiovisual work," should be retained in the present S101. definition of a work specially ordered or commissioned which may qualify as a "work made for hire" if the parties so agree in writing. October 1, 1982 Respectfully submitted, Richard Colby. Richard Colby Twentieth Century-Fox Film Corporation Box 900 Beverly Hills, CA 90213 Published Writings - Richard Colby 1. Duration of Copyright in the United States - Status of Assignments of Copyright Renewals The Billy Rose Case, 7 Bulletin of The Copyright Society of the U.S.A. 203 (1960); 32 Archiv Fur Urheber - Film - Funk Und Theaterrecht 1 (1960). 2. Legal Aspects of Motion Picture Production in Europe, 8 Bulletin of The Copyright Society of the U.S.A. 85 (1960). 3. An Historic "First" - Copyright Office Accepts Video Tape for Registration, 8 Bulletin of The Copyright Society of the U.S.A. 205 (1961). 4. Copyright Protection for Cinematographic Works Under the Universal Copyright Convention, 74 Le Droit d'Auteur 203 (1961); I Publishing, Entertainment, Advertising and Allied Fields Law Quarterly 271 (1961); Summary, XV UNESCO Copyright Bulletin 198, 238, 278 (1962); Abridged with a Forward and Comments by C.J. Bannon of the New South Wales Bar, 37 Australian Law Journal 20 (1963). 5. United States Copyright Renewals and French Authors, 33 Revue Internationale Du Droit D'Auteur 58 (1961). 6. Copyright Formalities and Copyright Revision, II Publishing, Entertainment, Advertising and Allied Fields Law Quarterly 275 (1962). 7. Copyright, in Grolier's Encyclopedia International. 8. Testimony, Committee of Consultants, Copyright Office, House Committee on the Judiciary, Copyright Law Revision, Part 3 at 278-281 (1963-64). 9. Some Essentials in Copyright Revision for Motion Pictures, Address to the 10. Book Review of Lindey's Entertainment Publishing and the Arts, 11 Bulletin of The Copyright Society of the U.S.A. 208 (1964). 11. International Copyright Protection, X New York Law Forum 45 (1964); 44 Revue 12. Music in Motion Pictures, The Business and Law of Music 67 (1965). 13. Daily Variety, Letter to the Editor, Video Tape and the Copyright Law, August 4, 1977; Weekly Variety August 10, 1977. 14. 1981 American Bar Association Committee Reports of the Section of Patent, Trademark and Copyright Law, Report Committee 307. on Authors, Subcommittee D 4 on Problems of Authors Under Existing Copyright Legislation 153-154. 1982 American Bar Association Committee Reports of the Section of Patent, Trademark and Copyright Law, Committee 307. on Authors, Subcommittee B on Employment for Hire and Joint Authorship, Richard Colby, Chairman. 15. 16. Work Made for Hire and United States Copyright Law, XVI UNESCO Copyright Bulletin (1982) [publication pending]. Senator MATHIAS. You refer to a potential loss of revenue from sequels and remakes. Mr. COLBY. Yes, sir. Senator MATHIAS. We have this problem recurring in another context, in relationship to a bill which is pending in this committee on video recorders, the Betamax bill. Senator Specter of Pennsylvania, who sits on this committee, has raised a question of whether that should go on in perpetuity, whether there should not be some point of time in which protection of video recording in that caseand I want to be clear that we are not talking about this bill but its analogous problem-that there should be some point of time when that sort of protection ceases. Do you see any relationship between that proposition and this one? Mr. COLBY. I do not, Senator, and I am not in a position to▬▬ Senator MATHIAS. I am not saying that I am in agreement with Senator Specter on that. But I just pointed out that that is a point of view that has been expressed here. Mr. COLBY. I understand, and I appreciate the question. I would think these problems can be considered separately. I am not equipped to speak to the other issue. But I would point out that in the present act there is a termination of rights provision applicable after a fixed period of years. That fixed period of years was arrived at after 15 of study and recommendation and ultimately the unanimous view of all concerned, including, I may say, the Authors League. Because of the pressure of time, I did not read a phrase setting forth the Authors League point of view in 1963 and 1965. I wonder if I might have perhaps 12 minutes to add what I will call the view of my other friends. Senator MATHIAS. Try and make it 1 minute. Senator MATHIAS. Speed up the sound track. Mr. COLBY. At the 1963 hearings at the Copyright Office, at which I had the pleasure of testifying, as did other gentlemen and ladies present, the Authors League said: I don't disagree that a motion picture is a work authored by a motion picture company. It is a composite work, and I would not even quarrel with a section that indulged in what I think is the natural presumption that the motion picture company is the author of it, a composite work in which the producer brings together the efforts of many creative skills and talents and merges them in a new work. Finally, at the 1965 hearings of the House Judiciary Committee, the Authors League said: These reforms-parenthetically I mean the exact language that is now in the Copyright Act-would meet the legitimate needs of authors, of publishers, and other copyrights users and of the educational and scientific communities. They would preserve the author's fundamental rights in his work, and they would more effectively serve the public interest in copyright, which is to-almost in constitutional language-stimulate progress in literature and the arts by securing sound copyright protection for authors. Thank you, Senator. Senator MATHIAS. Thank you, Mr. Colby. You referred to the 15year struggle on this point. Just a minute ago, I saw Mr. Ben Zelenko enter the room. He is a veteran of that 15-year struggle as the counsel to the great chairman of the House Judiciary Commit tee, the late Emanuel Celler. I was a very junior member of the House committee at that time. During the progress of that event, I was translated