SIXTY-NINTH

ANNUAL REPORT OF THE REGISTER OF COPYR1GHT.S

FOR THE FISCAL YEAR ENDING JUNE 30, 1966

COPYRIGHT OFFICE THE LIBRARY OF CONGRESS IL.C. Card No. 10-36017

This report is reprinted from the Annual Report of the Libdnof Congreee for the fiscal year ending June 30,1966 Contents

THECOPYRIGHT OFFICE ...... 1 The Year's Copyright Business ...... 2 Official publications ...... 4 Copyright Contributions to the Library of Congress ...... 4 Administrative Developments ...... 4 Problems of Registrability ...... 5 Organizational Problems ...... 5 Notices of Intention To Use ...... : ... 5 Legislative Developments ...... 6 Judicial Developments ...... 8 Performing Rights and Community Antenna Systems ...... 8 Rights of Exhibition and Copying ...... 10 Author's "Moral Right" ...... 11 Subject Matter of Copyright ...... 13 Publication ...... 16 Notice of Copyright ...... 17 Copyright Registration ...... 19 Ownership. Assignment. and Renewal of Copyright ...... 21 Infringement and Remedies ...... 23 Other Judicial Developments ...... 26 International Developments ...... 28 Tables: International Copyright Relations of the United States as of December 31. 1966 ... 29 Registrations by Subject Matter Classes ...... 31 Schedule of Copyright Fees ...... 32 Number of Articles Deposited ...... 32 Number of Articles Transferred to Other Departments of the Library of Congress . . 33 Statement of Gross Cash Receipts. Yearly Fees. Number of Registrations. etc ..... 33 .mmary of Copyright Business. Fiscal Year 1966 ...... 34 .ications of the Copyright Office ...... 35 During consideration of the copyright revision bill Subcommittee No. 3 of the House Judiciary Committee met with Library oficials on February 24, 1966, in the Library's Wilson Room.

Sitting, left to right: Abraham L. Kaminstein, Register of Copyrights; Representative Henry P. Smith Ill; Representative Richard H. Poff; Representative Robert W. Kastenmeier, acting chairman of the subcommittee; Representative Herbert Tenzer; and L. Quincy Mumford, Librarian of Congress.

Standjng, left to right: George D. Cary, Deputy Register of Copyrights; A. A. Goldman, Copyright Ofice General Counsel; Allan D. Cors, Committee Counsel; John G. Lorenz, Deputy Librarian of Congress; Herbert Fuchs, Committee Counsel; and Barbara A. Ringer, Assistant Register of Copyrights. The Copyright Office

Report to the Librarian of Congress by the Register of Copyrights

HE CURRENT PROGRAM for general re- hearings was remarkably high. Conflicting vision of the copyright law made by positions were presented by the witnesses in a Tfar the greatest progress of its 11-year reasonable and constructive way, and their history during fiscal 1966. As the year be- statements were intelligent, germane, and un- gan, hearings on the copyright revision bill emotional. Nearly all expressed general ap- of 1965 (H.R. 4347, H.R. 5680, H.R. 6831, proval of the revision program and the bill and H.R. 6835, 89th Cong., 1st sess.) were itself and addressed their disagreements to under way before Subcommittee No. 3 of the specific provisions. The prevailing atmos- House Committee on the Judiciary. Between phere was reflected in the remarks of Repre- May 26, 1965, and September 2, 1965, a total sentative Richard H. Poff of Virginia, the of 22 days of public hearings were held with ranking minority member on the subcommit- 163 witnesses representing the widest spectrum tee, who said on the closing day of the of public and private interest in the emerging hearings : legislation presenting testimony. The massive record of these hearings ran to 1,930 pages Mr. Chairman, I am in my 13th year in the of printed text and included, in addition to Congress, and during the course of that time I the oral transcript, more than 150 written have been privileged to participate in many con- gressional investigations and hearings, some of which statements. have lasted for as long as 2 years. But I can say The yean of careful preparation that had candidly and honestly that this has been the most gone into the drafting of the bill paid sub- objective, and instructive, and constructive of any stantial dividends as the hearings progressed. hearing in which I have participated. One witness echoed the sentiments of many I think we are deeply indebted to all of the wit- of his fellows when he stated in his testimony: nesses who have approached their advocacy without ranoor and bitterness . . . . I do say that it has There has been no such comparable preparation for been most inspiring and stimulating to me, and I legislation in the history of world copyright-and would press the point only that all congressional I have in mind major countries long sophisticated hearings could be so dispassionate, and learned, and in this field . . . . I recall no such prior pre- so free of partisan bitterness. liminary preparations for the extensive 1932 and 1936 Congressional hearings on general revision in After the public hearings the Copyright Of- which I took an active part. fice helped the committee counsel edit the transcript. To make the huge printed record Although there were, to be sure, sharp con- more manageable and useful to the subcom- flicts on some of the major issues presented mittee and the public, the Office prepared, by the bill, the level of the testimony at the with assistance from the Library's Data Proc- 2 REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 essing Office in planning and programing hearings and the executive sessions was a the project on the computer, a complete sub- model of dedicated public service and states- ject and name index. This was the Copy- manship. An editorial in the August 23, right Office's first real experience in using 1965, issue of Publishers' Weekly summed up computer technology. The staff also pre- the prevailing sentiment when it said: "It's pared summaries of every statement, argu- a committee which can restore one's faith in ment, and proposal that had been made. the process of representative democratic gov- Working closely with the committee coun- ernment." sel, the Office then divided tfre entire corpus The Senate Judiciary Subcommittee, under of the hearings into 10 general areas: sub- the chairmanship of Senator John L. Mc- ject matter,of copyright, ownership, duration, Clellan of Arkansas, opened hearings on the notice and registration, manufacturing and revision bill in August 1965 but delayed re- importation requirements, community antenna suming them during the fiscal year, partly systems and other secondary transmissions, because of the intense copyright activity in jukebox performances, compulsory license for the House subcommittee. phonorecords, educational copying and fair On October 12, after the end of fiscal 1966, use, and educational broadcasting and other the full House Judiciary Committee reported performing rights. Each subject was then the bill as amended (H. Rept. 2237, 89th divided into subtopics and under each of these Cong., 2d sess.). It is hoped that the was listed every issue raised by the hearings. amended bill will be reintroduced and acted Thus, the subcommittee was able to consider upon in the 90th Congress, possibly before the them in context, to weight the arguments for end of calendar 1967. and against each one, and to arrive at decisions. Meeting usually twice a week from Febru- The Year's Copyright Business ary through September 1966, the House Judi- ciary Subcommittee held 51 executive sessions, Although it would be inconceivable for any many of them lasting 2 hours or more, which member of the operating divisions of the Copy- were attended by representatives of the Copy- right Office to regard fiscal year 1966 as a right Office. One unprecedented session, on relaxing one, statistics show that, for the first February 24, 1966, was held at the Library time in 14 years, the total number of registra- of Congress after the subcommittee toured the tions actually decreased. As compared with Copyright Office and was greeted by the Li- 293,617 registrations in all classes of material brarian and Deputy Librarian. in fiscal 1965, the 1966 total was 286,866, an Examining each issue and then redrafting overall decrease of 2.3 percent. With the ex- the pertinent section of the bill, the committee ception of books, lectures, prints, and re- maintained an informal, bipartisan atmos- newals, each of which increased, registration~ phere in its executive sessions. The members declined throughout the whole range of copy- deserve the gratitude not only of those in- rightable material. terested in copyright law revision but also of Foreign registrations increased by nearly 2 the public at large for their enthusiasm, in- percent, and renewals, which follo\v a differ- tellectual commitment, and hard work on a ent statistical pattern from other classes of bill that will have lasting value for generations material, gained by over 8 percent despite a to come. A special appreciation should be 100-percent increase in renewal fees. The given to the acting chairinan of the subcom- number of copyright registrations for artistic mittee, Representative Robert W. Kasten- designs embodied in or applied to "useful meier of Wisconsin, whose conduct of the articles" once again declined, from 6,500 in REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 3

1965 to 5,900 in 1966, a decrease of approxi- day, November 22, 1965. There were also mately 10 percent. The percentage of ap- the anticipated cases of short-fee deposits im- plications requiring correspondence remained mediately after the effective date. On the about constant: 11.4 percent of the claims whole, however, the changeover was relatively were passed for I: cistration after correspond- smooth, and within a few weeks nearly 90 per- ence and 2.6 percc~itwere rejected. cent of the applications were being received The passage of the "fee bill," Public Lgw with the proper fee. The lessons learned will 83-297, effective November 26, 1965, was be valuable when the Office is faced with the tl~eoverriding factor in the demands made much larger transitional problems created by on the Office's operating personnel during the general revision of the copyright law. fiscal year. The act increased statutory regis- The workload in every operation of the tration fees (with the exception of those for Service Division increased significantly over commercial prints and labels) from $4 to $6, 1965. During the fiscal year, 336,525 pieces fees for renewal registrations from $2 to $4, of incoming and 370,135 pieces of outgoing and reference search fees from $3 to $5 an mail were processed, representing a 10-percent hour. The fees charged for certifications, for increase in mail handled. In addition, total recording assignments and related documents, earned fees were $1,470,249, an all-time rec- and for recording notices of use were similarly ord and 22 percent more than the previous increased. These increases, the first since year. 1948, were necessary to narrow the substantial Reference searches were made for 104;000 gap between receipts and expenses and to titles, an increase of 23 percent over 1965. make the Office more nearly financially self- Telephone inquiries rose by 10 percent to sustaining. 19,000, and mail inquiries by 13 percent to Whatever the reasons-possibly the current 16,000. The Reference Division also carried state of authorship, publishing, and the econ- on extensive research projects: a cumulative omy-the predicted 10- or 15-percent decrease report on the importation of English-language in registrations, based on the statistical effects books in cooperation with the Bureau of Cus- of the 1948 fee increase, proved to be just over toms; a compilation of U.S. copyright deci- 2 percent. sions before 1909; a collection of treaties, proc- By careful advance planning the change- lamations, and other international materials over was accomplished with little of the up- relating to copyright involving the United heaval that characterized the last fee increase States; and substantial additions to the ex- nearly 20 years earlier. In the month be- panding and valuable Biobibliographic File. tween enactment and the effective date of the Even though total registrations decreased increase, the Reference Division sent notifica- slightly during 1966, the Cataloging Division tions of the new fee schedule to over 35,000 reproduced and distributed more than 1.8 mil- persons, arranged for a press release and for lion cards, representing an increase of 100,000 publicity in various media, and obtained the over 1965. In addition to the 673,000 sent cooperation of major author and publisher directly to the Copyright Card Catalog, organizations and bar associations in notifying 846,000 cards went into the preparation of their members of the change. Copyright ap- copy. for the printed Catalog and 81,000 cards plication forms and informational circulars were sent to other catalogs of the Library of were revised to accord with the new fees. Congress and 217,000 to subscribers to the As was expected, the number of applica- Cooperative Card Service. tions received rose substantially just before the The record set in March 1965 for registra- increase, and 3,774 pieces of mail, an all-time tions in a single month stood for only one record, were received in the Office on Mon- year. March 1966 was the largest month in 4 REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 the history of the Copyright Office, with a for official and public use, this is a valuable total of 30,556 registrations, 2 percent more record of decisions reported in Federal and than the previous record. State courts involving copyright and related cases in the field of intellectual property.

Official Publications Copyright Contributions to the With the publication in September 1965 of Library of Congress part 5 in the Copyright Law Revision series prepared by the Copyright Office and issued While 457,000 articles were deposited for by the House Committee on the Judiciary, the registration in the Copyright Office during the prelegislative history of the revision program fiscal year, 265,000 articles were transferred was completed. Part 5 contains the discus- to the collections of the Library of Congress sions and comments on H.R. 11947, the 1964 or were offered to other libraries through the revision bill. . The series begins with the Reg- Exchange and Gift Division. Among the ister's Report of July 1961 and concludes with materials that went to enrich the Library's his Supplementary Report, issued in May 1965 collections were some that had been deposited as part 6. in earlier years. For example, 387 scripts by The major publication of the year was the Fred Allen and 23 dramas by Maxwell Ander- 3-volume record of the Hearings Before Sub- son were transferred to the Manuscript Divi- committee No. 3 of the Committee on the sion, and the original score of Camelot, the judiciary, House of Representatives, 89th Lerner and Loewe musical, was transferred to Congress, 1st Session, on H.R. 4347, H.R. the Music Division. The Copyright Office is 5680, H.R. 6831, H.R. 6835, Bills for the Gen- making an effort to retain a record copy of as eral Revision of the Copyright Law, Title 17 much deposited material as possible. of the United States Code. This is the com- plete transcription of the testimony of all wit- nesses, together with additional statements and exhibits, that make up the record of the Administrative Developments 22 days of hearings held by the subcommittee between May and September 1965. Although the revision of the copyright law Staffing and production difficulties con- and the implementation of thc fee increase tinued to delay publication of the official left little time for planning or development in Catalog' of Copyright Entries. Ten issues other major areas, fiscal 1966 may well be a were received'from the Government Printing ,crossroads in the administrative history of the Office and nine others were either complete Office. A series of retirements affected sev- and ready for printing or in various stages of eral top-level positions and brought about a compilation. While catalog production dur- reorganization in the administrative structure ing the year had not increased appreciably, of the Copyright Office that was still in proc- more issues were actually ready or in the ess as the year ended. process of compilation than at the end of Moreover, during 1966 the Office decided fiscal 1965. to automate many of its operations as soon as Decisions of the United States Courts In- possible. Faced with a constantly growing volving Copyright, 1963-1964, compiled and workload and with increasing problems of re- edited by Benjamin W. Rudd of the Copy- cruiting and holding qualified personnel, the right Office, was issued as the Office's Bulletin Copyright Office must obviously use machines No. 34. The 18th in a series of publications for the repetitive tasks they can do better and REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 5 faster than can human beings. In spite of more effectively with the tremendous physical the obvious need for automatic data process- bulk of the material involved and to distribute ing, the volume of work is so large that even the workload more equitably the Examining small changes lead to serious disruptions. Division transferred responsibility for domes- Furthennore, the general revision of thc copy- tic periodicals from the Book Section to the right law will probably make radical changes Arts Section in March 1966. The examina- in the existing system. The changeover can- tion of periodicals has long been a special not be delayed, however, and the necessary problem, and experiments in new techniques plans for it were being made at the close of which show some promise for the future were the fiscal year. attempted during the year. The problems of inadequate work and stor- Problems of Registrability age space continue to beset the Office, with no immediate relief in sight. The General Serv- The growing pains of the computer indus- ices Administration is providing storage for try continued to be felt by the Copyright Office deposits in a Federal Records Center, allevi- during the year. Proceeding under ground ating some of thc problems. It is obvious, rules established in 1964, the Office accepted however, that between now and the opening 36 claims to copyright in computer programs of the Madison Memorial Library in the during fiscal 1966. This total, while micro- 1970's the need for space will be a constant scopic in comparison with the number of reg- and urgent problem in the Copyright Office. istrations made for other forms of expression, represents many hours of discussions and is Notices of Intention To Use more than double last year's figure. There are indications of a growing awareness within Under the present law, a producer who the computer industry of the possibilities af- wishes to issue records of a copyrighted mu- forded by copyright protection for programs sical composition under the "compulsory li- in which many millions of dollars have been censing" provisions of section 1(e) is obliged invested. to send a "notice of intention to use" to the Another challenging problem facing the copyright owner and a copy of the notice to Examining Division is the copyrightability of the Copyright Office. The 1909 statute was what is sometimes called "aleatory music" silent as to the Office's obligations with re- or "music of chance." In broad terms, such spect to these copies, and no fee was provided works consist of general instructions to per- for recording them. As a result, practices formers which, when followed, result in sounds with respect to rccordkeeping and indexing having accidental pitch and rhythm, if any. of "notices of intention" have varied from Regarded by some as a hoax and by others time to time over the past 57 years. as a major art form, these works raise ques- The new fee bill, effective November 26, tions as to whether and when they can bc re- 1965, established a fee for recording a "no- garded as "music," and in some cases as to tice of intention to use." This change not whether they constitute the "writing of an only meant the imposition of new accounting author." procedures, but it prompted the Reference Division to survey the "notice of intention" Organizational Problems records from 1909 to 1965. A total of 9,461 documents, covrring 41,443 titles, had been The merger of the examination of books filed during this period. Thcy were num- and periodicals in the Rook Section several bered in two series, the first from 1909 through years ago resulted in a large section which June 30, 1941, covering numbers 1 through proved administratively unwieldy. To cope 7413, and the second from July 1, 1941, 6 REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6

