US Copyright Office: ar-1976

8/14/2019 US Copyright Office: ar-1976

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ANNUAL R EPOR T OF THEREGISTER OF COPYR IGHTSFor the fiscal year ending June 30

and the transitional quarter July 1-September 30, 1976

L I B R A R Y O F C O N G R E S S 1 WA S H I N G T O N / 1 9 7 7


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Library of Congress Catalog Card Number 10-35017lSSN 0090-2845 Key title: Annual report of the Regiater of Copyrights

This report is reprinted from theAnnual Report of the L i b r a ~ n f C o ~g re rs

for the fiscal year ending June 30,1976and the transitional quarter July ldeptember 30,1976


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Conten. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .he Copyright Office 1. . . . . . .. . . . . . . . . . . . . . . . . . . . . .roduction and Services ; 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .dministration 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .taff Recogn ition 3Federal Women's Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Flex i the . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Reorganization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Automation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Copyrigh t Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Professional A ctivities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .Developments on Copyright Revision . . . . . . . . . . . . . . . . . . . . . . . . . . .

International Copyright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ONTU 10Utilitarian Designs as "Works of Art" . . . . . . . . . . . . . . . . . . . . . . . 11Commercial Prints and Labels and the Manufacturing Clause . . . . . . . . . . . . . 12Dual Bases for Renewal Registration . . . . . . . . . . . . . . . . . . . . . . . 12Typeface Designs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Subject Matter and Scope of Protection . . . . . . . . . . . . . . . . . . . . . . 13Publication and Notice of Copyright . . . . . . . . . . . . . . . . . . . . . . . 15Copyright Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Renewals, Assignments. Ownership. and Transfer of Rights . . . . . : . . . . . . . . 16Jurisdiction and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Postscript . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Tables:

. . . . . . . .nternational Copyright Relations of the U nited States as of June 30. 1976 21. . . . . . . . . .umber of Registrations by Subject Matter Class. Fiscal Years 1972-76 25. . . . . . . . . . . . . . . . . .umber of Articles Deposited. Fiscal Years 1972-76 25. . . . .umber of Articles Transferred to Other Departments of the Library of Congress 26Gross Cash Receipts. Fees. and Registrations. Fiscal Years 1972-76 . . . . . . . . . . . . 2 6Summary of C opyright Business . . . . . . . . . . . . . . . . . . . . . . . . . . 27. . . . . . .umber of Registrations by Subject Matter Class. July l a p t e m b e r 30. 19 76 28Number of Articles Deposited. July 1-September 30. 1976 . . . . . . . . . . . . . . . 8. . . . .umber of Articles Transferred to Other D epartmen ts of the L ibrary of Congress 29Cross Cash Receipts. Fees. and Registrations. July 1September 30. 1976 . . . . . . . . . 9Summary of C opyright Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 30


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Report to the Librarian of Congressby the Register of Copyrights

THE COPYRIGHTOFFICE

In one of W illiam Saroyan's stories a small boy fin dshimself in a library for the first time. He glanceswith awe in every direction: "All them books," heexclaims, "and something written in each one!"Saroyan's small boy would be even more awe-struck-possibly to the point of silence-if he couldenvision the staggering number of books and otheritems submitted for copyright each year with some-thing written in almo st every piece or attached to it.It is doubtful whether that small boy, or indeedmany of his presumably wiser and more sophisti-cated seniors, could comprehend the scope and thevariety evident in the materials submitted for copy-right in fiscal 1976. C onventional deposits likebooks and magazines are expected; others thatmight not immediately come to mind-for example,pho togr aph s and musical scores-can be visualizedwithout difficulty; but industrial designs, computerprograms, and the pet rock deposited for copyrightregistration might be less comprehensible. Indeed,any visitor to the Copyright Office in the fiscal year1976 might well have been astonished by the quan-tity and variety of deposits with something writtenin or about, painted or recorded on all of them .The Bicentennial year appears to have encouragedcreativity among Americans. More writers, com-posers, artists, and designers than ever before seemto have been inspired to undertake original workand to deposit t he results for copyright. There weresongs that might be intended to supplement or sup-plant the national anthem; books took on a patri-otic theme; games, puzzles, and designs of all

descriptions were displayed in red, white, and bluecolors. New note positioning for the study of rag-time and jazz and new sound recordings recognizedthe uniqueness of this original American music. Infact, submissions for registration in almost all of thefourteen broad classes of works in which copyrightmay be claimed u nder Title 1 7, United States Code,appropriately reflected this burst of patriotic pridein the nation's 200th year, pushing completedregistrations for copyright to an unpreced ented highof 410,969, an increase of 2.4 percent over the401,274 registrations recorded in fiscal 1975. Mate-rials received through copyright deposit and trans-ferred to other departments of the Library ofCongress for add ition to the collections and for ser-vice totaled 3 84,901 pieces.

PRODUCTION AND SERVICES

Almost every phase of copyright activity increasedduring fiscal year 197 6. Copyrigh t fees depositedinto the U.S. Treasury totaled $ 2 , 7 6 3 , w , a 13-percent increase over the $2,447,000 deposited infiscal 1975. The number of books, pamphlets, peri-odicals, works of art, motion pictures, filmstrips,sound recordings, and oth er materials su bmitted andexamined for registration and deposit rose to anunparalleled 436,49 0. Cataloging produc tion in-creased from 426,000 items in fiscal 1975 to46 3,0 00 individual pieces in fiscal 1976-an increaseof 8.68 percent. The mail unit processed 1,011,862


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2 REPORT OF THE REGISTER OF COPYRIGHTS, 1976pieces of mail, a 10.5 percent increase. Mail receivedwith p ayments enclosed ("cash" items) increased by11 percent. A total of 97,773 searches concernedwith materials in process were com plete d, 17 per-cent more than a year ago; 547,457 master indexcards were filed, a gain of 2.09 percent; 1,588,788cards in all categories were filed into various cata-logs, an increase of 29 perce nt.An organization can flourish only if its compo-nents are dynamic and energetic in meeting thedemand s placed upon them . It is heartening to beable to report that all divisions of the CopyrightOffice responded with enthusiastic effort to the

' year's massive workload: the Service Division, whichis the control center for the receipt and dispatch ofapplications and m aterials and the maintenan ce offiscal accounts; the Examining Division, which re-views a l applica tions for registration of claims tocopyright for compliance with the formalities andrequirements of the copyright statute and performslegal research into questions of law affecting theoperation of Copyright Office registration and re-cordation practices; the Cataloging Division, whichprovides bibliographic and physical description ofall copyrighted works registered or received inaccordance with the provisions of the law and pre-pares copy for th e cu rrent and cumulative issues ofthe Catalog of C opyright Entries; and th e ReferenceDivision, which responds to all inquiries concerningcopyright, furnishes search reports based on Copy-right Office records, invokes the demand provisionsof the copyright law when there has been failure tocomply with the legal deposit and registration re-quirements, prepares certificates and other legaldocume nts, and manages the department's informa-tion and publications program.This resoluteness and ability to cope resulted inunmatched production and performance. The long-

then1 more responsive to more inquiries. Despite therising workload and unusually heavy personnellosses in several units, sizable backlogs were elimi-nated or impressively reduced.The Public Inform ation Office responded to anal-time high of 53,409 telephone inquiries concern-ing copyright, many of them nonroutine and involv-ing complicated discussions, an increase of 49percent over the previous year. The number of visi-tors to the Copyright Office increased36 percent toa total of 5,626. Reference searches totaled125,800, an increase of 15 percent. Compliancesearches, 17,974 involving 304547 titles, doubledthe fiscal 197 5 figure. More than 1,26 4,600 pages ofdocuments were microfilmed under the depositmicrofilm preservation project.Three exhibits were mounted in the lobby duringthe fiscal year: Christmas and Copyright; Certifi-

cates of Registration, T hen and Now; and AmericanCentennial 1876 and the B icentennial 1976. TheCopyright Office joined the Patent and Tradem arkOffice in the ceIebration of Inventor's Day in Febru-ary 19 76 with a series of exhibits in th e Paten tOffice. On August 18, 1976, the Copyright Office'sfirst coin-operated photocopying machine was in-stalled in the Certifications and Docum ents Sectionfor the use of th e public in copying records andother data not protected by copyright.It bbdes well for the future to report tha t thisaccelerating workload could not have been dealtwith so successfully were it not for the active andcontinuing concern of the entire staff. In a depart-ment in which basic services to a growing clientelehave been likened, somewhat erroneously, to amot or vehicle registration procedure , it is no t possi-ble to report glittering performances in every phaseof the operation. Yet the steadfast perseverance ofthe staff and the enthusiastic approach to day-to-sought goal of currency in filing into the copyright day operations in every division merit the highestcard catalog became a reality, with the scanning, tribute and are a rewarding reflection of the pre-arranging, and filing of 1,38 0,615 compu ter- mium the Copyrig ht Office places on efficient andproduced cards. The fiIe of entries in this catalog effective dispatch of the public's business.from 1971 to date was expanded with a minimumof inconvenience to users. A new service of pro-viding subscribers with computer tapes of catalog ADMINISTRATIONentries was instituted.