from the House to the Senate, which is a process which is traditionally known on Capitol Hill as raising the intellectual level of both bodies. Ben Zelenko's continuing interest is to be noted. Mr. COLBY. I am sure, sir, that Mr. Zelenko would make a contribution to the committee's understanding of the history. I well remember appearing many times before the committee and having the pleasure of the wise judgments of the committee as reported in the House report, which matches the Senate report, No. 94-473. Senator MATHIAS. Let me ask Mr. Bernstein this question. There has been some testimony here this morning that, even by proponents of the bill, S. 2044 as it is now written will not solve all the problems that the commissioned artists face. How do you think your industry would react to that feeling? Mr. BERNSTEIN. I am glad you asked that question, Senator. I was going to ask if I could talk to that. We have heard a lot of talk here today about creating atmospheres really for negotiating. Now, it is interesting that the people that have the strength have been saying all day today negotiate with us. I think the great advantage of S. 2044 is that it will create a better atmosphere for that kind of negotiation. We had a base stealer on the Los Angeles Dodgers some years ago by the name Maury Wills. Now, late in the season when he was going for a record, up in San Francisco they used to water down the base paths. Now, that is not a very, very good atmosphere in which to steal bases. I think the passage of S. 2044 would make a fairer atmosphere for that kind of negotiation to take place. I think in that sense it would be a great improvement. Senator MATHIAS. Do you think that there are any circumstances in which work made for hire is an appropriate basis for a commission? Mr. BERNSTEIN. I heard other people say it. I think that, if work made for hire were accompanied by classical elements of job security of a plan for advancement for the people who need advancement and had those kinds of protections, offered you those kinds of protections and opportunity for advancement and career building, yes, I think it certainly would be an atmosphere in which the employer in that case should have the advantage of the product of that person's work. Senator MATHIAS. But not in the empty marketplace swept by the cold winds of adversity? Mr. BERNSTEIN. Well, I really do feel that way because one of the concomitant things that happens, Senator, is that one of the effects, really, is also to take these music copyrights out of the free market as well. Senator MATHIAS. Mr. Colby, you seem to be anxious to add one last word to that. Mr. COLBY. No, not really, because I do not want to disagree with Mr. Elmer Bernstein, with whom we have very fond and lucrative, for both of us, arrangements. Mr. BERNSTEIN. True. Mr. COLBY. What I would point out is that, in contracts with composers, it is invariably the case that there is a schedule of royalties for all subsidiary and ancillary uses. For example, if sheet music is published, the rate, I think, is now at least 8 cents, and it is rising. In general, for all other rights, 50 percent of the revenue is paid to the composer regardless of stature. I mean the new, the young, the exciting composer on whom we take a chance because salary or flat payment is made for those services. Interestingly enough, in the music field many composers-although this does not apply, I believe, to Mr. Bernstein; but I am not asking for an answer to this-insist that they not be employees. They want to be furnished through corporations, for such benefits as they see, by being the employee of what I will call their own company. Senator MATHIAS. I heard you making that point. I understand that. And I think it is an interesting point as one of the practices in the trade. Let me just say in closing this panel that it is refreshing to have two witnesses here who agree at least that the problem is managing prosperity rather than dealing with adversity. That is an unusual experience for Congress in this particular moment in history. Mr. COLBY. Then Mr. Bernstein and I have contributed something. Senator MATHIAS. Yes, you brightened our day. Thank you, gentlemen. Mr. COLBY. Thank you again for the honor of being here. Senator MATHIAS. Let me say that in some respects this is a reunion for all of us who have worked a long time in the copyright field. One of those who is here is Bella Linden, who was in constant attendance in the long and protracted negotiations that led to the 1976 act. Out of her experience, I would just like to ask one question, and you can answer right from where you are. Ms. LINDEN. Perhaps my voice will carry better if I join these gentlemen physically at the table. Senator MATHIAS. Come join them just for a moment. I just had this one question, which goes back to the question of textbooks. Do you think that there ought to be any changes as the bill is now structured to accommodate specialized texts? I do not refer to instructional texts because I think that is covered in the various statements that are submitted to the committee. But what about the specialized texts? Ms. LINDEN. I am reminded that we are not here to pass the kind of general social legislation prohibiting independent contractors, which Ms. Brickman and others in their testimony appeared to urge. In other words, their intent is to abolish a concept of independent contractors in copyright law and urge that employee status be the only basis for the creation of certain kinds of works. I must also add as a foundation that I am unfortunately reminded that the same thing has occurred over the past 20-odd years, and they were odd years. The discussion always has been as though 10 men, or in this case 110 men and women, blind ones, were asked to describe an elephant. Each held on to the portion that they knew best and described it as the whole. The fact is that magazine publishing is not only the kind of magazine publishing that Time-Life does. The fact is that encyclopedia |