through November 23, 1965, covering num- tion of ornamental designs, S. 1237, were held bers 1 through 2921. The condition of these before the Senate Judiciary Subcommittee on records suggests the desirability of charging Patents, Trademarks, and Copyrights on July a fee for a recordkeeping activity to ensure 28, 1965, and the Deputy Register of Copy- proper controls and preservation. rights, George D. Cary, was one of the wit- "Notices of intention to use" filed after No- nesses strongly favoring the legislation. The vember 26, 1965, will be numbered in a new bill was substantially similar to design meas- series and will be maintained as official Copy- ures considered by the 86th, 87th, and 88th right Office records. Earlier documents are Congresses and passed twice before by the being prepared for microfilming. When com- Senate. Shortly after the end of the fiscal pleted, the microfilm record will be retained year the bill, with an important amendment in the Copyright Office and the original in- excluding designs for wearing apparel from struments will be stored in a Federal Records its scope, was reported favorably by the Senate Center. Judiciary Committee and was passed by the full Senate. An additional jukebox bill, H.R. 15004, Legislative Developments identical to measures introduced by Repre- sentatives Emanuel Celler (H.R. 18) and In addition to the program for copyright James C. Corman (H.R. 2793) in the 1st ses- law revision and the fee increase, already dis- sion of the 89th Congress, was introduced by cussed, there were several other significant Representative Thomas M. Rees on May 11, legislative activities during the year. The first 1966. On May 5, 1966, Representative was the enactment of Public Law 89-142, Theodore Kupfennan of New York, a leading signed by the President on August 28, 1965, expert on copyright law, introduced H.R. which extended until December 31, 1967, the 14903, a bill to accord capital gains treatment duration of subsisting second-term copyrights to the taxation of income from transfers of that would otherwise expire before that date. copyrights and literary property. H.R. This measure was in itself an extension of a 13446, a bill with copyright overtones, was 1962 enactment (Public Law 87-668), which introduced by Representative Jonathan B. extended until December 31, 1965, copyright Bingham on March 9, 1966; it was aimed at protection in cases where renewal terms would establishment of a National Registry of Art otherwise have expired between September "for the purpose of maintaining and adminis- 19, 1962, and December 31, 1965. As a tering records relating to the origin, transfer, result of these two interim laws all subsisting and ownership of works of art." The prin- copyrights of which the 56-year total of the cipal office of the Director was to be in New original and renewal terms would have ex- York City, but with a repository under the pired between September 19, 1962, and Smithsonian Institution. December 31, 1967, are continued until the In June 1966 at the request of the Secretary latter date. It should be noted that the ex- of Commerce a bill was introduced in both tension applies only to copyrights previously Houses (H.R. 15638 by Representative George renewed in which the second term would P. Miller and S. 35 17 by Senator Warren G. otherwise expire and not to copyrights in their Magnuson) "to provide for the collection, first 28-year term. Also the act does not af- compilation, critical evaluation, publication, fect in any way the time limits for renewal and sale of standard reference data." Known registration. as the Standard Reference Data Act, this Hearings under the acting chairmanship of measure was intended to set up a Government Senator Philip A. Hart on the bill for protec- clearinghouse for technical scientific informa- REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 7 tion and contained provisions prohibiting any enacted on October 8, 1966 (Public Law person, without written authorization, from 89-634). copying any data compilation bearing a speci- In March and April 1966 the House-Com- fied symbol. Hearings on the bill were held mittee on Interstate and Foreign Commerce, before the House Committee on Science and under the chairmanship of Representative Astronautics on the last 3 days of the fiscal Harley 0. Staggers, held hearings on three year. The statement of Acting Librarian of bills (H.R. 12914, H.R. 13286, and H.R. Congress, John G. Lorenz, took the position 14201, 89th Cong., 2d sess.) dealing with the that the bill seemed to create the equivalent authority of the Federal Communications of a copyright and thus raised serious problems Commission to regulate the operation of com- under the Constitution and the present copy- munity antenna television systems. The rec- right statute's prohibition against copyright in ord of these hearings contains testimony bear- Government publications; the statenlent con- ing on the relationship between copyright and cluded that, if Congress finds exceptional cir- communications law in this field. On May 5, cuinstances justifying the recognition of 1966, Representative Robert W. Kastenmeier, exclr~siverights in this particular instance, it as acting chairman of the House Judiciary should be accon~plishedwithin the framework Subcommittee then considering the revision of and limitations of the copyright law. After the copyright law, sent a letter to Chairman the end of the fiscal year an amended bill Staggers outlining certain proposed amend- ( I-I.R. 16897) specifically according statutory ments in the revision bill with respect to com- copyright protection to data compilations was munity antenna systems which had direct passed by the House of Representatives. bearing on the problem facing the Commerce On June 6 and 7, 1966, the House Ways Committee. This letter was printed in the and Means Committee held public hearings Congressional Record on May 9, 1966, and on I-I.R. 8664, H.R. 15271, and H.J. Res. 688, also in the record of the CATV hearings. On bills to implement the Agreement on the Im- June 17, 1966, H.R. 13286, a bill specifically portation of Educational, Scientific, and Cul- authorizing regulation of commu.nity antennh tural Materials (the Florence Agreement of systems, was reported favorably by the House 1950) and the Agreement for Facilitating the Commerce Committee (H. Rept. 1635, 89th International Circulation of Visual and Audi- Cong., 2d sess.) . tory Materials of an Educational, Scientific, The 1966 regular session of the General and Cultural Character (the Beirut Agree- Assembly of the State of New York enacted ment of 1948). The Librarian of Congress four statutes of considerable interest and im- testified during the public hearings, and the portance in the development of the copyright Committee heard testimony from the Deputy law. Chapter 668, effective September 1, Register of Copyrights c111ringlater executive 1966, reverses the common law doctrine estab- sessions on the measures. The record of the lished in the famous case of Pushman v. New hearings includes a letter from the Register York Graphic Society, Inc., 287 N.Y. 302 of Copyrights explaining the relationship be- (N.Y. Ct. App. 1942), under which an artist tween the copyright law, particularly its man- is presumed to have transferred his reproduc- ufacturing requirement, and the Florence tion rights unless he expressly reserves them Agreement and indicating the adverse effect at the time he sells the painting, statue, or of delayed implementation on U.S. copyright other unique copy in which his work of art is relations. H.R. 8664, dealing with the embodied. Under the new act, whenever an Florence Agreement, was enacted on October artist or his heirs transfer a "work of fine art," 14, 1966 (Public Law 89-65 1 ) , and H.J. Res. the "right of reproduction" is "reserved to the 688, concerning the Beirut Agreement, was grantor" unless specifically transferred in writ- 8 REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6

ing. Chapters 982 and 988 deal with the un- who, on determining that the parties were not authorized duplication of sound recordings, prepared for summary judgment proceedings, making it a misdemeanor, except in the case gave them 6 months within which to file a of ephemeral recording made for broadcast- certificate of readiness. ing, for anyone to transfer sounds from one record to another with the intent to sell rec- Performing Rights and Community Antenna ords or use them for profit, or to sell records Systems with knowledge that ;hey had been illegally One-of the most eagerly awaited and im- dubbed, "without the consent of the owner"; portant copyright decisions in recent years was the "owner" is defined as "the person who handed down near the end of the year, on owns the master phonograph record . . . or May 23, 1966 : Judge Herlands' landmark other device used for reproducing recorded decision in United Artists Television, Inc. V. sounds." Chapter 983 deals with the labeling Fortnightly Corp., 255 F. Supp. 177 of phonograph records and, in addition to pro- (S.D.N.Y. 1966), involving the basic question hibiting the misleading use of the term "stereo- of whether a "community antenna television phonic," makes it a misdemeanor to distribute system," a system," as it is called, records "without the name and address of the "CATV infringes the exclusive right of public perform- manufacturer on the outside cover or jacket"; ance in a copyrighted motion picture when it the "manufacturer" is defined as the owner picks up a licensed telecast of the work and or licensee of the right to distribute the master sends it on to paying subscribers over wires. recording "through regular trade channels." This sharply disputed question, which had never before been decided by a U.S. court, has assumed great economic importance be- Judicial Developments cause of the nationwide proliferation of CATV systems, which have not been paying There were few developments during the copyright royalties. year in either of the current actions in which The decision of the court, expressed in one the Register of Copyrights is a party. Public of the most comprehensive, detailed, and care- Affairs Associates, Inc. v. Rickover, the long- fully reasoned opinions ever issued in the copy- pending action in which both the Register right field, was that unauthorized CATV and the Librarian of Congress are defendants, transmissions constitute an infringement of involves the question of whether certain works exclusive performing rights in the copyrighted by Admiral Rickover are validly copyrighted works included in the transmissions. Aside or are "Government publications" and hence from its great potential impact on the develop- in the public domain. In December 1965 the ment of community antenna television in the plaintiff filed requests for admissions and sup- United States, Judge Herlands' decision is plemental interrogatories on the Register and important for its construction of the exclusive several of the other Government defendants, rights of copyright owners under the statute. as well as on Admiral Rickover, and these re- The basic holding in the United Artists case quests were answered. is that the activities of community antenna Hoffenberg v. Kaminstein is an action by systems constitute a public performance within the coauthor of the novel Candy to compel the meaning of section 1 of the copyright the Register to accept an application which statute. The court concluded that, rather had previously been refused registration for than being mere "passive antennas," CATV failure to comply with the manufacturing re- systems "consist of sophisticated, complex, ex- quirements. In March 1966 the case was tremely sensitive, highly expensive equipment, called up before a pretrial hearing examiner especially contructed and designed" for active REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 9 transmissions and which, in effect, "perform not a subscriber views any particular a function substantially identical to that of a program.'' network affiliated station, UHF translator, or The United Artists case is also the first deci- VHF repeater." Starting with the "classic sion in the United States containinn- an ex- conception'' of a pcrformance as one involving press ruling on the question of whether a copy- an actor performing a work and an audience right owner's license to broadcast a work in each other's presence, Judge Herlands held carries with it an "implied in law license" for that this concept has been altered by the "con- others to pick up the broadcast and transmit temporary revolution in the science and tech- it further. Judge Herlands held that no such nology of rnass communication-a revolution license should be implied and, in the light of generally recognized as profound as the in- today's technology, rejected the argument that vention of the printing press." The tenn the copyright owner could protect himself by "performance" today is held to incorporate refusing to license the initial broadcast. The three separable components: (1) the actor's court also held that nothing in the Communi- rendition, (2) the "method of communicat- cations Act of 1934 or the F.C.C. regulations ing the rendition to the audience," and (3) in any way impairs the copyright owner's right the method by which the audience receives it. to collect royalties. After exhaustively analyzing the relevant case Judge Herlands emphasized that it is the law, legislative intention, technology, and function of the courts to prevent "a new means economic factors, the court concluded that of accomplishing an old and proscribed end any or all of these activities can be a "per- from diluting or decreasing the scope of the formance" within the meaning of the copy- monopoly Congress has granted to the copy- right law. right proprietor." He regarded this function On the question of whether the "for profit" as fundamentally different from "expanding limitation on the public performance right the scope of that monopoly-which only the was applicable, the court held that, "with Congress can legitimately do." The opinion respect to motion picture photoplays, the in- cites and quotes extensively from the discus- fringing public performance need not even be sion on community antenna systems in the for profit.'' With respect to the other, non- Supplementary Report of the Register of dramatic motion pictures involved in the suit, Copyrights on the General Revision of the U.S. Copyright Law, and "notes in passing the court decided that the performances had that, despite the fact that exemptions from been "for profit" since the community an- inclusion within the copyright proprietor's per- tenna systems were operated as commercial formance monopoly may arguably be desirable business enterprises. For this purpose, the in certain instances purely on policy grounds, court specifically held that it made no diffc'cr- such desiderata are for Congress and not ence whether the defendants levied their the courts." Having determined that the charges on subscribers on a monthly, yearly, "defendant's activities constitute a public per- per program, or any other basis and found it formance for profit within the meaning of the irrelevant: ( 1) that "defendant's systems do Copyright Act," the court held that it "has no