Because correspondence in every unit exceeded all Concentrated attention to the task of strengtheningearlier records, word-processing m achines were performance by placing emphasis on maximum ser-intro duc ed in several areas, including the Office of vice to the public and on discovering new avenuesthe Register, to speed the preparation of letters and for achieving maximum efficiency continued to bemem oranda. Form letters were modified t o make the year's major objectives. All divisions were


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REPORT OF THE REGISTER OF COPYRIGHTS, 1976involved in an effort to progress toward fulfillmentof the goals first enunciated by the register of copy-rights in 1974-goals that recognize the importanc eof administrative teamwork, mutual trust, full equalopportun ity, superior work environment, and recog-nition of excellence in work accom plishme nt.An imp ortan t gain in fiscal 19 76 has been thescaff's increased sense of its own wo rth and t hedevelopment of an esprit de corps. Diyisions andsections have demonstrated imagination and flexi-bility in meeting changes in organization and workpatterns. Supervisors have shown initiative andvision in proposing and im plemen ting alterations t oestablished structures and routines. Copyright Of-fice managers are learning to work together harmo-niously as a team, and this cooperative spirit andgenerally high morale are reflected in the increasedquality and quantity of Copyright Office productsand services. There has been unparalleled coopera-tion in lending staff members to assist in areas bur-dened with backlogs and in staff understanding ofthe need for such assignments.The register and deputy register continued tomeet regularly with division chiefs and other keyadministrative officers for review of problems andplans and for communication of day-to-day happen-ings. The leadership of these briefings and debatesoften fell to the deputy register because of theregister's paramount task of working with the Con-gress on matters concerned with the proposed copy-right revision bill and because of her necessaryappearances before library, legal, and other profes-sional groups w ith a vital interest in th e myriad con-troversial issues stemming from the proposedrevision. Four orientation seminars were held, withthe register presenting at each session a full reviewof the basic purposes of the Co pyright Office and itsreliance upon an informed, able staff and in turn theCopyright Office's responsibility t o provide properwork environment, incentive, and fair treatment toeach staff member. Staff committees examined pro-motion policies, explored the use of flexitime, andcontributed to further development of the enthusi-asm and sense of accomplishment called for by theobjectives.Staff RecognitionIt is not possible in this brief review to cite themany individual officers and staff members whose

quality service has earned recognition for the Copy-right Office. It should be noted, however, that BelleShoub, supervisor of the Accounting Unit, ServiceDivision, who retired in December 19 75 after thirty -five years of service, was presented the Library'shighest honor-the Distinguished Service Award-inrecognition of her exceptional service.

Federal Women's ActivityEmployment and promotion of women continuedto be of concern. On June 30, 1976, there wereapproximatel thirty more women than men in theCopyright orice, with women still at lower gradeaverages than men-a situa tion that can change asmore women prepare and apply for higher adminis-trative positions. Of the twen ty-tw o personspromoted in fiscal 1976 in the Cataloging Division,for example, fourteen or nearly two-thirds werewomen. Five part-time positions were established inthat division to provide employment opportunitiesfor women unable to work, full time. Mary Lyle,Joan Doherty, and Marlene Morrisey completedtwo-year terms on the Library of Congress FederalWomen's Program Committee and initiated effortsto give more women a greater opportunity for pro-fessional development and official representation ofthe Copyright Office at national and internationalconferences.

TrainingMore than 150 staff members of the Copyright Of-fice took advantage of the six ty-two courses offeredby the Library's Training Office or the Civil ServiceCommission during the year; other staff memberscompleted courses at metropolitan universitiesunder the tuition support program. Nearly one hun-dred staff members completed a three-day course oncopyright law essentials and Copyright Office proce-dures. Imaginatively designed and taught by WaldoMoore, chief of the Reference Division, this coursegave all participants a deeper understanding of theimportance of their work as well as its relationshipto other activities and to the overall mission of theCopyright Office. Sixty-four supervisors have beenor will be enrolled in the .Library's course on inter-viewing and counseling techniques. Tours of thePatent and Trademark Office were arranged fo r staff


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REPORT OF'THE REGISTER OF COPYRIGHTS, 1976

members needing some knowledge of its activity.Basic instructions in correspondence preparation,grammar review, and com puter science were given inor near the C opyrigh t Office; Jean Prieto, Catalog-ing Division, taught a course in beginning Spanish,and Felicia Healy and Joseph Miranda of the Exam-ining Division one in music theory for music techni-cians in that division. All supervisors receivedtraining in labor-management relations. Two staffmembers participated in the Library of Congressintern program and another was selected for the1976-77 program. Cross training between the Cata-loging and Reference Divisions gave catalogers moreunderstanding of the use made of the catalog entriesthey prepare and brought to reference searchersdeeper insight into the elements involved in prepara-tion of catalog entries.

With the experimental installation of flexitime inthe Cataloging Division in January 1976, the Copy-right Office served as a pilot p roject for othe r de-partments in the Library desiring to follow suit.Under the plan, adop ted after extended staff discus-sion, employees may start work at any timebetween 7:0 0 and 9:3 0 a.m. and leave work eightand one-half hours later. All members of the staffmust be at work during the periods 9:30 to 11:30a.m. and 2:00 to 3:30 p.m. Except for this coretime, staff members are free to arrange individualschedules, which may vary from day to day. Theexperiment from the beginning evoked a noticeableuplift in staf f morale and productivity. Added bene-fits have been a significant increase in productivityas well as the elimination of tardy arrivals and spe-cial schedules with their attendant complicatedrecord keeping. The success of the experimentprompted the register of copyrights to recommendadoption of flexitime throughout the CopyrightOffice except for those work stations that must bestaffed throughout the workday.

ReorganizationReorganization of the Examining Division, approvedby The Librarian of Congress in May 1 976 , was theculmination of months of study and experimenta-tion on the part of the central planning staff in

coordination with division and section managers.This reorganization provides a supe ms ory structurebased on teams that is suitable to the present work-load and is easily expandable to meet the volumeanticipated with the eventual implementation of theproposed copyright revision bill. Specific provisionsof the reorganization included an addition al step inthe promotio n ladder for copyright technicians, theformation of teams under the supervision of teamleaders, the transfer of attorneys from the divisionoffices to the sections, the formation of a new Mul-timedia Section, and the revision of practices forappeals from denials of registrability of claims tocopyright.Well over 400,000 applications are now receivedannually. Consequently, this restructuring of theExamining Division has been aimed at providing forthe systematic flow of work through the division,professional attention where it is most needed, andfuller op po rtu nit y for paraprofessionals. AR ulti-mate result will be greater ease in meeting themassive increase that will come with the implemen-tation o f the anticipated revised copyright law. Thenew Multimedia Section will concentrate upondeposited wo rks falling under several different s tatu-tory classification categories. In addition, soundrecordings, microfilms, motion pictures, and anyother materials requiring special equipment will beexamined in the Multimedia Section.

Planning has begun for a reorganization of theService Division. Here, too few supervisors for thesize of staff and volume of work have rendered thespan of control unsatisfactory. The preliminaryplans call for splitting the division into two parts: aProcessing Division, responsible for current in-process functions, and a Records Division, responsi-ble for coordination and execution of the CopyrightOffice's records retention and maintenance policies.Although formulation of specific plans must neces-sarily await automation of in-process and fiscal con-trol functions, immediate reorganization of the MailUnit under the team plan has been recommended.The Cataloging Division is also contemplating ateam structure to further the prompt handling ofthe current workload and to meet the anticipateddemands of the revision bill. The need for individualcatalogers to understand specifically what is ex-pected from them in terms of production and tohave more definite criteria for retention, prom otion,or recognition of outstanding merit led to develop-ment of a system of peer group averages for quan-


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REPORT OF THE REGISTER OF COPYRIGHTS. 1976tity and quality of cataloging production. This pro-cedure embraces the use of statistical productiongraphs, compiled at three-month intervals, that giveeach staff member a visible record of the peaks,lows, and median for the section. Thus, each cata-loger can easily compare his or her performance tothat of other staff members. These data then pro-vide the basis for staff counseling and assure equityin personnel judgments and recommendations.Other administrative innovations undertaken toimprov e service included the installation'on April14, 1976, of a night depository box in the lobby ofthe Copyright Office, available to the public untilmidnight. Quick receipt and date-stamping of appli-cations for registration, works deposited for registra-tion, documents to be recorded, and fees deliveredon business days after the Copyright Office closesare thus assured.