not rent, sell, or repair television receiving sets discretionary. power- to except that defendant for subscribers"; (2) that "the subscribers . . . from the coverage of the Act. Only Congress make the decisions as So when and whether can legitimately do that." the . . . sets are turned on or off"; and (3) Five months before the United Artists deci- that "defendant's . . . systems make no sep- sion was handed down. the same court ruled arate charge to subscribers related to whether on the plaintiff's motion for summary judg- or not a . . . set is turned on, or whether or ment in the other major CATV case now 10 REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6

pending, Columbia Broadcasting System, Inc. Revenue Code. The court noted that the v. Teleprompter Corp., 251 F. Supp. 302 phrase in the copyright law "has been broadly (S.D.N.Y. 1965). After considering "exten- interpreted to include indirect profit." The sive affidavits and memoranda" as well as the copyright decisions were held not to be com- contentions urged during "full oral argu- pelling because the courts in those cases were ment," the court denied the motion on the concerned with "the protection of a specific ground that, by its nature, the action was "not statutory righty'-"the monopoly rights appropriate for disposition by summary judg- created under the Copyright Act." Neverthe- ment" and without a trial. Judge Wyatt less, the court upheld a Treasury Regulation noted that the "nationwide growth of CATV" giving the phrase a construction consistent has been "explosive," that the United Artists with that of the copyright cases. case was pending in the same court, that "a significant part of the factual area is tech- Rights of Exhibition and Copying nical," and that "the case at bar is not only one of first impression but is also a test case The present copyright law does not grant and one of the battles in a war between the an explicit right of "exhibition" or "display," television broadcasting industry on the one and the question of whether projection of an hand and the CATV system operators on the ephemera image of a copyrighted work con- other." stitutes "copying" has been a disputed issue for The United Artists decision is being ap- many years. The plaintiff in Mura v. pealed, but as the first ruling on a question Columbia Brondcasting System, Inc., 245 F. of national importance, its significance can- Supp. 587 (S.D.N.Y. 1965), was owner of not be overestimated. It has focused atten- copyright in several hand puppets which were tion on copyright as the dominant legal issue exhibited and used as part of the entertain- in the CATV controversy and has furthered ment on two "Captain Kangaroo" programs. the efforts at seeking a legislative solution to The puppets used-were apparently authorized the problem. Dispatch, Inc. v. City of Erie, reproductions bought on the open market and, 249 F. Supp. 267 (W.D. Pa. 1965), was an even though kinescopes of the programs had earlier action by a broadcaster against a been made. the court held that there had been CATV system on grounds other than copy- no infringement. Noting that "the electronic right infringement. The court relied on Cable image produced in live television broadcast- Vision, Inc. v. KUTV, Inc., 335 F. 2d 348 ing . . . is not permanent," and that "after

(9th Cir. 1964), cert. denied, 379 U.S. 989 1P,f15.000 of a second ~lusthe time for the (1965), in holding "that television signals in phosphor decay, which is measured in milli- the air are in the public domain, . . . that seconds, the image disappears and nothing is there is no property right of any person to be left," Judge Levet held that "the evanescent protected insofar as television signals are con- reproduction of a hand puppet on a television cerned," and that there is "free access to copy screen or on the projected kinescope record- whatever the federal patent and copyright ing of it is so different in nature from the copy- laws leave in the public domain." righted hand puppet that . . . it is not a copy." The judicial construction of the phrase Interestingly enough, the same point -was touched on in the United Artists case discussed "public performance for profit" in the copy- above, in which the plaintiff claimed that right statute was considered by the Ninth Cir- communit~antenna television transmissions cuit Court of Appeals in United States v. D. I. constitute a form of "copying" or reproduc- Operating CO., 362 F. 2d 305 (1966), an ex- tion as well as a performance. As phrased by cise tax case involving the meaning of the the court, the argument was that "defendant's phrase "conducted for profit" in the Internal CATV systems store information (i.e., pro- REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 11 gram intelligence) in the coaxial cables dur- from its copyright." In construing the scope ing the time the audio and video signals are of the right to "copy," the court held that, even being propagated through the cables ; that 'the though "the copying of the original story was physical reality of the electromagnetic field accomplished indirectly through copying of a containing the sights and sounds of the pro- translation of the original," this was 'honethe- gram is every bit as real as a piece of paper less copying" : "Unauthorized copying may be with print on it or of a photograph;' . . . and effected either directly or illdirectly ; thus copy- that the storage of electromagnetic energy in ing from a copy is 110 lcss an infringement than CATV coaxial cables and on videotape is copying from the original copyrighted work." basically the same." Although Judge Her- lands observed that these arguments "are not Author's "Moral Right" without force," he held that "the potential ramifications of an adjudication of those ad- An exclusive right granted under a number ditional issues are so far-reaching that the of foreign copyright laws is the so-called court will not pass on them where such a de- "moral right" which, in one of its forms pro- termination is not necessary to a disposition hibits the distortion or mutilation of an au- of the case at bar." thor's work. There is no statutory recog- The complicated litigation involving al- nition of any "moral right" in the United leged infringement of Jean Genet's Journal States, although some courts have approached du Voleur (Thief's Journal) will be discussed a partial acceptance of the doctrine on grounds in more detail below, but it produced an im- such as unfair competition. portant decision involving the scope of the Two cases during the year demonstrated right to "copy" that should be noted here. the limited scope of the "moral right" in the A basic question in Grove Press, Inc. v. The United States. At the same time these cases Greenleaf Publishing Co., 247 F. Supp. 518 threw a spotlight on the legal and moral is- (E.D.N.Y. 1965), was whether an American sues involved in the cutting and interruption paperback publisher infringed the copyright of motion pictures shown on television. While in Genet's original French text when he copied the plaintiffs (both famous film producer-di- word-for-word an English-language transla- rectors) were largely unsuccessful in their legal tion that had fallen into the public domain. actions, the nationwide publicity their argu- The court held that copyright in a work covers ments received could have some long-range more than the mere "form of communication" effects. in the particular words chosen by the author: The first case, Preminger v. Columbia Pic- "The essence of a novel or any other story for tures Cotp., 148 U.S.P.Q. 398 (N.Y. Sup. Ct., that matter, is the plot, plan, arrangement, Trial Term, N.Y. County, 1966), af'd per characters and dialogue therein contained and curium, 149 U.S.P.Q. 872 (N.Y. Sup. Ct., not simply its form of articulation." While App. Div 1966), aff'd per curium, 150 noting that "the abstract idea of the novel U.S.P.Q. 829 (N.Y. Ct. App. 1966), involved or play alone" cannot be protected, Judge the motion picture version of Anatomy of a Murder. Having failed to obtain a prelimi- Bartels held that "the particular pattern em- nary injunction requiring the film to be shown ployed in arranging and expressing that idea on television without cuts or commercial is entitled to protection." Since the trans- breaks (154 N.Y. Law Journal 17, Oct. 18, lation in this case, "like any other derivative 1965; see also 154 N.Y. Law Journal 5, Nov. work, . . . is separate and apart from the un- lo, 1965), Otto Preminger sought a permanent derlying work . . . a dedication to the public injunction on grounds of unfair competition. of the derivative work did not, without more, In denying this relief, Justice Klein began his emancipate the pattern of the underlying work decision "with the proposition that the law 12 REPORT OF THE REGISTER OF COPYRIGHTS, 19 66 is not so rigid, even in the absence of con- involved the efforts by George Stevens to tract, as to leave a party without protection prevent the defendants from cutting and in- against publication of the garbled version of serting commercials into its television show- his work," and stated that the court "appre- ing of A Place in the Sun (Stevens' film ver- ciates that the failure of the communitv . . . sion of Dreiser's An American Tragedy). to protect its gifted men of letters led to trage- Stevens was granted a preliminary injunction dies which comprise scars in the history of by Judge Nutter of the California Superior civilization." Court on the grounds of what the court termed The court held, however, that protection of the "false light concept": 'I. . . when a this sort must be subject to the terms of the photoplay is chopped up with thirty to fifty contract governing television rights; it con- commercials and the artist's name is put at strued the contract in question, in the light of the beginning of the film, it may be repre- the "custom prevailing in the trade," to per- sented to the public that the artist is offering mit "the usual breaks for commercials" and this to the public in this form." Judge Nut- "minor delet,ions to accommodate time seg- ter distinguished the Preminger decision on ment requirements or to excise those portions the grounds that, unlike the Stevens case, the which might be deemed, for various reasons, contract contained a specific television clause objectionable." With respect to cutting, and was signed at a time when industry prac- Justice Klein's opinion implied rather strongly tices were well known. The court enjoined that major deletions beyond "the normal cus- NBC from cutting or editing the film for the tom and practice in the industry," or cuts that purpose of inserting commercials "or other "interfere with the picture's story line," would material which will so alter, adversely affect be actionable as unfair competition despite or emasculate the artistic or pictorial qual- the contract; specifically, he stated that cuts ity . . . as to destroy or distort materially reducing the 161-minute playing time to 100 or substantially the mood, effect, or con- minutes or less would "obviously . . . not be tinuity." Judge Nutter made clear that the minor and indeed could well bk described as injunction did not prohibit the insertion of mutilation." any commercials and suggested that the in- Justice Klein's decision was affirmed by sertions be made at a change of scene. both the Appellate Division and the New NBC proceeded to show A Place in the Sun York Court of Appeals. In the former, how- ever, there was a strong dissent by Justice with nine separate interruptions for multiple Rabin, who argued that the television con- commercials and with minor cuts totaling tract should be construed as not allowing cuts 10v2 seconds. Stevens sought to have the without Preminger's approval. The dissent defendants found guilty of contempt of court, stressed that "the exhibition of a garbled ver- 150 U.S.P.Q. 572 (Cal. Super. Ct., Los sion under Preminger's name should by all Angeles County, 1966), but Judge Wells means be enjoined" as a matter of common ruled against him on the ground that the strict law, without regard to any contractual rights, terms of the injunction were broad enough to and added that "unlimited interruptions for permit what was done. Noting that "the commercials might tend to permit of a muti- most serious damage to the film was in the lated presentation of the picture to the detri- number of interruptions," and that "defend- ment of the common law rights of the ant's good faith would have been more ap- producer." parent if it had reduced, even slightly, the The second "moral rights" case, Stevens v. number of interruptions from its regular National Broadcasting Co., 148 U.S.P.Q. 755 format," Judge Wells nevertheless declared (Cal. Supcr. Ct., Los Angeles County, 1966) , that "the main reason why the television ver- REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 13 sion did not violate the injunction was the was also a party." Justice Frank character- power and strength of the film.." ized a number of these "conversational pas- The court's position was that "the effect of sages" as "contemplative in tone" and as in- commercial interruptions on a movie is in cluding "reminiscenses by the great author on adverse ratio to the strength or quality of the a wide variety of topics ranging from the per- film," and that A Place in the Sun was "so sonal to the literary." In addition to claim- dramatic, strong, exciting, romantic, tragic, ing unfair competition, breach of trust, and interesting and artistic that it prevailed over invasion of privacy, the plaintiff asserted "that the commercial interruptions." The decision all of the material incorporated in the book acknowledges that the effect of the commer- which is based upon the language, expres- cials was "to lessen, to decrease, to disturb, to sions, comments and communications of interrupt, and to weaken the mood, effect, or Ernest Hemingway, is subject to a common continuity, and the audience involvement; law copyright, that is, the right of first pub- and, therefore, some of the artistry of the lication of such material." film." But, because of the film's strength and The New York Supreme Court, in refusing because "the average television viewcr is thick- to grant a preliminary injunction, stated the skinned about commercials and tends to dis- "novel and provocative question" confronting associate them from what goes before and it as "whether a person's participation in after," Judge Wells held that the film had not spontaneous oral conversations with friends been "destroyed or distorted" within the over a course of years, in distinction to lectures meaning of the injunction. or prepared dialogues, may be considered a literary work subject to a common law copy- Subject Matter of Copyright right." Justice Frank's negative answer to this question was based both on the public The widespread use of miniature tape re- policy against possible restrictions on free corders and the increasing publication of speech and on the legal nature of conversa- works purporting to be verbatim transcripts tions. Citing the "enduring fame and inspi- of conversations and interviews raise a signifi- - rational stimulus of the works of recorders cant legal issue: under what circumstances such as Plutarch, Boslvell and Carlyle," he can the verbal expression contained in con- regarded the "social and historical implica- versations and personal dialogs be protected tions" of an injunction in cases of this sort as as literary property? This issue, which broke "striking at the very fundamentals of our surface in two widely publicized cases during political structure." The court also distin- the year, was most clearly framed in Heming- guished conversations from "the sort of indi- way v. Random House, Inc., 148 U.S.P.Q. vidual intellectual production" subject to 618 (N.Y. Sup. Ct., N.Y. County), afd, 25 legal protection on two grounds: ( that App. Div. 2d 719, on motion for sunzmary 1) conversations "reflect a duality that defies judgment, 156 N.Y. Law Journal 7 (July 22, dissection or divisibility" and therefore "can- 1966). The action was brought by Mrs. not be cataloged as merely the cumulative Ernest Hemingway to enjoin publication of product of separate and unrelated individual the book Papa Hemingway by A. E. Hotchner, a close friend of the Hemingways. efforts"; and (2) that "random and discon- The book, in the words of the court, is a nected oral conversations" are "merely a dis- "biographical study" whose "intimacy and oriented conglomeration of unconnected immediacy is heightened by the liberal use of expressions" until they are given a presenta- a conversational format wherein Hemingway tion that "organizes them into a coherent is quoted extensively but always within the format and renders them meaningful." This confines of conversations to which Hotchner ruling was upheld on appeal, and motions for 14 REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 summary judgment in the case were later The court held that "the fact that the source denied. of the material for the map is in the public This issue arose again in another action domain does not void the copyright," but against the same defendant, Rosemont Enter- added that "copyright protection is limited to prises, Inc. v. Randonz House, Inc., 256 F. the new and original contribution of the map Supp. 55 (S.D.N.Y.), rev'd, 366 F. 2d 303 maker," and that "there is a strong inference (2d Cir. 1966). This suit for infringement of . . . that some of the material in the map copyright in certain Look magazine articles was obtained by . . . observation on the ter- was a part of efforts to prevent publication of rain." The label case of the year was Gray an unauthorized biography of Howard v. Eskimo Pie Corp., 244 F. Supp. 785 (D. Hughes. Some use of the material in the Del. 1965), which held uncopyrightable the Look articles had been made in defendant's material appearing on the paper container book, including verbatim quotation of "two that "simply describes the weight and content conversations, one between Hughes and the of SNONUTS,names plaintiffs as the manu- actor Skelton . . . , and the other between facturer-distributor thereof, states that SNO- White [the author of the articles] and 'one of NUTS is plaintiffs' trademark, and describes Hollywood's best known stars."' The lower SNONUTSas 'The Ice Cream with the Hole.' " court held that these conversations, even if Noting that "there is nothing unusual about recounted accurately, "are not mere uncopy- the lettering which is used," the court cited rightable historical facts," but are the author's the Copyright Office Regulations to support "own version of what occurred, expressed in its conclusion that "matters such as these- his own language and part of his effort to slogans, names, listing of ingredients or con- picture Hughes and his personality and is thus tents, are not subject to copyright." copyrightable." As an interesting counter- Blumcraft of Pittsburglz v. Newman BTOS., point to the Hemingway opinion, Judge Bryan Inc., 246 F. Supp. 987 (S.D. Ohio 1965), in- added: "Even assuming that the dialogue volved a claim of infringement of copyright involving White himself was an exact repeti- in some of the art work in a catalog for orna- tion of the conversation, certainly White's part mental iron railings. Plaintiff's catalog con- in the conversation would be original and tained what was called a "new and dramatic would have contributed to the reply elicited. means of presentation" of its products, con- It likewise is copyrightable material." The sisting of a fence in sharp perspective and District Court's decision enjoining publication against a black background. Defendant's il- of the biography was reversed by the Second lustrations showed a very similar perspective Circuit Court of Appeals on grounds of fair view on a black background, but pictured de- use, but this holding on the copyrightability fendant's own iron products rather than those of conversations was left undisturbed. of the plaintiff. The court held for the de- Several cases involving the familiar prob- fendant on the ground that the perspective lems of copyrightability in the fields of maps, and background were mere ideas which went commercial labels, and trade catalogs arose into the public domain on publication, and in fiscal 1966. In County of Ventura v. that defendant had not copied the copyright- Blackburn, 362 F. 2d 515 (1966), thc Ninth able elements in plaintiff's work: "a copyright Circuit Court of Appeals upheld copyright in infringement action cannot be found in mere a map of Ventura County, Calif., which had resemblances occasioned by a generally similar been prepared at a cost of $7,500 by "assem- perspective presentation." bling, preparing, collating and compiling" in- In Lin-Brook Builders Hardware v. Gertler, formation from government maps, assessors' 352 F. 2d 298 (19651, the lower court had records, aerial photographs, and other records. held that drawings of hardware products in REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 15 plaintiff's catalog were uncopyrightable, partly preliminary injunction partly on the grounds because they were advertisements of utili- that the plaintiff's "idea, plan and method" tarian articles and partly because the drawings were not copyrightable and that the design lacked "originality." The Ninth Circuit of a telephone dial published as part of the Court of Appeals reversed this decision, hold-, material is in the public domain. ing on the basis of "overwhelming authority" The idea or plan for a word-puzzle entitled that advertising is copyrightable, and rejecting Scramble orluntble was held nut to be subject the trial court's conception of "originality." to protection as literary property in Dell v. Judge Beeks indicated that the lower court Chicago-Tribune-New York News Syndicate "seems to have been led astray by the dual Inc., 24 App. Div. 2d 859 (N.Y. 1965). On meaning of the word" since, taking a drawing the other hand, where the plaintiff in Silver v. of a Texaco oil can as an example, the court Television City, Inc., 148 U.S.P.Q. .I67 (Pa. had said that it lacked originality because "any Super. Ct. 1965), had reduced his idea for a meticulous artist, looking at the can before television program entitled Air Your Gripe to him, would have drawn itin the same manner, concrete form "by tape recording, typewritten achieving the same result." The appeals format, and dummy script," his'common law court held that a drawing of an oil can is no rights were held to have been infringed by a less copyrightable than a photograph of it, and program entitled Pulse of the People. Siart- that " 'originality' in copyright law is not a ing from the premise that "radio and televi- question of creativity or novelty, but one of sion programs may be such literary produc- authorship or source of origin." Under the tions as are protected by the common law" decision, "appellees were free to copy the orig- if they "evidence the exercise of skill, descrip- inal oil can, but they were not free to copy tion and creative effort," Judge Montgomery Baxter's copy of the can." held that it makes no difference that the au- In another case involving trade publica- thor "takes existing material from sources tions, Flick-Reedy Corp. v. Hydro-Line Man- common to all writers" as long as he "creates a ufacturing Co., 351 F. 2d 546 (1965), the new form and gives them an application un- Seventh Circuit Court of Appeals reversed a known before in a different manner and for a lower court decision and upheld copyright in different purpose resulting in a real improve- two pages of a sales booklet containing "math- ment over existing modes." ematical data and formulae with explanations The familiar principle that "no copyright for their use." The appeals court was careful protection will be given to the title of a literary not to base its decision on the copyrightability production" was upheld in Cinepix, Inc. V. of the computations appearing in the mathe- Triple F Productions, 150 U.S.P.Q. 134 (N.Y. matical charts, which the defendant could well Sup. Ct., N.Y. County, 19661, a case involv- have been found to have calculated independ- ing two television series both entitled I Spy. ently. Instead, it held that the "arrangement, In Northern Music Corp. v. Pacemaker Music expression and manner of presentation Co., 147 U.S.P.Q. 357 (S.D.N.Y. 1964), on of the computations, formulae and explana- motions for summary judgment, 147 U.S.P.Q. tions" were copyrightable and infringed. In 358 (S.D.N.Y. 1965), the issue was infringe- a case involving copyright in various publica- ment of copyright in a composition entitled tions prepared in connection with "a plan for Don't Let the Sun Catch You CryinJ by an- a service to provide an accounting of tax de- other song entitled Don't Let the Sun Catch ductible drug purchases by individual taxpay- You Crying. Despite plaintiff's argument ers from drugstores," Drugtax, Inc. v. Systems that "both compositions have the same cen- Programming Corp., 147 U.S.P.Q. 3 13 (M.D. tral idea and literary text under the same Pa. 1965), the court denied a motion for a title, and that the musical phrase underlying 16 REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 the principal lyrical theme 'Don't Let the Sun question; and the nature of the right pro- Catch You Cryin' ' is substantially the same," tected." The court indicated that both the Judge Cooper denied a preliminary injunc- making of additional copies of the plans and tion on the ground that "mere similarity of the the building of homes from them could con- title line is not in itself enough," and Judge stitute infringement of copyright but held that Palmieki denied motions for summary judg- a general publication of the plans took place ment on the ground that the showing of simi- ( 1) when the "plaintiffs, through their multi- larity was insufficient. ple listing and open house exhibitions, invited the general public to review the floor plan," Publication and (2) "when they sold the residence and furnished the purchaser with a copy of the The difficult problem of what constitutes plans . . . without restriction upon the use." a general publication in the field of architec- The court held specifically that the open ex- tural designs was dealt with in Read v. Turner, hibition of the house itself constituted a gen- 148 U.S.P.Q. 453 (Cal. Dist. Ct. App. 1966). eral publication of the floor plan since the The plaintiffs, a married couple, drew up plan "readily was observable by those to whom plans for their own home and let the defend- the exhibition was made." On the other ant contractor use them under restricted con- hand, the original delivery of the plans to the ditions for purposes of preparing a bid. The defendant for bidding purposes was held to be contractor had 10 copies made of the plans a limited publication, and the court indicated and started building homes based on them. that there could be recovery for any acts of Meanwhile, after the plaintiff's home was infringement that took place before the house completed, it was listed for sale with a large was opened for public inspection. group of agents and given a number of open The concept of publication was also ex- house showings. The purchaser was given a plored in cases involving infringement of Fed- copy of the floor plan to obtain rug eral copyright in the designs of "troll dolls," measurements. Scandia House Enterprises, Inc. v. Dam The California District Court of Appeal Things Establishment, 243 F. Supp. 450 noted that the California Code provisions (D.D.C. 1965), and of textile fabrics, Key "adopt, in general, the common law copy- West Hand Print Fabrics, Inc. v. Serbin, Inc., right rule; confer a copyright upon the design- 244 F. Supp. 287 (S.D. Fla. 1965). In the er of a house plan, protecting his property in "troll doll" case large quantities of the popular the plan designed; and terminate the copy- figurines had been sold in the United States right upon publication when control by the without notice, and the court held that "de- owner over the subject thereof ceases." Jus- fendant cannot properly contend that manu- tice Coughlin then reviewed the distinction facture of Dolls . . . without notice was an between a "general publication" that termi- unauthorized act, a mistake, or a breach of nates common law rights and a "limited pub- a condition of a license agreement, particu- lication" that does not, stating the factors to larly where defendant was aware of the manu- be considered as: "the intention of the owner, facture of Dolls without notice and he did not viz., whether his acts of publication are indic- take remedial action until 60 days before ative of an intent that the subject of the copy- trial. Rejecting any argument based on right may be used by the general public; the section 21 of the copyright statute, Judge character of the communication or exhibition Jackson also held that "sale of Dolls by de- effecting the publication; the nature of the fendant without notice places the Dolls in the subject of the copyright as related to the public domain from which they cannot be method of communication or exhibition in withdrawn by a contention that the omission REPORT OF THE REGISTER OF COPYRIGHTS, 1966 17 of the notice was accident or mistake, par- Kontes Glass Co. v. Lab Glass, Znc., 250 F. ticularly where the notice was omitted from Supp. 193 (D. N.J. 1966), a case involving almost all of the Dolls ever manufactured." glassware catalogs, the plaintiff was denied a The court added that "a publisher is one who preliminary injunction on general grounds reproduces material for sale, . . . not one who of publication without notice or abandon- purchases material for resale," and that sale ment.' The court conclud,ed, without going to an intermediate distributor "without re- into a detailed analysis of the items claimed to striction as to the purpose of the sale and with- have been copied, that the entire catalog was out limitation on-[thel . . . right of distribu- probably in the public domain because parts tion or resale" was a general rather than a of it had been reproduced from earlier un- limited publication. copyrighted catalogs and pamphlets, because In the Key West case the defendant argued, even after copyright registration plaintiff had among other things, that copyright protection published excerpts from its catalogs without had been lost by two acts of general publica- notice, and because plaintiff waited 9 years to tion: (1) by showing a drawing of what be- make registration and this "may have resulted came the fabric design to a prospective cus- in certain of its published items having become tomer, and (2) by allowing publication of a preempted in and by the public domain." reproduction of the design in fashion article Similarly, the court in Gray v. Eskimo Pie appearing in Life magazine. The court re- Corp., 244 F. Supp. 785 (D. Del. 1965), jected the first argument on the grounds that found that the only copyrightable portion of exhibition of "renderings" of the design did plaintiff's label had been used earlier on bags not constitute especially- since and cartons; "although only a small quantity "they were not even the complete design" and of SNONUTSwas involved, it was for public since the limited showing was merely to get sale," and "this constituted publication . . . an "opinion or reaction." The second argu- without the statutory notice," which placed ment was dismissed because "all of plaintiff's the material in the public domain. material was printed with the copyright no- tice beginning with that which first left the Notice of Copyright factory," and "plaintiffs 'cooperation' did not require it to insist that the statutory mark be The familiar problem of the validity of a displayed in the photographs used by Life." notice imprinted on the selvage of textile B. Wilmsen, Inc. v. Consolidated Novelty fabrics was raised again in Key West Hand Co., 251 F. Supp. 874 (S.D.N.Y. 1965), in- Print Fabrics, Inc. V. Serbin, Inc., 244 F. volved a dispute bver importation of artificial Supp. 287 (S.D. Fla. 1965). The notice in Christmas trees. The defendant had regis- this case appeared with each repeat of the tered claims to copyright in the design of trees design, at intervals of about 30 inches, and imported from Hong Kong, and on the the defendant argued that the notice could strength of its certificate was s~ccessfulin hav- have been embodied in the design itself with- ing the Collector of Customs detain "piratical out impairing its market value or aesthetic copies" of the tree imported by the plaintiff. appeal. The court, in holding otherwise, re- The plaintiff in turn sued for a declaratory marked that although it may sometimes be judgment as to the invalidity of the copyright possible for a well-known designer to work his and sought a preliminary injunction forcing name into a design, "it is not feasible for the Customs to release the goods. The court printer or converter of the cloth to do so." granted the injunction on the basis of evidence The court also held that, even though the showing a "substantial likelihood of proving plaintiff's name had been changed from "Key there was a publication without notice." In West Fabric Company" to "Key West Hand 18 REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 66