The Copyright Office is, of course, not withoutsuch common day-to-day administrative problems assecurity, space, and staff turnover, to name a few.The disappearance of a few deposit copies is embar-rassing, and personnel security measures have had tobe strengthened. Solutions to cramped space situa-tions have meant the disappearance of open areasthat added to the attractiveness of the work envi-ronment. Space at the Pickett Street depository tomeet projected Copyright Office requirementsthrough 19 79 partially alleviated the critical needfor storage of deposits.Rs#utbnsst in r deptmat 1606bd at I#I,

~ c em n ttrc uibrrpy'8gdnpiprtbult8hrl,~dwayr be a diftPeulty.The copyright0-pazed in g p & d mruitment activities rimrri atlocatin8 qualified minodty4 omenM n t y - t w o wotk-study employtes w N C ~ th*copyright 0- for w g ort*, of tenTAP p a d w wen fiUed, with ths nto be f i k l during tht fiscal 1976truwun qw-9

AUTOMATIONThe successful autom ation of cataloging proceduresthrough the Copyright Office Publication and Inter-active Cataloging System (COPICS) not only in-c~eased roductivity but also brought some person-nel economies and quick production of the Catalogof Copyright Enm'es, cards for the copyright cardcatalog, and cards for distribution to subscribers.

This automa ted activity, which provides index. termsof authors, titles, and copyright claimants as well asbibliographic description of each it em , brings underbibliographic control a vast quantity of intellectualworks and constitutes the largest single on-line cata-loging activity in the world. By the end of the yearmost of the critical problems mentioned in lastyear's annual report had been alleviated: telephonecommunications with the Library's central com-puter had improved, computer programs had beenmodified, and the staff had adjusted t o the mecha-nized procedures. Planning is continuing toward theultimate goal of a retrieval system using SCORPI O.The addition of periodical registrations toCOPICS marked the end of a manual system inwhich each new issue was posted by hand o n a cardbearing the title of the periodical. Now title entriesare maintained on-line in the auto mated svstem andcatalogers can have the desired title dispiayed on acathode ray screen t o p ost the individual issues inproper sequence.The major effect of the periodical system, how-ever, is in production. Under the manual system,data from some ten thousand title cards were typedup annually, a process requiring hundreds of man-hours and up t o a year or longer t o complete. Theresulting cards then had to be edited and interfiledso that final copy could be prepared for printing.Under the automated system, the computer pro-duces camera-ready copy immediately at the closeof each six-month cataloging period. Now i t is alsopossible to print out at six-month intervals a listingof all new titles as well as all International StandardSerial Numbers new to the system, together withthe issue number and date in which each title firstappeared. This listing is then available for use in theLibrary's Serial Record Division.With the operations of the Cataloging Divisionentirely automated except for a few remainingperipheral tasks, the staff will be able over the nextseveral years to con centrate on exploiting the capac-ity of the computer to meet the enlarged and diver-sified workload expected under the copyrightrevision bill and t o produce cataloging informationmore rapidly and in a wider variety of formats tomeet the requirements of users. Indeed, this expan-sion has already commenced. In April A S C A P beganto subscribe to the weekly computer tape of allcatalog records of published music. Experimentshave gone forward also in automated production ofcatalog entries on microfiche.


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REPORT OF THE REGISTER OF COPYRIGHTS, 1976Class N (sound recordings) was chosen as the ini-tial sample for experimentation with microfichebecause of the potential benefit to the Music Divi-sion, which at present lacks adequate bibliographiccontrol over the thousands of recordings added toits collections each year. .At the end of the year The Librarian's externaladvisory group composed of representatives from alltypes of libraries had begun an examination of theways in which the cataloging produced by the Copy-right Office could be made more useful tgiibrariesthroughout the United States and in other parts ofthe world. Among the ideas under discussion are thedegree to which the Gztalog of Copyright Enm'esmight fit in to a national bibliography of the UnitedStates and the possibility that, with minor changesand adaptations, the catalog entries for multimediamaterials might fill the serious gap that now existsin the control of multimedia material catalogedrepeatedly by thousands of individual librariesbecause of the lack of a national system.An internal staff committee has examined poten-tial problems and computer system changes thatmight be required t o follow the rules for InternationalStandard Bibliographic Description in copyrightcataloging entries. Reliminary findings indicate thatthis procedure could be possible without significantaddition to w orkload or major changes in computerprogramming. This step is the first toward accom-plishing some of the objectives envisioned by theadvisory committee on Libraries and toward makingthe Copy right Office responsive to innovations tha tmay be proposed.The Planning and Technical Office focused itsresources on effects of copyright law revision andautomation, both of critical importance for theyears ahead. A primary goal in the Copyright Of-fice's automation plans for fiscal 1977 is the devel-opment of an automated in-process and fiscalcontrol system. This requirement is urgent in viewof the inability of the manual system to handle thecontinuing rise in registrations without delays andbacklogs. There is also a continuing need for thePlanning and Technical Office to have better controland knowledge about work in process at any giventime. The Planning and Technical Office has set as afirst priority the development and implementationof an in-process and accounting system that willrecord al l material received, track its path throughthe registration process, provide on-line search capa-bility through the use of video terminals, generate

accounting reports and production statistics, andcall attention to problem cases retained withoutaction a t specific work stations. A statement of pre-liminary specifications for this system was preparedand submitted to division chiefs on June 30. 1976.Although this document addressed the currelit func-tions and workflow, it also took into account theexpected continuing advance in registrations. Theanalysis will form the basis for determination ofhardware requirements.Equipment installed in or ordered for the Copy-right Office during the year, in addition to that inthe Cataloging Division, included terminals in theService and Reference Divisions for use in referringto registration info rmation subsequent t o catalogingand a video terminal and printer to give the generalcounsel of the Copyright Office and his staff accessto data bases elsewhere in the Library of Congressand in the executive branch agencies.COPYRIGHT PUBLICATIONSIn addition to the publications already mentioned,information circulars were reprinted as requests forthem mounted. Those giving information concem-ing copyrigh t for works of art and pictorial, graphic,and sculptural works were redesigned in a modernformat as part of a program instituted by the Refer-ence Division to give consistency, clarity, and attrac-tiveness to all Copyrigh t Office circulars.Decisions o f the United States Courts InvolvingCopyright, 1973-1974,compiled and ed ited by Ben-jamin W. Rudd, former librarian of the CopyrightOffice, appeared in 1976. Kelsey Martin Mott, uponconclusion of her consultant contract, submittedfinal copy for the 197 6 supplement to the Biblwrmphy on Design Protection, which was subse-quently published.PROFESSIONAL ACTIVITIESRelationships with ot her dep artments of th e Libraryof Congress were strengthened during the past fiscalyear. The Copyright Office was represented on theLibrarian's Task Force on Goals, Organization, andPlanning and on several subcommittees of thatbody. Other staff members paiticipated in legalsymposia an d seminars. Phillip Gill had a part in thecopyright session at the National Association ofEducational Broadcasters' convention and Richard


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REPORT OF THE REGISTER OF COPYRIGHTS, 1976Glasgow spoke before the American Bar Associa-tion's copyright affairs comm ittee.Barbara Ringer, the register of copyrights, re-sponded to many requests from library, legal, andothe r professional groups eager to have direct infor-mation abou t the prospects for and contents of thecopyright revision bill. Among these were addressesbefore the Rochester (New York) Regional Re-search Library Council, the American Bar Associa-tion, the American Library Association's LegislativeCom mittee, and the Practising Law Institu te in NewYork. On March 25, 1976 , the register of copy rightshad the honor of delivering the sixth Donald C.Brace Memorial Lecture before the CopyrightSociety af New York. Lewis Flacks, special legalassistant to the register, Jon Baumgarten, generalcounsel, and o ther staff members represented her onother occasions when the press of legislative busi-ness prevented her personal participation in majorprofessional meetings.On July 17 , 1976 , the register of copyrights waspresented the Constance Lindsay Skinner Award"for distinguished con tributions to the world ofbooks" by the Women's National Book Association.This award has been made annually by vote of a l l

W N B A members since 19 40 to a "living A mericanbookwoman who has made an enduring and uniquecontribution to the world of bo oks and t o the largersociety thro ugh books." Because of a tie vote the1976 award was presented also to Frances Nee1Cheney, professor emeritus, Peabody College Li-brary School, and Helen Honig Meyer, Dell Publish-ing Company.Th e Copyright Office was host for several mo nthsto two Unesco fellows studying U.S. copyright pro-visions and procedures-M. L. Chopra, dep uty regis-trar (Copyright), India, and R. Consul Korale.deputy registrar of companies of Sri Lanka.

DEVELOPMENTS ON COPYRIGHT REVISIONWith the passage of the copyright revision bill, S.22, by the Senate on February 19 , 1976, and favor-able action on H.R. 2223 by the Subcommittee onCourts, Civil Liberties, and the Administration ofJustice of the House Judiciary Committee onAugust 3, 197 6, the revision of the 19 09 copyrightlaw made further progress. The register has assistedthe sub comm ittee at its request in the extensive ses-sions concerned with review and mark -up of t he bill,

and the Copyright Office's legal staff has been avail-able to the Congress for consultation. In late 1975and early 197 6, the register subm itted to the Housesubcommittee the final portions of the draft"Second Supplementary Report of the Register ofCopy rights on Co pyright Law Revision." This re-port, in nineteen chapters, summarizes and discussesthe legislative history of the copyright revision billand identifies its areas of controversy. It is expectedthat the report will be published by the House Judi-ciary Committee. If and when the revision becomesa reality, the occasion will represent a historicadvance in the story of American copyright and thebeginning of a new ag ein that saga. Th e delays metby the proposed revision in former years have led toan atmosphere of understandable concern andintense pressures that can only be lifted by enact-ment of a new law.The revision bill, t o review briefly its generalframework, will substitute a single federal systemfor the present dual comm on law and federal systemdivided by the act I$ publication. This sweepingchange means that every work that is eligible forcopyright will come within federal statutory copy.right from the moment of its fixation. Additionally,an entire new range of unpublished and publishedmaterials will be eligible for statu tory pro tection.The term of copyright protection will be the lifeof the aut hor plus fifty years-a major breakthroughin American copyright law and one that will nbt-only put the United States in general parity with therest of the world but may also advance the pros-pects for our acceding t o th e Berne Copyright Con-vention. There will be a reversionary right in theauth or and his heirs, allowing recapture of the copy-right through termination of existing assignments.Other broad changes involve ownership of copy-right, relaxation of many of the rigid rules regardingnotice, new deposit and registration requirementsthat include a radio and television archive, derivedthrough copyright, for the Library of Congress,redrawn infringement remedies, and easing andphasing out of the manufacturing clause. Whileexpected compromises have had to be made-anecessity anticipated because of the pressures fromthose representing special interests based on moderntechnology-the basic objective of th e bill is prote c-tion for the creator of intellectual property.The major areas of controversy have been dis-cussed in earlier annual reports. Perhaps it is suffi-cient here simply to list them once again:


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REPORT OF THE REGISTER OF COPYRIGHTS, 1976Size of the mechanical royaltyLiability for performance of music by coin-operatedphonorecord machines (the so-called juke-boxexemption)Comp ulsory licenses for cable televisionRoposals for a royalty upon broadcasting of soundrecordingsExemptions urged fo r public broadcastingPhotocopying in education and librariesIt is heartening t o be able to report t hat after weeksof deliberation in the House subcommittee theseissuis, including the difficult questions concernedwith compulsory licensing, were settled harmoni-ously if not to the entire satisfaction of all thespecial interests. The register, while recognizing thekevitabilty of compromise, took the consistentposition that in our rapidly changing technologicalsociety extrem e care must be taken to ensure thatindependent, free authorship is preserved as a nat-ural, vital resource.Every indication is that favorable action by thefull House Judiciary Committee on the revision billwill be completed in early September. The necessityfor prom pt House action and a conference comm it-tee to resolve differences between S. 22 and H.R.2223 placed the revision bill under a tight scheduleduring this election year. The optimism that theCongress will m ee t. this challenge has been re-inforced by the prompt Senate action on S. 22,under the leadership of Senator John L. McClellan,and t he remarkably comprehensive and careful workof t he House su bcom mittee , headed by Represen ta-tive Robert Kastenmeier. At the opening of the sub-com mi ttee hearings in May 1975 , former register ofcopyrights Abraham L. Kaminstein (one of the chiefarchitects of revision) alluded to the dedication ofthe House subcommittee that considered the revi-sion bill in 1965.The progress of the revision bill has intensified theneed for advance planning for new functions andthe enormous workload that will accompany imple-men tation, which could be in 1978. A coordinatingcommittee, composed of the general counsel of theCopyright Office, its executive officer, and the chiefof the Planning and Technical Office, was organizedin April 19 76 to begin this task.

The new law, when it finally comes, will augmentthe work of the Copyright Office in a number ofways. Its protection of a wider variety of creativeworks will mean a substantial increase in the volumeof registrations. Anticipated provisions that requirethe Copyright Office t o collect and distributeroyalty fees would be a new function. Secondarytransmissions by a cable system of a primary trans-mission made by a broadcast station licensed by theFederal Communications Commission will be sub-ject to compulsory licensing and the register ofcopyrights charged with collecting the license fees.Licenses that must be provided by the CopyrightOffice will also be required for operators of-coin-operated phonorecord machines. Guidelines, newprocedures, and revised regulations will be requiredfor the administration of each of these new orenlarged function s.

INTERNATIONAL COPYRIGHTSince the joint revisions of the Universal and BemeCopyright Conventions in 1971, the internationalcopyright activities of the United States have fo-cused primarily on three areas: integration of newtechnological developments into the structure ofcopyright law; exchange of information and facilita-tion of copyright licensing with developing states;and continuation of the development of copyrightrelations with new members of the internationalcopyright com mun ity, particularly the U S S R .Problems generated by the growth of new tech-nologies were considered at several internationalmeeting3 this year. L. Clark Hamilton, the deputyregister of copyrights, was chairman of a meeting inJuly 19 76 in Bellagio, Italy, concerned with theimpact of telecommunications developments uponinternational intellectual property law. Organizedby the International Broadcast Institu te, the confer-ence brought together copyright and communica-tions policy makers from North America andWestern Europe; their discussions were framed by apaper presen ted b y Claude M asouye, of th e WorldIntellectual Property Organization (WIPO).

Mr. Ham ilton also participate d in the annual con -ference of the International Broadcast Institute,which met in Cologne, Germany, from August 3 1 toSeptember 4, 1975. The theme of the conferencewas "The Global Context for the Formation ofDomestic Communications Policy." Finally, be-


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REPORT OF THE REGISTER OF COPYRIGHTS, 1976tween August 2 9 and September 4, 1976 , heattended the annual meeting of the institute, held inKyoto, Japan, where discussions centered upon theformulation of proposals for comprehensive legaltreatment of international communications.These three meetings represent fresh attempts tocome .to grips, in a unified fashion, with domesticand intern ational legal questions which, h eretofore,have tended to be treated in a piecemeal fashion.Questions of copyright and regulation of telecom-munications traffic and of the program content ofinternational satellite broadcasting have emerged aslegal issues that sharply divide the internationalcommunity. The activities of the I s r , a new organi-zation in the field, have contributed substantially tothe international dialogue on these crucial problems.

The other area of new technology which hascreated special interest in international copyrightcircles is that of computer software. In July 1975,Mr. Hamilton participated in a conference of non-governmental experts, convened under the auspicesof W I P O in Geneva, to consider solutions on theinternational level to problems respecting the pro-tection of computer software. The work of thiscomm ittee was continue d in May 19 76 and has cen-tered upon the appropriateness of copyright forsoftware protection and the feasibility of an intern a-tional registry for software. Subsequent to the July1975 software meeting, Mr. Hamilton visited theCenter for Research in the Social Sciences, Unit forLegal Research in Computers and Communications,at the University of Kent at Canterbury, England.The e ffort to continu e bridging gaps between law,policy, and commercial practices that exist in thecopyright field between developing and developedstates continued. Of particular significance was theJuly 1975 meeting of Unesco's Copyright Infor-mation Center. The center, established to facilitatecopyright licensing between developed and devel-oping states, as a part o f the 19 71 revision of theUniversal Copyright Convention, convened thismeeting to draft a model contract for the licensingof translation and reprint rights to be used in trans-actions with developing states. The deputy registerof copyrigh ts attended this meeting with representa-tives of the American publishing community andthe Association of American Publishers.The importance of simplifying licensing proce-dures was underscored by questions raised duringthe December 197 5 Intergovernmental CopyrightCommittee meeting in Geneva as to the success of

the 1971 ucc revisions in meeting the needs ofdeveloping countries. The United States, in partic-ular, has been com mitt ed t o these revisions as theprimary vehicle for assisting developing states tosecure copyrighted works for their educational anddevelopmental programs, while maintaining andfostering the growth of copyright recognition inthese same areas. The work of the Copyright Infor-mation Center in devising model contracts andacting as information broker in this field has beensignificant. These activities, with the programs ofthe U.S. Government Advisory Committees onInternational Book Programs, whose biannual meet-ings in Washington the Copyright Office has at-tended, represent some of the most effectivevehicles for pursuit of th is policy.

The December 1975 meeting of the Intergovern-mental Copyright Committee also considered anumber of other important questions, includingcable television, reprographic reproduction of copy-righted works, video recordings, computer uses, anda model copyright law for developing countries. Ofparticular interest was the adoption by the Inter-governmental Copyright Committee and BerneExecutive Committee (which meet jointly onceevery two years) of a recommendation on repro-graphic reproduction , drafted in June of 197 4 by ajoint subcommittee of the two committees meetingin Washington, D.C. These recommendations repre-sent the culmination of at least seven years ofefforts to determine the feasibility of an interna-tional instrument treating reprographic reproduc-tion. The United States was represented at theIntergovernmental Copyright Committee meetingsby Harvey Winter of the State Department's Officeof Business Practices, Dorothy Schrader of theCopyright Office, and the deputy register.From August 16 to August 2 1, 1976 , the registerof copyrights, Barbara Ringer, participated in thesecond East Asian and Pacific Copyright Seminar,held in Sydney, Australia, bringing together copy-right specialists from throughout the region. Theseminar included a paper on performer's rights, pre-sented by the register.