Print Fabrics, Inc." and some material may tice in the newspapers was not adequate to have appeared with the new name before it protect the advertisements. was officially recorded, the validity of the In Lin-Brook Builders Hardware V.Gertler, copyright was unaffected; "it is not necessary 352 F. 2d 298 (9th Cir. 1965), the trial court that the owner's true name be used at all so had held that, since many of the plaintiff's long as a name with which it is identified is catalog illustrations had been copyrighted ear- used and no innocent persons are misled," and lier, the new matter in the catalog was not here the defendant was a "knowing infringer protected since the copyright notice did not and aware of the existence of the copyright." identify what material was copyrighted when. The notice appearing on the side rather than The Court of Appeals revened this ruling as the front of a wall plaque was held sufficient "contrary to the express language of the stat- in Miller Studio, Znc. v. Pacific Import Co., ute . . . and to the holdings of the decided 39 F.R.D. 62 (S.D.N.Y. 1965). On the other cases." hand, in the "troll doll" case, Scandia House The mare's nest of litigation involving Enterprises, Znc. v. Dam Things Establish- Genet's Thief's Journal produced two deci- ment, 243 F. Supp. 450 (D.D.C. 1965), the sions dealing with copyright notice during court refused to accept the claim that the the year: Grove Press, Znc. v. Greenleaf Pub- word "Denmark" appearing in conjunction lishing Co., 247 F. Supp. 127 (E.D.N.Y. with the notice was an "acce~tedalternative 1965), on motion for preliminary injunction, designation" of the copyright owner, Dam and 247 F. Supp. 518 (E.D.N.Y. 1965), on Things Establishment of Vaduz, Liechtenstein. motion for summary judgment. A rough Judge Jackson ruled that the notice was "in- chronology of the case begins in 1949, when adequate because the word 'Denmark' . . . Genet's novel Journal du Voleur was pub- is not the name of defendant. but identifies lished in France with a valid U.S. copyright the country of origin usually placed on im- notice. An authorized English translation was ported merchandise to conform to the require- made by Bernard Frechtman, an American ments of the Tariff Act." citizen, and five pages of it were published A test case to determine the rights of news- in the United States in 1952 in the anthology paper publishers to protect the advertisements New World Writing with a separate notice prepared and published by them for local in Frechtman's name. The excerpt was reg- advertisers was decided against the plaintiff istered separately in the Copyright Office. in Brattleboro Publishing Co. v. Winmill Pub- In 1954 the Frechtman translation, includ- lishing Corp., 250 F. Supp. 2 15 (D. Vt. 1966). ing the five-page excerpt in revised form, The four advertisements in suit. which were was published in France by the well-known for a restaurant, a sports shop, a jewelry store, Olympia Press, with a notice reading "Copy- and a real estate dealer, had been published right 1954 by B. Frechtman and the Olympia as part of plaintiff's copyrighted newspaper Press, Paris." In 1964, acting under a li- but without separate copyright notices of their cense from Genet, Grove Press published an - - own. Plaintiff claimed no copyright-. - in na- American edition of the Thief's Journal con- tional advertising or in political ads prepared sisting of a substantially revised vcnion of by the candidates, but it asserted the right to the Olympia Press edition; the copies bore sue another newspaper for reproducing its a 1964 copyright notice in the name of the local advertising without permission. The publisher and also contained a 1949 copy- court concluded that ownership in the adver- right notice referring to the original French tisements remained with the advertisers who edition. In 1965 the Greenleaf Publishing engaged the newspaper to prepare and pub- Company published an unauthorized edi- lish them, and that therefore the general no- tion which was an exact photo-offset fac- REPORT OF THE REGISTER OF COPYRIGHTS, 196 6 19

simile of the 1954 Olympia Press edition. The held that the failure to copyright the English 1949 edition was finally registered in the translation published by Olympia Press in Copyright Office in July 1965, but no regis- 1954 was not "fatal to the copyright on the tration was ever made for the edition pub- pattern of the underlying work unless the lished by Olympia in France in 1954. author has consented to such dedication." Greenleaf's basic defense was that the text Since no consent by Genet had been shown, of the Olympia Press edition is in the public the defendants were held to have infringed domain because it represents a book in English the copyright in his French-language work by by an American citizen and therefore violates copying the uncopyrighted English transla- the manufacturing requirements. Since no tion. ad interim copyright was secured in the work, it was argued, the text of that edition, which Copyright Registration is all that Greenleaf copied, went into the pub- lic domain 6 moilths after first publication. At least four cases during the. year added In moving for a preliminary injunction, plain- authoritative support to the established prin- tiff based its claim entirely on the five-page ciple that a certificate of registration is prima excerpt published in compliance with the facie evidence of the validity of the copyright: manufacturing requirements and registered in Flick-Reedy Corp. v. Hydro-Line Manufac- 1952; since this excerpt was incorporated in turing Co., 351 F. 2d 546 (7th Cir. 1965) ; the 1954 edition, defendant had copied it Manes Fabrics Co. V. Miss Celebrity, Inc., along with the rest of the text. The court up- 26 F. Supp. 975 (S.D.N.Y. 1965) ; Man- held the validity of copyright in the excerpt, power, Inc. v. Temporary Help of Harrisburg, representing 2 percent of the entire text, and Inc., 246 F. Supp. 788 (E.D. Pa. 1965) ; and ruled that its protection was not lost by its Miller Studio, Inc. V. Pacific Import Co., 39 incorporation in a foreign edition that failed F.R.D. 62 (S.D.N.Y. 1965.) The opinion in to satisfy the manufacturing requirements. the Manpower case stated that a certificate However, it refused to grant a preliminary constitutes "a prima facie showing of author- injunction on the authority of a 1915 decision, ship, originality, ownership, copyrightability Bentley v. Tibbals, 223 Fed. 247 (2d Cir.), and l?~~blicationby plaintiff," and the court in which had concluded in a somewhat similar the Flick-Reedy case ruled that the presump- case that a person "who so embodies copy- tion of validity is not overcome by a showing righted with uncopyrighted matter that one that some of the material in the work is in reading his work cannot distinguish between the public domain. In the Miller case Judge the two has no right to complain if the book Levet held that, since a "Certificate of Regis- is republished by third parties." tration is prima facie evidence of the facts This ruling with respect to the notice re- stated therein, . . . and in the absence of quirements, which seems to be against the contradictory evidence is sufficient proof to weight of present authority in cases not in- establish a valid copyright, . . . there is no volving the manufacturing requirements, was merit in defendant's assertion that a defense exists because has not shown what left undisturbed by the later decision of Judge lai in tiff was actually filed in the Copyright Office." Bartels on plaintiff's motion for summary On the other hand, it was held in Gray v. judgment. The basis for that motion, how- Eskimo Pie Corp., 244 F. Supp. 785 (D. Del. ever, was not limited to infringement of the 1965), that a certificate "is not evidence that five-page excerpt, but included a claim of plaintiffs commercial label always bore a copyright infringement with respect to the statutory notice of copyright." French text originally published in 1919. In In Gladys Music, Inc. v. Arch Music Co., ruling for the plaintiffs on this point, the court 150 U.S.P.Q. 26 (S.D.N.Y. 1966), the court 20 REPORT OF THE REGISTER OF COPYRIGHTS, 1966 held that the first assignee of the authors' com- fused to rule the certificates invalid, holding mon law rights "became the proprietor of the that since "there was no showing . . . that this Song within the meaning of Title 17, U.S.C. was other than an innocent misstatement, un- Section 9, and, as such, was the sole person accompanied by fraud or intent to extend the entitled to apply for statutory copyright." statutory period of copyright protection," the Thus, a registration for the unpublished com- error "does not, therefore, invalidate the position, made in the name of a later assignee, copyright." was held to be void, and the court directed Another defense in the Key West case was the defendant "to execute all necessary and that plaintiff had delayed several months in proper documents which may be required to making registrations and was thus guilty of expunge from the records of the Register of laches. The court, in rejecting this argument, Copyrights and throughout the world the void explained the delay as the result of "produc- registrations." The decision indicates that no tion problems" arising from the fact that the statutory copyright came into being until sev- plaintiff's designs "became the rage of the eral months after the void registration, when dress-buying public in late 1962 and early the true proprietor registered a claim in its 1963, and the demands on the manufacturing name. The main issue in Richmond v. of fabric in Key West was great." It added Weiner, 353 F. 2d 41 (9th Cir. 1965), was that, "in any event, registration in the Copy- whether the plaintiff was sole owner of a copy- right Office is only a prerequisite to suit and right or whether she owned it jointly with the does not affect the efficacy of the copyright defendant. The court held that the work was itself." A somewhat different conclusion is one of joint authorship; even though the indicated in Kontes Glass Co. v. Lab Glass, plaintiff had made copyright registration in Inc., 250 F. Supp. 193 (D.N.J. 1966), where her name alone, the court upheld the registra- one of the grounds for denying plaintiffs mo- tion and, on the theory that "equity regards as tion for a preliminary injunction was that a done that which ought to be done," ruled that delay of 9 years in making registration con- the plaintiff held the copyright in trust for her- stituted laches which "may have resulted in self and the other owner. certain of its published items having become One of the defendant's arguments in Lin- preempted in and by the public domain." Brook Builders Hardware v. Gertler, 352 F. The important rule of Vacheron €3 Con- 2d 298 (9th Cir. 1965), was that the statement stantin-Le Coultre Watches, Inc. v. Benrus of "new matter" given in the certificate of registration covering plaintiffs catalog "was so Watch Co., 260 F. 2d 637 (2d Cir. 1958), that indefinite and uncertain as to be a failure of no action for infringement of copyright in a notice to the public." The statement, which work can be maintained unless and until a read "New matter consists of new artistic certificate of registration has been issued for drawings of merchandise, new textual and pic- the work, received support in two decisions torial material not previously published and during fiscal 1966. In the Thief's Journal new layouts and revisions," was held to "give case discussed above, Grove Press, Inc., v. all notice the statute requires." Even more Greenleaf Publishing Co., 247 F. Supp. 518 liberal was the decision in Key West Hand (E.D.N.Y. 1965), Judge Bartels cited the Print Fabrics, Inc. v. Serbin, Inc., 244 F. Vacheron case as authority for his conclusion Supp. 287 (S.D. Fla. 1965), where the appli- that "no affirmative relief could be grounded cations and certificates of registration were on the Olympia translation, at least in this shown to have stated a date of publication at Court, since no certificate of registration on least one month later than the date when the this work has been issued by the Register of works were actually published. The court re- Copyrights." REPORT OF THE REGISTER OF COPYRIGHTS, 19 6 6 2 1

The point was even more directly involved is done." The artist's later assignment of any in the latest decision in the Candy case (G.P. interest he had in his drawings to the plaintiff Putnam's Sons v. Lancer Books, Inc., 251 F. was held insufficient to rebut this presump- Supp. 210 (S.D.N.Y. 1966) ), concerning a tion. The court in Brattleboro Publishing motion by defendant to dismiss the complaint Co. v. Winmill Publishing Corp., 250 F. Supp. on .the ground that no registration had been 215 (D. Vt. 1966), cited the Lin-Brook deci- made for the material claimed to have been sion as authority for its conclusion that "when infringed. The court, in granting the mo- an advertiser engages a newspaper to produce tion, noted that the Vacheron case, which is and publish an advertisement and there is no "clearly in point and is not distinguishable," agreement made between the advertiser and holds "directly that under 5 13 an action for the newspaper as to the ownership of the ad, infringement may not be maintained when then the ownership of the advertisement and the work has not been registered with the the right to copy the advertisement is in the Copyright Office." Judge Bryan commented advertiser and not in the one who publishes that "Law Review criticisms of Vackeron on it." which plaintiffs place much reliance . . . , Ferrer v. Columbia Pictures Corp., 149 whether well taken or not, are, of course, quite U.S.P.Q.236 (N.Y. Sup. Ct., Westchester Co., beside the point," and held that "where there 1966), represented an effort by JosC Ferrer has been refusal to register a party's sole rem- to enjoin distribution of the motion picture edy lies in a proceeding in the nature of man- The Long Ships on the ground that he was co- damus against the Register to compel author of the screenplay and that his permis- registration." The court rejected as out of sion was necessary in order to exploit the film. place the plaintiff's attack on the Copyright The court dismissed the claim, holding that Office Regulation which was the basis for the " 'joint authors' of a literary work stand in refusal to register, stating that "under Vach- the position of tenants in common . . . , and eron that question can only be litigated in an that either of the collaborators, without the appropriate action against the Register of consent of the other, may grant a license to Copyrights such as plaintiffs now have pend- use and deal with the work." The other au- ing in the District of Columbia." thor had transferred his rights to the defend- ant and, in the words of Justice Fanelli: "A Ownership, Assignment, and Renewal of grantee or licensee from a joint author may Copyright not be considered an infringer and may not otherwise be prevented by any other alleged Two decisions during fiscal 1966 dealt joint author from dealing with the work pur- with the ownership of copyright in material suant to the terms of the license." prepared on order by an independent con- Although the central issue in Gladys Music, tractor. In Lin-Brook Builders Hardware Inc. v. Arch Music Co., 150 U.S.P.Q. 26 v. 352 F. 2d 298 (9th Cir. 1965), a Gertler, (S.D.N.Y. 1966), was the ownership of copy- case involving the art work in a hardware cat- right in a song entitled the alog, the court ruled explicitly that "when one Good Luck Charm, person engages another, whether as employee Federal District Court held that it had juris- or as an independent contractor, to produce diction since, if the defendant was not the a work of an artistic nature . . . in the ab- copyright owner, it had infringed the plain- sence of an express contractual reservation of tiff's copyright. The plaintiff's claim was the copyright in the artist, the presumption based on a blanket agreement executed before arises that the mutual intent of the parties is the song had been written; the court con- that the title to the copyright shall be in the cluded that "title to a composition prior to its person at whose instance and expense the work existence is assignable," and that common law 22 REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 copyright vested in the plaintiff as soon as the of rights in renewal copyrights. The first and condition specified in the agreement-record- simpler of the two was Donaldson Publishing ing of the song by Elvis Presley-had been Co. v. Bregman, Vocco and Conn, Inc., 253 met. The currently popular Herman's Her- F. Supp. 841 (S.D.N.Y. 1965), in which the mits were involved in the infringement action principal issue was whether Walter Donald- decided in Hermusic, Ltd. v. Reverse Pro- son, the songwriter, had been an employee for ducers Corp., 254 F. Supp. 502 (S.D.N.Y. hire or an independent contractor when he 1966) ; the court held that, even though some wrote 87 compositions for a corporation he of the individual Hermits and their managers had formed with two associates. The court were stockholders and directors in the plaintiff found that, although "the money arrangement corporation, they had no authority to grant was heavily weighted in Donaldson's favor" an oral license to record compositions owned and although he was employed to write songs by the corporation. for others during the period, "he deliberately In Hiawatha Card Co. v. Colourpicture chose to be an employee for hire." The Publishers, Inc., 255 F. Supp. 1015 (E.D. court's ruling" on this issue enabled it to avoid Mich. 1966), a contract granting reproduc- deciding whether, as alternatively argued by tion rights in photographs intended for use on the defendant, the works had been "copy- post cards was held to be a license rather than righted by a corporate body (otherwise than a transfer of legal title of the exclusive right of assignee" or licensee of the individual au- reproduction, partly on the theory that copy- thor) "; that obscure provision of the copy- rights are indivisible and can be transferred right law must still await an authoritative only as a totality. County of Ventura v. construction. On another point, however, Blackburn, 362 F. 2d 515 (9th Cir. 1966j, in- Judge Connella indicated that a divorced volved construction of a contract granting wife is not a widow within the meaning- of the "the right to obtain duplicate tracings on linen renewal provision. from the photographic negatives" of plaintiff's In Gordon v. Vincent Youmans, Inc., 358 copyrighted map. The defendant had omit- F. 2d 261 ( 1965), the Second Circuit Court of ted the copyright notice from its reproduc- Appeals, in a split decision, reversed a District tions, and the court held that, since this did Court judgment declaring the son of Mack not amount to a "duplicate tracing," the con- Gordon, a co-author of the lyrics of Time on tract was breached and the defendant was an My Hands, to be a part owner of renewal infringer. An effort to foreclose a mortgage copyright in the composition. The basic ques- on the copyright in a motion picture was up- tion was whether a group of several docu- held in Empire Trust Co. v. Yankec Produc- ments executed in 1930 and 1931, when read tions, Znc., 155 N.Y. Law Journal 10 (N.Y. together, could be regarded as conveying Gor- Sup. Ct. 1966), even though the mortgage had don's renewal interest in the copyright. Judge not been recorded in the Copyright Office; the Hays, speaking for the majority, held that court held that the plaintiff had acquired the there were enough doubts on the question to copyright and all rights in the work under the require a trial; he also observed that 32 years mortgage, and that the defendants could not had "elapsed before the appellants' rights were benefit from the failure to record "for three challenged," that "the rights under the orig- reasons: first, they are not assignees without inal and renewal copyrights stem from the notice; they are not assignees who have made same source, and claims under one are inex- due registration; and, finally, they are not tricably tied to the other," and that "fie fact assignees." that appellee has sued only on the renewal Two cases in fiscal 1966 were actions for copyright does not preclude a finding of declaratory judgment dealing with ownership laches." Judge Timbers, in a long and force- REPORT OF THE REGISTER OF COPYRIGHTS, ful dissent, argued that the various documents leged copy as having been appropriated from clearly show that Gordon had not transferred the copyrighted work." away his renewal rights, especially in view of The "ordinary observer" test resulted in a principle that, in construing renewal assign- judgment for the plaintiff in the Key West ments, "the circumstances justifying the trans- case, in which the court refused to allow ex- fer of the right of renewal must be 'stronger pert testimony on the question of similarity than those justifying the transfer of the copy- since "here the differences in design are purely right, since the right of renewal is separate incidental and anyone who did not set out to from the original copyright." Although the detect the disparities might well overlook them point was not directly at issue in the case, the and regard the aesthetic appearances as the Gordon decision is authority for the proposi- same." However, in the Manes case, the tion that, where two authors wrote the words other decision involving a fabric design, Judge and a third wrote the music of a song, the Cannella found the dissimilarities between the renewal rights are to be divided into three designs more pronounced than the similarities, equal shares. and therefore denied plaintiffs motion for a preliminary injunction on the ground that infringement and Remedies "the total impressions created by the two de- signs are not substantially similar, and conse- At least a dozen cases during the year in- quently no confusion on the part of the buying volved an interpretation and application of public can be anticipated." the tests for determining copyright infringe- In the Fristot case Judge Frankel noted ment. More than half of these cases dealt that, in coming to his decision, he had "studied with designs and works of graphic art: dolls the polyethylene flora in evidence [artificial in Ideal Toy Corp. v. Fob-Lu Ltd., 360 F. 2d rhododendrons made in France and in Hong 1021 (2d Cir. 1966), and Unccda Doll Co. v. Kong], together with the parties' aesthetic, P B M Doll Co., 353 F. 2d 788 (2d Cir. 1965) ; metric, and horticultural contentions about textile fabric designs in Key West Hand Print them." He concluded that, although the two Fabrics, Inc. v. Serbin, Znc., 244 Supp. 287 F. flowers are "by no means identical in overall (S.D. Fla. 1965), and Manes Fabrics Co. v. appearance . . . the distinguishing character- Miss Celebrity, Inc., 246 F. Supp. 975 (S.D. istics are wholly insufficient to conceal the N.Y. 1965) ; artificial flowers in Fristot v. First substantial copying that adds up to infringe- American Natural Ferns Co., 251 F. Supp. 886 ment." The defendant in the Miller case (S.D.N.Y. 1966); wall plaques in Miller alleged that its wall plaques "were copied from Studio, Inc. v. Pacific Import Co., 39 F.R.D. Japanese originals and not from the plaintiff's 62 (S.D.N.Y. 1965) ; and commercial labels plaques." The court ruled that, although the in Gray v. Eskimo Pie Corp., 244 F. Supp. 785 burden of proving infringement is on the (D. Del. 1965). The plaintiffs in both the plaintiff, the latter "is not compelled to nega- doll cases lost because of insufficient similarity tive a claim which has not one iota of substan- between their products and those of the de- tiation"; since the defendant had failed to fendants. In the Ideal case the court held introduce copies of the Japanese plaques it that "to sustain a claim of copyright infringe- claimed to have copied, and since the plaques ment the claimant is required to demonstrate in suit were strikingly similar, the plaintiff a substantial similarity between the copy- was awarded summary judgment despite the righted work and the alleged copy," and that lack of any direct evidence that defendant had "the appropriate test for determining whether had access to the plaintiff's work. substantial similarity is present is whether an The tests of infringement applicable to in- average lay observer would recognize the al- formational or factual works were employed 24 REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 in three cases during fiscal 1966: Flick-Reedy Infringements of musical copyrights were Corp. v. Hydro-Line Manufacturing Co., alleged in Nordstrom v. Radio Corporation of 351 F. 2d 546 (7th Cir. 1965) ; Lapsleyv. The America, 251 F. Supp. 41 (D. Colo. 1965), American Institute of Certified Public Ac- and United States v. Rose, 149 U.S.P.Q. 820 countants, 246 F. Supp. 389 (D.D.C. 1965) ; (S.D.N.Y. 1966). In the Nordstrom case the and Smith V. Little, Brown & Co., 149 plaintiff claimed that one of the songs from U.S.P.Q. 799 (2d Cir. 1936). The Flick- the Broadway musical Milk and Honey in- Reedy case involved 2 pages of a 32-page fringed a copyrighted composition which he booklet containing data, formulas, and ex- had submitted to RCA for possible recording. planations concerning piston rods. In hold- The court denied defendant's motion for ing that the defendant had infringed the copy- summary judgment, noting that in certain cir- right in these 2 pages, the court emphasized cumstances access can be "proved by showing that the defendant had the same purpose as close similarities between the compositions in- the plaintiff in publishing its work, that it volved" and that, despite defendant's denial went beyond merely using the plaintiff's work of any possibility of access, the composer of the as "a starting point for further development accused song had been in the United States of the ideas expressed," and that, since the for 3 days while plaintiff's song was in the 2 pages copied were an important part of RCA office. The Rose case represents one of the bulletin, their use detracted from the value the relatively few actions for criminal infringe- of plaintiff's copyright. The Lapslry case, ment of copyright: a successful prosecution which involved a claim of infringement in a for the publication and distribution of so- manuscript entitled Budget Theory and Prac- called "fake books" consisting of the words tice, resulted in a holding that none of the and rilelody line of hundreds of compositions. three required elements of infringement-ac- The defense of fair use was considered in cess, substantial similarity, and copying-had two cases already discussed in other connec- been proved. Although the defendant's pub- tions: Mura v. Columbia Broadcasting Sys- lications contained words and phrases similar tem, Inc., 245 F. Supp. 587 (S.D.N.Y. 1965), to those of the plaintiff, the court held that and Rosemont Enterprises, Inc. v. Random this was "only natural" because "all of these House, Inc., 256 F. Supp. 55 (S.D.N.Y.), works deal with the same topic," and especially revJd, 366 F. 2d 303 (2d Cir. 1966). The because "of the technical and complicated Mura case held that the incidental use of 1aw- nature of the subject matter." fully purchased hand puppets on a television The plaintiff in Scott v. WKJG, Inc., 149 show represented a reasonable and fair use U.S.P.Q. 413 (N.D. Ind. 1966), claimed that which, "if anything, . . . would stimulate a 1962 episode on the Loretta Young Show sales . . . rather than prejudice them." The , infringed a play she had copyrighted in 1944. ruling of the lower court in the Rosemont liti- The court held that, since there was no direct gation was that the defendant's copying of cer- proof of access, "the plays must have a 'strik- tain material from articles on Howard ing similarity which passes the bounds of Hughes in Look magazine was an infringe- mere accident' " in order to establish infringe- ment ratRer than a "fair use." The court ment. The court considered that the similari- stated that "in general 'fair use' is limited to ties between the two plays were not note- cases where copyrighted material is used for worthy and, while agreeing that similar errors purposes of criticism or comment or in schol- in two works, accused author's past copying, arly works of scientific or educational value"; and an unusual speed in writing are all evi- it added that outside these categories "permis- dence of infringement, found this evidence sible fair use is severely restricted . . . par- insufficient in the present case. ticularly so where the borrowing and bor- REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 66 25 rowed works are of the same general nature, Two cases involving monetary liability for deal with the same subject matter, are pub- infringement of common law copyrights ap- lished primarily for commercial purposes, and peared to reach opposite conclusions. In are likely to compete with one another." Lapsley v. Anierican Institute of Certificd This doctrine was sprcifically rejected by the Public Accountants, 246 F. Supp. 389 (D.D.C. Second Circuit Court of Appeals in its rever- 1965), the court came to the conclusion that, sal of the decision. to recover for common law copyright infringe- Questions of the proper joinder of parties ment, the "plaintiff must establish that he suf- in an infringement suit were raised in Key fered actual pecuniary loss as the result of the West Hand Print Fabrics, Inc. v. Serbirz, Inc., alleged infringement, and may not rely solely 244 F. Supl~.287 (S.D. Fla. 1965), and upon the profits, if any, which the defendants Harm's, Inc., v. Theodosiades, 246 F. Supp. may have earned in connection with the pub- 799 (ED. Pa. 1965). The court in the Kcy lication." In contrast, the Pennsylvania West case ruled that, where a copyright has Superior Court in Silver v. Television City, been registered in the names of two clainiants, Inc., 148 U.S.P.Q. 167 (1965), ruled that both of them are indispensable parties in an "compensation cannot be refused because infringrment action. On the other hand, the proof of the exact amount of the loss or in- court in the Harms case permitted four pro- jury is not produced." The rule of damages prietors of copyright in different songs to be 'applicable to copyright infringement under joined as plaintiffs in an action against the the California Civil Code was construed in owner of the cafC where the compositions Read v. Turner, 148 U.S.P.Q. 453 (Cal. Dist. were performed and held the owner liable for Ct. App. 1966). infringement regardless of whether or not she The 1965 litigation involving Ethan Frome paid the performers. produced another important and exhaustive On February 28, 1966, the Chief Justice of decision in 1966-Davis v. E. I. du Pont de the United States transmitted to the Congress Ncmours &' Co. 249 F. Supp. 329 (S.D.N.Y. a report on amendments to the Rules of Civil 1966)-this time construing the statutory Procedure for the U.S. District Courts, in- damage provisions of section 101 of the copy- cluding special rules to be followed in copy- right law. Judge Feinberg held, among other right cases. The report (H. Doc. 391, 89th things, that a simultaneous network telecast of Cong., 2d sess.) notes that Rule 2 of the Copy- a play over 162 stations constituted a single right Rules, which had required that copies of act of infringement for which minimum statu- tory damages would be $250 rather than allegedly infringing and infringed works ac- $40,500, and this result was followed with company a complaint, is "unsupported by any respect to simultaneous AM and FM broad- unique justification," and is therefore re- casts in Baccaro v. Pisa, 252 F. Supp. 900 scinded as of July 1, 1966 (383 U.S. 1031 ). (S.D.N.Y. 1966). The damages and attor- In a note on page 77 of tht- report, the Ad- ney's fees recoverable in a case of an unauthor- visory Committee also expresses "serious ized recording of a musical composition were doubts as to the desirability of retaining Copy- considered in Norbay Music, Inc. v. King right Rules 3-13," which set out a detailed Records, Inc., 249 F. Supp. 285 (S.D.N.Y. procedure for seizing and impounding; since 1966) ; Judge Bryan relied on Copyright Of- Congress is considering a general revision of fice Circular No. 5 in support of his assrcn1l)- the law, however, "the Advisory Cornmittec tion that the obligation to file a notice of in- has rcfraincd from making any recommenda- tention to use a composition on recordings tion regarding Copyright Rules 3-13, but will arises only after a "notice of use" covering kcr]~the prohlcm under study." that composition has been recorded. 26 REPORT OF THE REGISTER OF COPYRIGHTS, 1966