Another international conference touching onareas which affect our copyright relations withdeveloping states concerned double taxation. InNovember 1975 , Dorothy Schrader was chairman ofthe U.S. delegation to the meeting of a Comm itteeof Governmental Experts on the Double Taxationof Copyright Royalties Remitted from One Country


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REPORT OF THE REGISTER OF COPYRIGHTS, 1976to Another, held in Paris at Unesco's invitation.The general problem of double taxation and thepracticability of a multilateral treaty to deal withthe problem has existed for some time. The discus-sions are intended to provide Unesco with a basisfor the preparation of a draft text for a possibleconvention on the subject. It is expected that thistext will be the basis for a second meeting of ex-perts in December 197 6, followed by a govern-mental conference in 1977.The final area of activity on the internationalfront touched upon U.S. relations with new mem-bers of the international copyright community,principally the Soviet Union.Since Soviet adherence to the Universal CopyrightConvention in 1973, Soviet and American Copy-right officials have met three times, in the U S S Rand in the United States. Upon the invitation of theSoviet Copy right Agency (V A AP), representativesof the Copyright Office met in Moscow betweenJuly 10 and 17, 1 976, to continue discussions oncopyright relations between the two countries. Thediscussions included explorations of problems con-cerning computer software, designs, the role ofV A A P in carrying out the provisions of the FinalAct of Helsinki, and government publications. Thisannual review of issues arising out of copyright rela-tions has reflected a spirit of universality; bothcountries can take pride in the high sense of respon-sibility that has marked the progress of the conver-sations to date.Although it would be incorrect to consider LatinAmerican nations as "new" members of the intema-tional copyright community, for they have beenmembers of the Berne and Universal Conventionsfor some time, they have emerged in the last fiveyears as forceful spokesmen and creative policymakers in international copyright. Generally, theirjurisprudence is a practical mixture of classic Euro-pean copyright principles tempered by indigenousexperience and of their needs as developing states.Their ability to communicate with equal relevanceto developed and developing states has enabledLatin American state s to emerge as pivotal figures ininternational copyright.The opportunity and challenge of renewed U.S.interest in its relations w it h 'h ti n America has beenone of the most exciting developments in the lastfive years. Fiscal 1 97 6 saw the emergence of a newinternational copyright organization, the Inter-American Copyright Institute, whose first meeting

was held in SHo Paolo, Brazil, in September 1975.Dorothy Schrader attended this significant inauguralevent. In September 1976, Harriet Oler, a seniorcopyright attorney on the staff of the general coun-sel of the Copyright Office, attended the secondmeeting of the institute in Brasilia.The Inter-American C opyrigh t Institut e is plan-ning future programs for the exchange of viewsupon, and development of, copyright in the Ameri-cas. This organization and the opportunity forcloser cooperation with Latin America should be animp ortan t compo nen t of U.S. copyright policy. Iffeasible, serious consideration should be given toarranging a meeting of the institute plenary, orexecutive board, in the United States.With Brazil, Mejrico has become a major center ofcopyright consciousness in today's world. Becauseof Mexico's long-standing interest in problems ofperformer's rights and the Rome Convention, thatgovernment was host of the Latin American andCaribbean Seminar on the Protection of Producersof Phonograms, Performers and Broadcasting Orga-nizations. Held in Oaxtepec, Mexico, October27-31, 1975, the seminar brought together expertsfrom North and South America, to deliberate theproblems involved in putting the Rome Conventionfor the Protection of Performers, Producers of Pho-nograms and Broadcasting Organizations into prac-tice and adh ering to it.The Rome Convention, one of the most complexof copyright treaties, has been the subject ofrenewed interest throughout the world, includingthe United States. While its growth had been ham-pered until recently, the creation of the BrusselsSatellite Convention, with the Geneva PhonogramsConvention, has made the Rome Convention a keytreaty in a comprehensive system of internationalprotection for copyright and neighboring rights. Thevigorous debates and scholarly papers presented atthe Mexican seminar d emon strate th e value of closeU.S.-Latin American experience in this difficultfield. The Copyright Office was represented at theseminar by Dorothy Schrader.

CONTUOn July 25, 1975 , the President appointed the fol-lowing members to the National Commission onNew Technological Uses of Copyrighted Works(CONTU): The Honorable Stanley H. Fuld, chair-


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REPORT OF THE REGISTER OF COP1Klut lTS. 1976man, Melville B. Nimmer, vice chairman, George D.Car y, William. S. Dix, Jo hn H ersey, Rhoda H. Kar-patk in, Dan Lacy, Arthur R. Miller, E. Gabriel Perle,Hershel B. Sarbin, Robert Wedgeworth, Alice E. Wil-cox, an d Th e Librarian of Congress. The register ofcopyrights, a nonvoting member, participates in thework of the commission. Arthur J. Levine is theexecutive director of the commission.The commission was established by the Congressin 19 74 "to study and compile data on the repro-duction and use of copyrighted works of authorshipin conjunction with automatic systems capable ofsorting, processing, retrieving, a nd transferring infor-mation . and the reproduction and use of suchcopyrighted works by various forms of machinereproduction . . ." as well as "to study and compiledata on the cre ation of new wor ks (1) by the appli-cation or intervention of automatic informationstorage and retrieval systems or (2) by the applica-tion or intervention of any form of machine-repro-duction."Judge Fuld said at the initial meeting of the com-mission on October 8, 1975:

Our ultimate objective, under the statute, is to make recom-mend ations for such chan ges in cop yright law or proceduresas may be necessary to assure access to co pyrighted works-with respect t o these problem areas-and at the same timeto provide recognition of the rights of the copyrightowners. In so doing, we must subject the solutions, as weconsider them, to two tests: first, will our recommenda-tions tend to result in an increase or decrease in the crea-tion of intellectual property and, second, will the channelsof diqemination of copyrighted works be broadened andincreased or diminishe d?

The commission held seven two-day meetings infiscal 1976 and numerous subcommittee sessions.Attention was given specifically to the libraryphotocopying issues stemming from the proposedrevision o f the c opyright law and t o the collectionand analysis of data concerned with the productionand protect ion of com puter software a nd ' databases. In May 1976 C O N T U offered it s assistance t othe House Subcommittee on Courts, Civil Liberties,and the Administration of Justice in the development o f guidelines focusing on library p hotoc opy ingin connection with the revision bill. This offer wasaccepted, and subsequently guidelines were formu-lated in consultation with interested groups in thelibrary, auth or, and publishing communities.

JUDICIAL DEVELOPMENTSFor the first time in many years the CopyrightOffice was faced with several mandamus actions, asituation that reinforces the urgency for immediateaction on revision of the 19.09 statute .

Utilitarian Designs ~s "Works of Art"On May 5, 197 6, the U nited Sta tes District Courtfor the District of Columbia granted summary judg-ment in favor of plaintiff, Esquire, Inc., on groundsthat its lighting fixture designs cons titute co pyright-able works of art within the meaning of title 17U.S.C. The following day the court ordered that awrit be issued directing fh e register of copyrights toregister claims to copyright for artistic designs ofthe three lighting f ixtures involved. The register hadrefused registration. on grounds that the fixtureswere primarily utilitarian works, lacking separableartistic auth orsh ip, and thus. no t registrable underRegulation 3 7 C.F.R. 202.10(c). The pertinentCopyright Office regulation provides, inter alia:If the sole intrinsic function of an article is its utility, thefact that the article is unique and attractively shaped willnot qualify it as a work of art. However, if the shape of autilitarian article incorporates features, such as artisticsculpture, carving, or pictorial representation, which can beidentified separately and are capable of existing indepen-dently as a work of art, such features will be eligible forregistration.But Judge Gesell's o pinion decided th at Mazer v.Stein, 347 U.S. 201 (1954), warranted registrationfor these objects as works of art, notwithstandingtheir intended industrial uses. He noted that the fix-tures are exclusively decorative during the daytimeand furthe r th at "there cannot be and there shouldnot be an y national standard of what constitutes artand the pleasing forms of the Esquire fixtures areentitled to the same recognition afforded moretraditional sculpture." The court declined to deter-mine wh ether the register of copyrig hts cou ldtighten the applicable regulations and still meetMazer's holding.Subseque ntly, Judge Gesell granted a m otion tostay execution of the writ of mandamus until July6, 1976, or later, pending determination and dispo-sition of appeal. Judge Gesell's decision has beenappealed.


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REPORT OF THE REGISTER OF COPYRIGHTS, 1976The Esquire case has potential effect both on theCopyright Office practices respecting artistically

designed industrial artifacts and on the sui generisdesign legislation, discussed in connection withtypeface designs, below, which was specificallydrafted to reflect the economic considerations pecu-liar to indu strial designs.