Other Judicial Developments Some of the greatest uncertainty concerning the Sears and Compco decisions lies in wheth- Little happened in fiscal 1966 to clear up er they have overruled the Supreme Court's the confusion as to the scope of the Supreme 1917 decision in International News Service v. Court's 1964 decisions in Sears, Rocbuck C? Associated Press, 248 U.S. 215, upholding the Co. v. Stiffel Co., 376 U.S. 225, and Compco right to prevent the "misappropriation" of Corp. V. Day-Brite Lighting, Inc., 376 U.S. news reports. At least two cases during the 234. It now appears settled that, in a case year-Pottstown Daily News Publishing Co. V. like Key West Hand Print Fabrics, Znc. v. Pottstown Broadcasting Co., 247 F. Supp. 578 Serbin, Inc., 244 F. Supp. 287 (S.D. Fla. (E.D. Pa. 1965), and Bond Buyer v. Dealers 1965), where the work in question was pub- Digest Publishing Co., 154 N.Y. Law Journal lished and came within the subject matter of 16 (N.Y. Sup. Ct., Nov. 16, 1965), rev'd, 149 copyright and where there was no fraud or U.S.P.Q. 465 (App. Div. 1966) -indicate that "palming off," the courts will dismiss an un- the INS doctrine still has considerable vitality. fair competition claim under State law. Be- In the Bond Buyer case, plaintiff was suing in yond this, however, everything- remains the New York State courts for "piracy" of problematical. information disseminated by means of its pri- Bogene, Inc. v. Whit-Mor Manufacturing vate teletype network service called "Muni- Co., 253 F. Supp. 126 (S.D.N.Y. 1966), in- facts." Systematic copying of the informa- volved a Federal action for unfair competition tion was shown by the fact that defendant re- under the Lanham Act involving "biochure produced in its newsletter errors deliberately sheets" which serve as labels for garment bags. inserted by plaintiff in what it disseminated. The court rejected the defense that, under the The lower court, while expressing the opinion Sears and Compco decisions, "the unfair com- that plaintiffs' work product may be protected petition law of a state 'cannot prevent the under the INS doctrine of "misappropriation" copying of works unprotected by-design pat- and that nothing in the Sears and Compco ents and copyright which nevertheless are decision is "to the contrary," denied a tem- subject to such federal protection' " on the porary injunction because the invasion of ground that "plaintiff's claim is predicated not rights was insufficiently clear. This decision on state unfair competition law but upon a was reversed by the Appellate Division, Congressionally-created right of action for a squarely on the authority of the INS case and particular kind of unfair competition." Sig- without mentioning Sears and Compco. nificantly, the defendant also argued that "the The Federal Court in the Eastern District Lanham Act would be unconstitutional if'it is of Pennsylvania went even further in the interpreted to prevent a competitor from Pottstown case, an action by a Pottstown copying a copyrightable but uncopyrighted newspaper against a broadcasting station for label." The court sidestepped this funda- appropriation of its local news stories. The mental issue by holding that "whatever the question there was whether the Sears and merits of that contention may be," both the complaint and the particular section of the Compco cases had deprived the States of juris- Lanham Act are in substance seeking to pre- diction to grant relief in cases of this sort, and vent something else: "the use of any words the court held specifically that they had not. or symbols which constitute a false designation Judge Body regarded it as "entirely possible, of the origin of goods, not the mere act of even in the light of Sears, Roebuck, that con- copying another's label." In support of this gressional failure to protect 11urely factual assertion the court cited the Sears and Conlpco news accounts by the Copyright Act could be decisions and the Register's Supplementary deemed an expression of a limitation of fed- Report. eral power rather than a congressional policy REPORT OF THE REGISTER OF COPYRIGHTS, 1966 2 7 which allows the copyright of such items," and However, the court refused to enjoin the de- he found "appealing" the suggestion that there fendants "from renting their recording ma- is a distinction between "copying" and "ap- chines to otliers for the making of tapes of propriation" for this purpose. Failure to offer records owned by the customer and for their the plaintiff protectio~iin this situation, in the own use," holding that "it does not appear court's opinion, "\vould leave a glaring loop- that 'custom duplicating' here involves a Iiole in the law" which "men of conscience palming off." Another interesting case with would hardly condone." Judge Body specifi- overtones in the fields of both copyrights and cally rejected defendant's theory that "if "neighboring rights" was Republic. Produc- state unfair competition laws do not apply tions, Inc. v. American Federation of Musi- to items which could not be copyrighted, then cians of the United States and Canada, 245 a fortiori, state unfair competition laws can- F. Supp. 475 (S.D.N.Y. 1965) ; the court in not affect items which have been copy- that case held that insistence by a performers' righted." In his view, "it cannot be stated union on a clause in its contract with a motion categorically that for a state to afford addi- picture company prohibiting the showing of tional protection, through its unfair competi- motion pictures on television without the tion laws, to one's rights in an article which is union's consent was not an antitrust viola- capable of being either patented or copy- tion, and that the same was true of the union's righted, under federal law, \vould run counter later requirement for periodic payments into ti the congressional policy expressed in the a musicians' trust fund as the price:for mocli- Sears, Roebuck case." fying the prohibition. The confusion over what the Supreme One of the most important patent cases in Court meant in the Sears and Compco deci- recent years, Graham v. John Deere Co., 383 sions is no\vhere better illustrated than hv the U.S. 39, was decided by the Supreme Court protracted litigation involving Fellini's Nights on February 21, 1966, and promises to have of Cabiria, which produced another decision far-reaching effects on the entire field of in- during the year: Flamingo Telcfilm Sales, Inc. tellectual and industrial property in the v. United Artists Corp., 24 App. Div. 2d 953 United States. Perhaps of most immediate (First Dept. 1965). Here the New York interest to the coliyright bar is the Court's ap- court granted relief against unauthorized use parent acceptance of the theory, originally of the film on television on the novel ground propounded by former Acting Register of of conversion of a particular 16mm print. Copyrights Richard C. De Wolf, that the There was, however a strong dissent by Justice patent-copyright clause of the Constitution is Stener, who argued that the case is basically "balanded sentence," in effect giving Con- one of Federal copyright law. gress two separate powers: to promote the The first decision involving the current and progress of science (i.e., learning, knowledge) widespread practice of dubbing phonograph by securing for limited times to authors the records onto tape in cartridges for use in au- exclusive right to their writings, and to pro- tomobiles was handed down just before the mote the progress of useful arts by securing end of the fiscal year: Columbia Broadcast- for limited times to inventors the exclusive ing System, Inc. v. Cartridge City, Ltd., 155 right to their discoveries. The Supreme N.Y. Law Journal 10 (N.Y. Sup. Ct., June Court, in quoting the "specific constitutional 29, 1966). The court granted a temporary provision" from which "the federal patent injunction against "the unauthorized dupli- power stems," omitted all refcrence to "sci- cation or dubbing of [plaintiff's] recordings on ence," "authors," and "writings," and in a tape cartridges and selling them," something footnote citing De Wolfs book' stated : "The the defendants had already agreed to stop. provision appears in thc Constitution spliced 28 REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 together with the copyright provision, which Berne Convention and should participate in we omit as not relevant here." the conference as more than an interested observer. The Register of Copyrights headed a United International Developments States observer delegation at a meeting in Geneva from July 5 through July 14, 1965, The adherences to the Universal Copyright of the Committee of Governmental Experts Convention of two countries, Malawi and Yu- To Prepare for the Diplomatic Conference goslavia, became effective during the fiscal of Stockholm in 1967. In addition to the year, and two more, Kenya and Venezuela, Register and Harvey J. Winter, Assistant deposited their instruments of ratification, Chief of the Business Practices Division of bringing the membership of the convention to the State Department, who acted as alternate a total of 54 countries. Thc adherence of chairman of the delegation, those present from Venezuela, which became effective on Sep- the United States included Herbert Fuchs, tember 30, 1966, marks the first copyright re- counsel to the House Judiciary Committee, lations ever .established between the United Herman Finkelstein, general counsel of States and that country. The United King- ASCAP, Sidney Schreiber, general counsel of dom declared that the Universal Copyright the Motion Picture Association, and Mrs. Convention applies to Bechuanaland, Mont- Kelsey M. Mott, legal adviser of the Copyright serrat, St. Lucia, Grenada, and the Cayman Office. Islands. A table appended to this report At an earlier preparatory meeting of a com- shows the status of copyright relations be- mittee of experts in 1963, the main attention tween other countries of the world and the was focused on proposed revisions in the Berne United States. Convention dealing with presumptions as to In recent years the program for general the authorship and ownership of motion pic- revision of the U.S. copyright law and the tures. Although this issue remained impor- preparations for revision of the International tant, controversy at the Geneva meeting cen- Convention for the Protection of Literary and tered on the special needs of developing coun- Artistic Works (the Berne Convention, last tries with respect to copyrighted works origi- revised at Brussels in 1948) have been moving nating abroad, the confrontation between the at about the same speed along their individual needs of these countries and their desire to roads. These roads now show indications join the Berne Union. A strong movement of converging in the near future. The al- developed in favor of including special pro- ready intense interest of foreign copyright ex- visions in the convention to accommodate perts in our revision rffort, and the growing these countries with respect to the length of discussions of the pros and cons of U.S. ad- €he copyright term, translation rights, broad- herence to the Berne Convention, suggest the casting rights, and the use of copyrighted possibility that changes in both domestic law works for educational purposes. The com- and inteinational relationships may br at mittee approved some of these special provi- hand. It is too soon to predict the form these sions in principle, but its action was taken in changes will take, not only with respect to re- the face of a good deal of opposition and the visions in the Berne Convention itself but also basic issue seems likely to emerge as the most with respect to U.S. policy on adherence to a important problem at the Stockholm Confer- revised convention. However, it is evident ence. that the United States should prepare thor- The 8th session of the Intergovernmental oughly for the diplomatic conference to be Copyright Committee of the Universal Copy- held at Stockholm in June 1967 to revise the right Convention met in Paris from Novem- REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 29 ber 15 through November 18, 1965, in con- tory of international copyright relations, and junction with the 12th session of the Perma- the United States will have an important role nent Committee of the International (Berne) in determining the future course of that Union. The Register attended as the U.S. history. Representative to the Intergovernmental Taking "United States Copyright Protec- Copyright Committee, with Harold H. Levin, tion and the Berne Convention" as his sub- Chief.of the Business Practices Division of the ject, Professor George H. C. Bodenhausen, State Department, as his alternate; both the the Director of BIRPI, gave the Fourth An- Register and Mr. Levin attended the Perma- nual Jean Geiringer Memorial Lecture in nent Committee meeting as observers. New York City on March 16, 1966. Although Meeting jointly since the third session of he saw some technical differences between the the Intergovernmental Copyright Committee two systems of protection, Professor Boden- in 1958, the two committees have been able to hausen felt that these obstacles could be over- discuss common problems and plan joint ac- come and concluded: tion. Insistence on publishing the reports of each committee separately after the 1965 If H.R. 4347 and the Stockholm revision of the meeting, however, appears to be symptomatic Berne Convention are both enacted the two systems of recent strained relations between the sec- will have approached each other so closely that, retariats of UNESCO(responsible for the Uni- assuming the U.S. is sufficiently interested in acced- ing to the Berne Convention, it would be unthink- versal Copyright Convention) and BIRPI (re- able that means could not be found to bring about sponsible for the Berne Convention), resulting this accession. . . . in part from the pressures generated by the basic problem of accommodating the conven- This is a challenge that the United States can- tions to meet the needs of newly independent not afford to ignore, and during the coming and developing nations. It is important for year efforts will be made to take advantage the United States and all the other countries of opportunities that may not soon come again. who are parties to either of the conventions Respectfully submitted. to work toward resolving any differences be- ABRAHAML. KAMINSTEIN tween the two organizations. Register of Copyrights Within the next fiscal year the world will have passed another turning point in the his- November 16, 1966

International Copyright Relations of the United States as of December 31, 1966

This table shows the status of United States copyright relations with the 130 other independent coun- tries of the world. The following code is used: UCC Party to the Universal Copyright Convention, as is the United States. BAC Party to the Buenos Aires Convention of 1910, as is the United States. Bilateral Bilateral copyright relations with the United States by virtue of a proclamation or treaty. Unclear Became independent since 1943. Has not established copyright relations with the United States, but may be honoring obligations incurred under former political status. None No copyright relations with the United States 30 REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6

Country Status of copyright Country Status of copyright I relations relations

Afghanistan ...... None. Greece...... UCC, Bilateral. Albania...... None. Guatemala...... UCC, BAC. Algeria...... Unclear. Guinea...... Unclear. Andorra ...... UCC. Guyana...... Unclear. Argentina ...... UCC, BAC, Bilateral. Haiti...... UCC, BAC. Australia...... Bilateral. Holy See (Vatican City). UCC. Austria...... UCC, Bilateral. Honduras...... BAC. Barbados...... Unclear. Hungary...... Bilateral. Belgium...... UCC, Bilateral. Iceland...... UCC. Bhutan...... None. India...... UCC, Bilateral. Bolivia...... BAC. Indonesia...... Unclear. Botswana...... Unclear. Iran...... None. Brazil...... UCC, BAC, Bilateral. Iraq...... None. Bulgaria...... None. Ireland...... UCC, Bilateral. Burma...... Unclear. Israel...... UCC, Bilateral. Burundi...... Unclear. Italy...... UCC, Bilateral. Cambodia...... UCC. Ivory Coast...... Unclear. Cameroon...... Unclear. Jamaica...... Unclear. Canada...... UCC, Bilateral. Japan...... UCC. Central African Unclear. Jordan...... Unclear. Republic. Kenya ...... UCC. Ceylon...... Unclear. Korea...... Unclear. Chad ...... Unclear. Kuwait...... Unclear. Chile ...... UCC, BAC, Bilateral. Laos ...... UCC. China...... Bilateral. Lebanon ...... UCC. Colombia ...... BAC. Lesotho...... Unclear. Congo (Brazzaville). ... Unclear. Liberia...... UCC. , Congo (Kinshasa). .... Unclear. Libya...... Unclear. Costa Rica ...... UCC, BAC, Bilateral. Liechtenstein...... UCC. Cuba ...... UCC, Bilateral. Luxembourg...... UCC, Bilateral. cyprus ...... Unclear. Madagascar...... Unclear. Czechoslovakia...... UCC, Bilateral. Malawi...... UCC. Dahorney ...... Unclear. Malaysia...... Unclear. Denmark...... UCC, Bilateral. Maldive Islands...... Unclear. Dominican Republic. .. BAC. Mali...... Unclear. Ecuador...... UCC, BAC. Malta...... Unclear. El Salvador...... Bilateral by virtue of Mauritania...... Unclear. Mexico City Conven- Mexico...... UCC, BAC, Bilateral. tion, 1902. Monaco...... UCC, Bilateral. Ethiopia...... None. Morocco...... Unclear. Finland ...... UCC, Bilateral. Muscat and Oman. .... None. France...... UCC, Bilateral. Nepal ...... None. Gabon ...... Unclear. Netherlands...... Bilateral. Gambia ...... Unclear. New Zealand...... UCC, Bilateral. Germany...... Bilateral; UCC with Nicaragua...... UCC, BAC. German Federal Niger...... Unclear. 1 Republic. Nigeria...... UCC. Ghana...... I UCC. Norway...... UCC, Bilateral. REPORT OF THE REGISTER OF COPYRIGHTS, 1966 3 1

Country Status of copyright Country Status of copyright I relations relations - Pakistan...... Switzerland...... UCC, Bilateral. Panama...... I UCC,uCC. BAC. Syria...... Unclear. Paraguay...... UCC, BAC. Tanzania...... Unclear. Peru...... UCC, BAC. Thailand...... Bilateral. Philippines...... Bilateral; UCC status undetermined. Togo...... Unclear. Poland...... Bilateral. Trinidad and Tobago.. . Unclear. Portugal...... UCC, Bilateral. Tunisia...... Unclear. Rumania ...... Bilateral. Turkey...... None. Rwanda...... Unclear. Uganda...... Unclear. San Marino...... None. United Arab Republic None. Saudi Arabia...... None. (Egypt). Senegal...... Unclear. United Kingdom...... UCC, Bilateral. Sierra Leone...... Unclear. Upper Volta...... Unclear. Singapore...... Unclear. Uruguay ...... BAC. Somalia...... Unclear. Venezuela...... UCC. South Africa...... Bilateral. Vietnam...... Unclear. Soviet Union...... None. Western Samoa...... Unclear. Spain...... UCC, Bilateral. Yemen ...... None. Sudan ...... Unclear. Yugoslavia...... UCC. Sweden...... UCC, Bilateral. Zambia...... UCC.