Commercial Prints and Labels and theManufa cturing ClauseEarly in the fiscal year an action was filed in theDistrict Court for the Central District of California,Civil No. 75-2586 (C.D. Cal., filed July 31, 1975),Imperial Toy Corporation v. Ringer, to compel theregistration of claims to copyright in commercialprints manufactured abroad by a lithographic orphotoengraving process.Section 16 of Title 17 of the United States Coderequires separate lithographs or photoengravings tobe m anufactured in the United States unless theyare exempt by virtue of ( I ) the provisions of theUniversal Copyright Convention and sec tion 9(c) of17 U.S.C. or (2) the provisions of 17 U.S.C. 16 ongrounds that the illustrations represent a subjectpermanently located abroad and illustrate a scien-tific work or reproduce a work of art. The works inquestion could b e exempted from the manufactur-ing requirements on neither of these grounds. In-stead, the claimant argues that the reference to"separate lithographs and photoengravings" in 17U.S.C. 16 was intende d t o cover only prints des-tined to be incorp orated in a book or periodical.The issue in the case is. whether section 1 6 of thecopyright statute applies to separate lithographs andphotoengravings. The facts we re stipulated by theparties, and in February the court heard oral argu-ments on motions for summary judgment filed byboth sides. The court's decision is pending.

Dual Bases for Renewal RegistrationApproximately nine years ago the Copyright Officebegan receiving applications to renew the copyrightin certain comic books. The basis for the right torenew these copyrights was stated on the applica-tions both as "proprietor of copyright in a com-

posite w ork" and as "proprietor of copyright in awork made for hire." These two bases of claim wereconsidered to be contradictory, and consequentlythe register refused t o issue a single certific ate bear-ing two contradictory bases for registering a renewalclaim. A 1974 attorney general's opinion supportedthe Copy right Office position.Another phase of this controversy began on Jan-uary 20, 1976, when the ap plicant filed an action inthe District Court for the Southern District of NewYork, Cadence Industries, Inc. v. Ringer, Civil No.76-33 9 (S.D.N.Y., filed January 20, 1976), to com-pel the registration of the renewal claims on applica-tions stating the dual bases for registration. At theclose of the fiscal year the answer t o the complainthad been filed, but there had been no further pro-ceedings.

Typeface DesignsProtection under the copyright statute for typefacedesigns continued as a major issue during the year.Following the register's decision no t t o amend sec-tion 202.l(a) of the regulations, which has beeninterpreted to prohibit copyright registration fortypeface designs as "mere variations of typographicornamentation, [or] lettering," registration wasdenied for an application submitted by Eltra Corpo-ration to register a claim in a text typeface design.Shortly th ereafte r, an action was filed in the DistrictCourt for the Eastern District of Virginia, EltraCorporation v. Ringer, Civil No. 76-264 (E.D. Va.,filed April 8 , 19 76), requesting the court t o compelthe registration of the Eltra typeface design. OnOctober 26, 1976, the court awarded summaryjudgment to the register of copyrights.As the fiscal year ended, the Subcommittee onCourts, Civil Liberties, and the Administration ofJustice of the House Committee on the Judiciaryhad virtually concluded its mark-up of the revisionbill. Although typefaces would have been embracedin the design legislation of Title I1 of S. 22 as passedby the Senate, this title was excluded in the finallaw. The House Judiciary C omm ittee felt that it hadnot had sufficient time to conduct hearings andstudies on the matter, and the full House and theSenate agreed to the deletion. However, it is antici-pated that separate design legislation may be con-sidered liy the Congress in the near future.


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REPORT OF THE REGISTER OF COPYRIGHTS, 1976Subject Matter and Scope of ProtectionTwo decisions established further legal blocks topersons attempting to recover for appropriations ofideas. Smith v. Recrion Corp., 541 P.2d 663 (Nev.Sup. Ct. 1975), and Richter v. Westab, Inc, 529F.2d 896 ( 6th Cir. 1976), reaffirmed that statutoryand common-law copyright are not available forabstract ideas or conce,pts. The subject of theformer was an unsolicited suggestion mentioned in abrochure that a recreational vehicle park be con-structed and operated by a hotel. The latter caseinvolved the suggested application of fashion corre-lated designs to notebook covers. Both courts alsorefused to find an implied contract for the generalideas where no applicable contract had been madebefore disclosure of the idea.In Gustme v. Zuppiger, 189 USPQ 32 8 (Ariz. Ct.App. 1976), the A rizona Cou rt of Appeals held thatcommon-law copyright existed in original furnituredesigns. In its opinion the court cited section202.10 of the regulations and stated, "This regula-tion is not determinative of the subject matter ofcommon-law copyright." The cou rt said that "com-mon law copyright affords the holder only the rightof first publication," and hence "the definition ofcopyrightable works is more restrictive for extensivestatutory protection than for the limited commonlaw protection." In Huk-a-Poo Sportswear, Inc. v.Franshaw, Inc.. Civil Action No. 75-4967 (S.D.N.Y.,filed January 27, 1976), the court agreed with theposition of the Copyright Office, as stated in itsCompendium o f Copyright Office Practices, that themanufacturing clause does not extend to worksprinted by silk-screen process. Although the Com-pendium is not binding upon the court, the courtfelt it was "indicative of the many type s of repro-duction which are not included within the manu-facturing clause."In Shaw v. Time-Life Records. 341 N.E.2d 817(N.Y. Ct. App., 1975), the fam ous bandleader ArtieShaw was held t o have "no property inte rest in th eArtie Shaw 'sound.' So long as there is an absence ofpalming off or confusion, compe titors might 'metic-ulously' duplicate or imitate his renditions of musi-cal compositions."

In Scoa Industries, Inc. v. Famolare, Inc., CivilAction No. 75- 3357 (S.D.N.Y., filed F ebruary 1 3,1976), a claim to copyright had been registered in asmall sculpted design of an old-fashioned bicycle.The design appeared on the bottom of a shoe sole.

In the litigation, however, the plaintiff soughtbroader protection covering "several pronouncedcorrugations (or 'waves') on the shoe bot tom , apattern of raised wavy lines on the sides, and an-other pattern of raised lines on the bottom. . . ."The court cited section 202.10(c) of the regulationsas providing "some guidance in this matter" andconcluded , "in agreement w ith the Copyright Of-fice, t hat the troughs, waves, and lines which appearon the shoe sole cannot be identified and do notexist independently as works of art." Deering Milli-ken, Inc. v. Quaker Fabric Corp., 187 USPQ 288(S.D.N.Y. 1975 ), was an infringem ent actio n involv-ing a copyrighted rendition of the "tree of life_"design used by the textile industry for centuries.The evidence established that the copyright ownerhad "widened the design for production purposesand t o enhance its 'workability,' and thus created anoriginal design.. . ," an d ". . in a well ploughedfield such as this little in the way of distinguishableyariation is needed t o claim originality and therebyobtain a copyright." The court adde d, however, that"correspondingly, little is gained from such a copy-right." In American Greetings C o p . v. KleinfabCorp., 18 8 USPQ 297 (S.D.N.Y. 1975), the courtfound that the addition of the inscription "Put on aHappy Face" to a previously copyrighted illustra-tion made the work "distinguishable from theunderlying work alone," and ". . independentlycopyrightable as a new and separate creation." Theplaintiffs arrangement in its gift wrap of twelvepanels "in a distinct artistic pattern" was also con-sidered copyrightable in the American Greetingscase.The copyrightability of a plastic, scaled-downreproduction of a cast-iron Uncle Sam bank thatpassed into the public domain many years ago wasthe subject of three decisions during the year. Thereproduction differed from the public domain workin the following respects: "The Uncle Sam figurewas two inches shorter, the base was shortened andnarrowed, the shape of the carpetbag was changed,the umbrella was included in the single mold (ratherthan hanging loose), the eagle on the front of thebank clutched leaves (rather than arrows) in histalons, the shape o f Uncle Sam's face is different, asis the shape and texture of the hat, the texture ofthe clothing, the hairline, shape of the bow tie, theshirt collar, the left arm, and the flag carrying thename on the statue's base." The District Court in L.Batlin and Son, Inc. v. Snyder, 187 USPQ 91


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REPORT OF THE REGISTER OF COPYRIGHTS, 1976(S.D.N.Y. 1975), foun d that the artistic skill re-quired in making the reproduction did not "contrib-ute" to the work and did no t amount to more thana "merely trivial variation." This was reversed in L.Batlin & Son, Inc. v. Snyder, 187 USPQ 721 (2dCir. 1975), with the majority concluding that the". . bank satisfies the criteria for copyrightabilityin order to qualify as a reproduction of a work ofart. .. "On a rehearing en banc, the Second Circuit Courtof Appeals reversed its earlier decision and upheldthe district court's grant of preliminary injunctionrestraining the enforceme nt of the copyright for thereproduction [L. Batlin & Son, Inc. v. JeffeySnyder and Ema Ro ducts , Inc., 189 USPQ 7 53 (2dCir. 1976)]. It affirmed the district court's findingthat there was "little probability" that appellants'copyright in the reproduction would be found validbecause the differences between the reproductionand the original public domain Uncle Sam bankwere merely trivial: the reproduction was "a copyof an antique bank long in the public domain andtherefore in all probability not copyrightable,"citing AIfred Bell and Co. v. Chtalda Fine Arts, Inc.,191 F.2d 9 9 (2d Cir. 1951 ). Interestingly, the copy -righted reproduction bank, which had been regis-tered as a sculpture in class G, was molded b oth in adifferent medium (plastic) and a substantiallysmaller size than the original cast-iron mechanicalbank. Nonetheless, the co urt foun d the changes-the

shape of the carpetbag, leaves instead of arrows, theattached umbrella, and the difference in surface tex-ture-inadequate to render the work sufficientlyoriginal to warrant statutory copyright protection.Said the co urt: "If there be a point in the copyrightlaw pertaining to reproduction s at which sheer artis-tic skill and effort can act as a substitute for therequirement of substantial variation, it was notreached here." At the same time, the cou rt acknowl-edged that an exact reproduction of "an intricatepiece of sculpture" may involve so much creativeskill that the resulting work is worthy of copyrightprotection.Bliss & Laughlin Indusm'es, Inc. v. Starvaggt', 188USPQ 89 (S.D.N.Y. 1975). enunciates the.prin ciplethat "each component portion of a composite worksuch as a catalog is a separate copyright protectedagainst copyright infringement." In Reyher v. Chil-dren 's Television Workshop, Civil No. 75 -72 78 (2d

, Cir. 1976), the Second Circuit Court of Appealsdeclared that copyrights "do not protect thematic

concepts or scenes which necessarily must followfrom certain similar plot situations."And Wamer Bros., Inc. v. Film Ventures h te m a -tional, 403 F. Supp. 522 (C.D. Cal. 1975). deniedplaintiffs petition t o enjoin exhibition of a motionpicture on grounds that copyright infringement wasunlikely t o be proved at trial. The cour t foun d thatsince both The Exorcist and Beyond the Door used"commonly accepted physical ways of depicting aperson possessed by the devil" and the characters inthe two motion pictures were substantially differ-ent, an injunction was unwarranted.The applicability of sections lOl (e) and 104 totape duplicators of musical compositions fixed inphonorecords before February IS, 197 2, was con-sidered in Stereo Tape Assocbtes , Inc. v. Levi, No.G 75 -167 (W.D. Mich., May 14, 197 6), and StereoTape Associates, Inc. v. Levi, Civil No. 5-70687(E.D. Mich., April 1976) . Plain tiff, a tape duplica-tor, alleged that it had relied on a 1971 interpreta-tion of t he attorney general of the United States tothe effect that duplicators of pre-February 15,1972, material, who complied with the compulsorylicense provision of the statute, were not liable forcopyrigh t infringement under section 101(e). Subse-quently, however, four circuits held that thecompulsory license provision did not apply tounauthorized tape du plication; this led the attorneygeneral t o change his interpretation, and in 197 5 hepublicly an noun ced th at tape duplicators could nolonger avail themselves of the compulsory licenseprovision of the statute.,The atto rne y general alsoannounced the Justice Department's intent to prose-cute prospectively all tape du plicators under section101(e) and 104.Stereo Tape Associates , Inc., therefore, filed thesesuits seeking, amon g oth er things, t o enjoin theattorney general from prosecuting it. The sameissues were presented in Heilman v. Levi, 391 F.Supp. 11 06 (E.D. Wis. 1975). with identical results.As in the Heilman case, in denying plaintiffs re-quest for injunctive relief, the court in the WesternDistrict relied on the Duchess decision [DuchessMusic Corp. v. Stem, 45 8 F.2d 130 5 (9th Cir.), cert.denied. sub norn., Rosner v. Duchess Music Corp.,40 9 U.S. 84 7 (1972)l and its progeny. The court inthe Eastern District noted these cases in its memo-randum ; however, by stipulation the action was dis-missed with prejudice. In both suits plaintiff alsoalleged tha t the meaning of "unauthorized " as usedin section 101(e) is so uncertain that the copyright


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REPORT OF THE REGISTER OF COPYRIGHTS, 1976statute is unconstitutionally vague, and it moved fora three-judge district court. Heilman was found tobe dispositive of this issue. In H e i l m , the courtdefined an "unautho rized" use as one which isneither "similar" nor explicitly authorized and con-sequently found the vagueness challenge t o be in-substantial.Mills Music, Inc. v. State of Arizona, 187 USPQ22 (D. Ariz. 1975), raised the issue whether radioand television broadcasts of unauthorized arrange-ments of the well-known copyrighted musical com-position "Happiness Is" to pro mo te the ArizonaState Fair were public performances "for profit"under section l(e). Judge Craig foun d that the statefair was a commercial venture whose aim was tomake money: there were parking and admissionfees, and 9 0 percent of the space was leased to mer-chants whose purpose was to sell their goods. Eachone of the 3,928 broadcasts was held to be a sepa-rate infringement.The court noted that the term "nonprofit" asused in the law of corporations is substantially dif-ferent from the phrase "not for profit" in the law ofcopyright and found that public performances ofcopyrighted musical com positions caused by "non-profit" corpo rations may be regarded as perfor-mances for profit within section l(e).In addition, the court found that the variousarrangements and adaptations made without theconsent of the copyright owner violated the copy-right owner's exclusive right to "arrange or ada pt itif it be a musical work" [section l(b)] and that thedistribution of sheet-music copies to performersinfringed the copyright owner's exclusive "right tocopy" [section l(a )]. The court also held thatdefen dant infringed plaintiff's "right t o make tapecopies" under sections l(e) and 101(e). The courtconcluded that since the enactment of the SoundRecording Amendment in 1971 recordings of musi-cal compositions are copies of the musical works;section 101(e) is interpreted as creating an exclusiveright in the copyright owner of the musical compo-sition to manufacture, use, or sell recordings of thework.

Publication and Notice o f CopyrightA preliminary injunction was denied in H. W. WilsonCo . v. National Library Service Co., 402 F. Supp.456 (S.D.N.Y. 1975), on grounds that The Readers'

Guide to Periodical Literature is in the public do-main, having been distributed since 190 0 witho ut acopyright notice. Although resale by a library wasproh ibited, plaintiff could not claim a "Iimited pub -lication" where th e use and availability of the Read-ers' Guide was otherwise unrestricted as to eitherpersons or purpose. Comm on-law copyright in draw-ings disclosing the design of a computer was upheldon a findin g o f "limited publication" in Data Gen-ma1 Corp, v. Digital Computer Controls, Inc., 188USPQ 276 (Del. Chancery Ct. 1975), where thedrawings were included in maintenance documenta-tion distributed to buyers. The drawings bore a leg-end stating that they were the property of DataGeneral Corporation "and shall not be reproducedor copied or used .. s the basis for manufactureor sale of the items without written permission."The buyer was furnished the maintenance documen-tation only after agreeing to abide by t he propri-etary legend. Submission af a written proposal t o auniversity for the purpose of obtaining federal fund-ing for one of its accredited academic programs washeld to be mo re than a limited publication and notsubject to common-law copyright in Manasa v. Uni-versity o f Miami, 32 0 So.2d 467 (Fla. Dist. Ct. App.1975). The court said in the Manasa case that toqualify as a limited publication it "must be directedto a definitely selected group and for a limited pur-pose, and without the right of diffusion, reproduc-tion, d istribution o r sale." Display by th e copyrightowner of the furniture in its branch bank for use bypersons transacting business there was held a generalpublication that destroyed the common-law copy-right in Gustave v. Zuppiger, 540 P.2d 197 6 (Ariz.Ct. App. 1975).Similarly, plaintiff's failure t o secure copy rightprotection for a year and a half after publicationforfeited his right t o sue defendant for infringementin Jacobs, d/b/a The New Hampshire ClassifiedGuide v. Robitaille, d/ b/ a The Memmmack ValleyFree Chssified Weekly, 40 6 F. Supp. 1 145 (D. NewHamp. 1976 ), although defendant's pub lication wassimilar in "size of pu blicatio n, type of pap er, seriftype face, internal format, bleedover border, price,date of publication, and two color front page for-mat." The court did not rule on whether each ofthese similarities individually might consti tute copy -rightable sub ject matter.Absence of the notice worked a forfeiture of thecopyright in h m b v. A.A. Sales. Inc., 18 8 USPQ445 & 447 (N.D. Cal. 1975 ), where betw een 3,5 00


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REPORT OF THE REGISTER OF COPYRIGHTS, 1976and 6,500 cards depicting a cartoon character andthe popular phrase '!Keep on Truck in' " were dis-tributed to the public without a copyright noticebut with the knowledge and consent of the copy-right owner. And distribution by an Army psychia-trist of copies of the famous poem "Desiderata"during World War I1 to troops in the Pacific with nonotice and under written authorization of the copy-right proprietor was held to forfeit the copyright inBell v. Combined Registry Company, 188 USPQ707 (N.D. 111. 1975).A notice is not defective, said the court in Ameri-can Greetings Corp. v. Kleinfab Corp.. 40 0 F. Supp.22 8 (S.D.N.Y. 1975), beca use tw o notices in dif-ferent form appear on the same work, or becausethe notice is in the name of a corporate subsidiaryof the proprietor, where the subsidiary "has thesame officers, directors and shareholders as its par-ent." The court in the American Greetings case alsorefused to invalidate the copyright where the noticeon a derivative work did not bear a year date refer-ring to the underlying copyrighted work. A singlenotice on a record album containing both copy-righted and uncopyrighted bands was found ade-quate in U S . v. Taxe, Civil No. 74-3094 (9th Cir.,filed June 22, 1976), "since, for $2.00 anyone canobtain a co py of the copyright certificate and deter-mine which songs are protected." The court foun din Goldman Morgen, Inc. v. Dan Brechner & Co.,Civil No. 72-17 (S.D.N.Y., filed March 30, 1976),that a felt plug covering the opening through whichmoney is deposited in a coin bank "was more than amere tag attached to the bank," and a noticeimprinted on the plug by rubber stam p is adequate.