Registrations by Subject Matter Classes for the Fiscal Tears 1962-66

C1.n 1 Subject matter of copyright 1 1962 1 1963 1 1964 1965 1 1966

Books (including pamphlets, leaflets, etc.)...... Periodicals (issues)...... (BB) Contributions to newspapers and periodicals. Lectures, sermons, addresses...... Dramatic or dramatico-musical compositions...... Musical compositions...... Maps ...... Works of art, models, or designs...... Reproductions of works of art...... Drawings or plastic works of a scientific or technical character ...... Photographs ...... Prints and pictorial illustrations...... (KK) Commercial prints and labels...... Motion picture photoplays...... Motion pictures not photoplays...... Renewals of all classes......

Total ......

*Adjusted figure. REPORT OF THE REGISTER OF COPYRIGHTS, 1 96 6

Schedule of Copyright Fees Before and After Copyright Law Was Amended, Efective November 26, 1965 - - - .- - --- .------I I / Former fees ( New fees

Registrations : General fee...... $4.00 Commcrcial prints and labels...... 6. 00 Renewals...... 2.00 Certifications: Additionalcertificate ...... 1.m Other certifications...... 2.00 Rec~rdationof documents: Basic fee ...... 3.00 Each additional page over six and each title over one...... I .50 Recordation of notice of use: Basic fee ...... 2.00 3.00 Each additional title over five in a single notice...... 50 .50 Recordation of notice of intention to use: Basic fee ...... None 3. 00 Each additional title over five in.a single notice...... None .50 Searches: Hourlyfee ...... 3.00 5. 00

Number of Articles Deposited During the Fiscal Years 1962-66

Clau Subject matter of copyright 1 1962 1 1963

Books (including pamphlets, leaflets, etc.). .... Periodicals ...... (BB) Contributions to newspapers and periodicals...... ,Lectures, sermons, addresses...... Dramatic or dramatico-musical compositions. . Musical compositions...... Maps...... Works of art, models, or designs...... Reproductions of works of art...... Drawings or plastic works of a scientific or tech- nical character...... Photographs ...... Prints and pictorial illustrations...... (KK) Commercial prints and labels...... Motion picture photoplays...... Motion pictures not photoplays......

Total......

I I I - ~ ~ - -. I I - ~ *Adjusted figure. REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 33 Number of Articles Transferred to Other Departments of the Library of Congress*

Class Subject matter of articles transferred / 1962 1 1963 1 1964 / 1965 1 1966

Books (including pamphlets, leaflets, etc.)...... Periodicals...... : . (BB) Contributions to newspapers and periodicals Lectures, sermons, addresses...... Dramatic or dramatico-musical compositions...... Musical compositions...... Maps ...... Works of art, models, or designs...... Reproductions of works of art...... Drawings or plastic works of a scientific or technical character ...... Photographs ...... Prints and pictorial illustrations...... (KK) Commercial prints and labels...... Motion picture photoplays...... Motion pictures not photoplays...... I Total. . Extra copies received with deposits and gift copies are included in these figures. This is the reason that in some categories the number of articles transferred exceeds the number of articles deposited, as shown in the preceding chart.

Statement of Gross Cash Rece$ts, Yearly Fees, Number of Registrations, etc., for the Fiscal Years 1962-66

....--. . ---..pp....---.- Gross Yearly fees Number of Increase or Fiscal year 1 receipts 1 earned 1 registrations decrease in registrations

Total REPORT OF THE REGISTER OF COPYRIGHTS. 1 9 6 6

Summary of Cojyright Business. Fiscal Year 1966

Balance on hand July 1. 1965...... $318.343.42 Gross receipts July 1. 1965. to June 30. 1966...... 1.624.081.45

Total to be accounted for ...... 1.942.424.87 Refunded ...... 855.568.46 Checksreturnedunpaid ...... 4.069 . 14 Deposited as earned fees'...... 1.446.467.52 Balance carried over July 1. 1966: Fees earned in June 1966 but not deposited until July 1966 ...... $123.991.06 Unfinished busineis balance ...... 107.971.80 Deposit accounts balance ...... 202.031.98 Card service ...... 2.324.91 436.319 . 75 -1,942,424.87

Number of Fees earned registrations

Commercial prints and labek at 86 each ...... Published domestic works at $4 each ...... Published domestic works at 86 each ...... Published foreign works at $4 each ...... Published foreign works at $6 each ...... Unpublished works at $4 each ...... Unpublished works at $6 each ...... Renewals at $ 2 each ...... RenewalsatS4each ......

Total registrations for which fee paid ...... Registrations made under provisions of law permitting registration without payment of fee for certain works of foreign o.rigin ......

Total registrations ......

Fees for recording assignments ...... Fees for indexing transfers of proprietorship ...... Fees for recording notices of intention to use ...... Fees for recording notices of use ...... Fees for certified documents ...... Fees for searches made ...... Cardservice ......

Total fees exclusive of registrations ......

Total fees earned ...... REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6

Gations of the Copyright Office

PricedCopyright Oficepnblicationr which may beobtainedftom Government Printing Ofice

Orders for all the publications listed below should be addressed and remittances made payable to the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C., 20402.

COPYRIGHT LAW OF THE UNITED STATES OF AMERICA (Title 17, United States Code), Bulletin No. 14. This is a pamphlet edition of the copyright law, including the REGULATIONSOF THE COPYRIGHTOFFICE (Code,of Federal Regulations, Title 37, ch. 11). 87 pages, 1967, paper, 35 cents. COPYRIGHT ENACTMENTS-Laws Passed in the Unimted States Since 1783 Relating to Copyright. Bulletin No. 3 (Revised). Looseleaf in binder. 150 pagn. 1963, $2.00.

REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW. Copyright Law Revision, House Committee Print. 160 pages, July 1961, 45 cents. COPYRIGHT LAW REVISION. PART 2-Discussion and Conlments on Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law. House Committee Print. 419 pages, February 1963, $1.25. COPYRIGHT LAW REVISION, PART 3-Preliminary Draft for Revised U.S. Copyright Law and Discussions and Comments on the Draft. House Committee Print. 457 pages, September 1964, $1.25. COPYRIGHT LAW REVISION, PART &Further Discussions and Comments on Preliminary Draft for Re- vised U.S. Copyright Law. How Committee Print. 477 pages, December 1964, $1.25. COPYRIGHT LAW REVISION, PART %I964 Revision Bill with Discussions and Comments. House Com- mittee Print. 350 pages. September 1965, $1. COPYRIGHT LAW REVISION, PART bSupplemmtary Report of the Register of Copyrights on the Gen- eral Revision of the U.S. Copyright Law: 1965 Revision Bill. House Committee Print. 338 pages. May 1965. $1. HEARINGS ON 1965 REVISION BIU. SUBCOMMITTEE NO. 3 OF THE HOUSE COMMITTEE ON THE JUDICIARY. May-September 1965. In 3 parts, including an appendix of letters and other statements, as well as a combined subject adname index. 2,056 pages. 1966. Part 1, $2; Part 2, $2.25; Part 3, $2. COPYRIGHT LAW REVISION. REPORT OF THE HOUSE COMMITTEE ON THE JUDICIARY. 89th Cong., 2d Sas., H.R. No. 2237. 279 pages. 1966. $0.65. 36 REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6

CATALOG OF COPYRIGHT ENTRIES. &per. Each part of the catalog is published in semiannual numbers containing the claims of copyright registered during the periods January-June and July- December. The prices given below are for the year. Semiannual numbers are available at one-half the annual price. Beginning with volume 20, number 1, 1966, Third Series of the Catalog, the annual subscription price for all parts of the complete yearly catalog will be $50. For the preceding 19 volumes of the Third Seriei, the annual subscription price for all parts will remain $20. The prices given in brackets are for the issues preceding volume 20.

part I-Books and Pamphlets Including Serials and Contributions to Periodicals------$15 [$51 art -Periodicas --5 [2] Parts 3-+-Dramas and Works Prepared for Oral Delivery------5 [z] Part 5-Music .-_------15 [7] Part 6-Maps and Atlases ...... 5 [I] Parts 7-IIA-Works of Art, Reproductions of Works of Art. Scientific and Technical Drawings. Photographic Works, Prints and Pictorial Illustrations------5 121 Part 11Eb-Commercial Prints and Labels...... 5 [2] Parts 12-13-Molion Pictures and Filmstrips ...... 5 [I] Annual Subscription Price, all parts------50 [20j

These catalogs are usually available 6 months after the close of a registration period. Although orders should be addressed to the Superintendent of Documents, the Copy' right Office will furnish information on catalog prior to 1962 upon request. ,

Catalog of Copyright Entries. Cumulative Series

MOTION PICTURES 1894-1912. Identified from the records of the United States Copyright Office by Howard Lamarr Walls. 92 pages. 1953. Buckram, $2. MOTION PICTURES 1912-1939. Works registered in the Copyright Office in Classes L and M. 1,256 pages. 1951. Buckram, $18. MOTION PICTURES 1940-1949. Another decade of works registered in Classes L and M. 599 pages. 1953. Buck- ram, $10.. MOTION PICTURES 1950-1959. Films of the Fifties registered in Classes L and M. 494 pages. Budcram, $10.

These four volumes list a total' of nearly one hundred thousand motion pictures produced since the beginning of the motion picture industry. REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 6 6 3 7 \ Copyright Law Ret~i~ionStudie~ Eighth committee print; Studies 22-25: COPYRIGHT LAW REVIYON. studies prepard The Damage Provbions of the Copyright for the Subcommittee on Patents, Trademarks, 23, The of the Damage Provisions and copyrights of the Committee on the Judiciary, of the Copyright Law: h Exploratory Study U.S. Senate. Committee prints published by the 24. Remedies Other Than Damages for Copy- Senate Committee, the preparation of which was right Infringement supervised by the Copyright Office. 25. Liability of Innocent Infringers of Copyright. 169 pages, 1960, 45 cents. First committee print; Studies 1-4: ~h~ ~i~~~~ of U.S.A. copyright Law R~- Ninth committee print; Studies 2628: vision from 1901 to 1954 26. The Unauthorized Duplication of Sound 2. Size of the Copyright lndustries Recordings 3. ~h~ Meaning of -Writings- in the copy- 27. Copyright in Architectural Works right Clause of the Constitution 28. Copyright in Choreographic Works. 4. The Moral Right of the Author. 116 pages. 1961, 35 cents. 142 pages, 1960, 40 cents. Tenth committee print; Studies 29-31: Second committee print; Studies 5 and 6: 29. Protection of Unpublished Works 5. The Compulsory License Provisions of the 30. Duration of Copyright U.S. Copyright Law 31. Renewal of Copyright. 6. The Economic Aspects of the Compulsory 237 Pages, 19619 60 cents. License. Eleventh committee print; Studies 32-34: 125 pages, 1960, 35 cents. 32. Protection of Works of Foreign Origir. Third committee print; Studies 7-10: 33. Copyright in Government Publications 7. Notice of Copyright 34. Copyright in Territories and Possessions of 8. Commercial Use of the Copyright Notice the United States. 9. Use of the Copyright Notice by Libraries 57 pages, 1961, 25 cents. 10. False Use of Copyright Notice. Subject lndex to Studies 1-34. 125 pages, 1960, 35 cents. 38 pages, 1961, 15 cents. Fourth committee print; Studies 11-13: 11. Divisibility of Copyrights -. 12. Joint Ownership of Copyrights 13. Works Made for Hire and on Commission. 155 pages, 1960, 45 cents. Bulletins Fifth committee print; Studies 14-16: DECISIONS OF THE UNITED STATES COURTS IN- 14. Fair Use of Copyrighted Works VOLVING COPYRIGHT. The series contains sub- 15. Photoduplication of Copyrighted Material by stantially all cases, as well as many Libraries 16. Limitations on Performing Rights. involving related subjects which have been decided 135 pages. 1960, 35 cents. by the Federal and State courts. Cloth. Sixth committee print; Studies 17-19: 1909-14(Bull. NO. 17)$1.75 1949-50(Bull. No. 27) 2.75 17. The Registration of Copyright 1914--17(Bull.No. 18) 2.10 1911-12(B~ll.No. 28) 2.75 1918-24(Bull.No. 19) 2.10 1953-54(Bull. No. 29) 2.10 18. Authority the of Copyrights to 1924-35(Bull. No. 20) 3.71 1955-56(Bull. No. 30) 2.71 Reject Applications for Registration 1931-37(Bull. No. 21 ) .71 1~7-18(&lll.No. 31) 2.75 19. The Recordation of Copyright Assignments 1938-39(Bull. No. 22) 2.00 191940(Bull. No. 32) 3.00 and Licenses. 1939-40(BuII. No. 23) 2.25 1961-62(B~ll.NO. 33) 2.71 1941-43(BuII.No. 24) 2.71 196344(Bull. No. 34) 2.71 135 pages, 1960, 40 cents. 1944-46(Bull. No. 20 2.21 19614(8ull. No. 35) In Seventh committee print; Studies 20 and 21: 1947-48(Bull. No. 26)$1.71 process. 20. Deposit of copyrighted Works Cumulative Index. 1909-1954 (Bulletins 17-29) $1.71. 21. The Catalog of Copyright Entries. Complete set, including lndex $46. 81 peg-, 1960, 25 cents. Price, are ~nbjerllo rhmge.

U.S. GOYERNMENT PRINTING OFFICE: 1861 0---20