Copy right RegistrationA question whether the wording on the applicationform was adequate in spelling out the dates of fixa-tion of sound recordings was raised in U S . v. Taxe,Civil No. 74-3094 (9th Cir., filed June 22, 1976).The cou rt responded by saying that, "Every applica-tion .. . equests the dates by direction to the appli-cant to designate 'new matter.' Such 'matter'includes sound recordings first fured after February15 , 1972 . This designation is adequate."The Taxe case also held that the certificate isprima facie evidence of the date of fixation. Bell v.Combined Registry Company, 18 8 USPQ 7 07 (N.D.111. 1975), an d Deering Milliken, Inc. v. Quaker

Fabric Corp., 18 7 USPQ 288 (S.D.N.Y. 197 5), weretwo additional cases during the year that discussedthe prima facie effect of the certificate. T he Deeringcase adhered strictly to the statutory language andfound that th e "certificate cons titutes prima facieevidence of the fa cts stated therein." The Bell casecited the statutory language but recognized thatthere is authority in the Seventh Circuit ". . . ha tthe certificate constitutes prima facie evidence notonly of the 'facts stated therein' but also of theoverall validity of th e copyrigh t." However, Bliss &Loughlin Industries, Inc. v. Starvaggi, 188 USPQ 8 9(S.D.N.Y. 1975 ), went still furth er in concludingthat the certificate "suffices to establish both thevalidity of the copy right and plain tiffs ownership."In Epoch hoducing Corporation v. Killiam Shows,Inc., 187 USPQ 270 (2d Cir. 1975), cert. denied,Civil No. 75 -98 8 (U.S., filed March 8, 1 976), thecourt of appeals indicated that the prima facieeffect afforded by the statute"'was meant to attac honly to original certificates," and not to certificatesissued for the renewal term.Vogue Ring Oeations, Inc. v. Hardman, 4 1 0 F .Supp. 60 9 (D.R.I. 1976), contained some interest-ing dicta generated by plai ntiffs failure to include anew matter statement on the application form. Thecourt had found that the differences between theplaintiffs ring and a previously copyrighted versionare "trivial and meaningless," but the court said theplaintiffs omission "was not an insubstantial omis-sion" and that it deprived the Copyright Office ofthe "opportunity to evaluate whethet or not theplaintiff ha d m ade a ny copyrightable changes." Thecour t went so far as to say that "even if this copy -right was otherwise valid I would have to hold itunenforceable because of unclean hands."

Renewals, Assignments, Ownership, and Transfer of RightsBartok v. Boosey & Hawkes, Inc., 187 USPQ 529(2d Cir. 1975), was a ruling of first impression by adivided Second Circuit Court of Appeals dealingwith what is meant by a "posthumous" work underthe copyright statute. The case was on appeal froma lower court decision that BCla Bartok's Concertofor Orchestra, having been published six monthsafter Bartok's d eath , was a "posthumous" workwithin the meaning of the copyright statute , andtherefore the renewal right belonged to Boosey &Hawkes as the proprietor. On appeal, however, the


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REPORT OF THE REGISTER OF COPYRIGHTS, 1976majority held that controlling weight must be givento the legislative purpose to protect the author orhis family by giving them the renewa l right. It heldthe composition was not posthumous becauseBart6k had assigned his rights to the publishers dur-ing his lifetime. The court said, "The only definitionof 'posthun.ous' which fulfills the legislative pur-pose of protecting authors and their families is thatin the narrow situation-not present here-where acontract for copyright was never executed by theauth or during his life. . ."Epoch Producing Corporation v. Killiam Shows,Inc., 187 USPQ 270 (2d Cir. 1975), cert. denied,Civil No. 75 -98 8 (U.S., filed March 8, 197 6), in-volved the renewal in the film classic The Birth o f aNation. Evidence at the trial clearly indicated thatD. W. Griffith was the producer and director of thefilm. Although Epoch claimed in its renewal applica-tion that the work had been made for hire, thecou-t was unconvinced, noting that Epoch was notfor:-led until after the film h ad been made; also,"there is no contract of employmen t, record ofsalary payments, or proof that Epoch (or its prede-cessor in interest) supervised or controlled Griffithin the making of the picture." The "power to con-trol or supervise Griffith's work" was lacking,"which is the hallmark of an 'em ploymen t for hire'relationship." Likewise, Epoch was unable t o claimrenewal on grounds that the film was first copy-righted by a "corpora te body." The " corporatebody' provision of section 24 indicates that it doesnot apply to works of this type which are authoredand produced by one identifiable person." Hugheyv. Palographics Co., 189 USPQ 527 (D. Colo. 1 976),granted plaintiffs motion for summary judgment-based on copyright infringement of an unpublishedhistorical map on grounds that the presumption ofemploym ent for hire in 17 U.S.C. 5 2 6 is rebuttedwhere the employer repudiated the employmentcontract, and plaintiff-employee never received thecontract's stipulated fee. On these facts, plaintiffwas found to be an independent contractor and thecopyright owner of her work.The court held in Hill & Range Songs, Inc. v. FredRose Music, Inc., 189 USPQ 233 (M.D. Tenn.1975), that the common-law spouse of Hank Wil-liams, at the time of his death, was his "widow"within the meaning of that term in the renewal pro-vision of the statute, and she did not lose that rightwhen she remarried. The court was careful, how-ever, to express "n o op inion as to whether a puta-

tive wife would qualify in a situation where thedeceased had a legal spouse, as well as a putativespouse, at the time of his death." The court alsosaid: "While it may be possible for th e possessor ofa contingent expectancy in copyright renewals toassign this interest by the use of general language, itmust be shown that this is what the parties to theassignment intende d," and where the possessor didnot even know the right existed, they could nothave been conveyed by the terms of a general assign-ment.In Kingsrow Enterprises, Inc. v. Metromed ia. Inc.,189 USPQ 9 0 (S.D.N.Y. 1975), the cour t said thatthe m ere purchase of copyrigh t certificates at asheriff's sale did not give the purchaser ownership ofthe copyrights. The copyright is transferred by anassignment from the owner, and this is done "by aninstrument in writing signed by the proprietor ofthe copyright.. . ." Brawley, Inc. v. Gaffney, 188USPQ 6 48 (N.D. Cal. 1974) , held tha t an agreementwhereby the copy right owner reserved "all causes ofaction for copyright infringement which may havealready accrued up t o the date of this assignment"did not prevent the agreement from constituting anassignment and not a license. Likewise, the trans-feror's reservation of the right to use the copy-righted m aterial did not defe at the assignment.In Viacom International. Inc. v. Tandem Produc-tions, Inc., 526 F.2d 59 3 (2d Cir. 1975), the SecondCircuit found for the assignee television network ofdomestic television syndication and foreign distribu-tion rights for the "AU in the Family" copyrightedtelevision series against the producer, denying thelatter's right to interpo se th e illegality of the parties'contract as a defense. The court held the contractwas not invalidated by subsequent FC C rules pro-hibiting television networks from having financial orproprietary interests in programs produced byothers.In American International Pictures, Inc. v. Fore-man, 40 0 F. Supp . 92 8 (S.D. Ala. 1975), theDistrict Court refused to uphold plaintiffs' claim forinfringement of copyrighted mo tion pictures againstdefenda nt distributor for his allegedly unauthorizedsale of prints. The court found that where plaintiffsfailed to show by a preponderance of evidence thatthe prints had not been the subject of "first sales"by th em, future sales were not restricted.A memorandum opinion by a U.S. District Courtin Bell, d/b /a Oescendo Atblishing C ompany v.Combined Registry Company, 397 F. Supp. 1241


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REPORT OF THE REGISTER OF COPYRIGHTS. 1976(N.D. 111. 197 5), held, inter alia, tha t an originalcopyright owner's failure to follow th e Indianastatute requiring registration of a fictitious name didnot invalidate a copyright obtained in the fictitiousname, reasoning that the operation of a state lawcannot defeat the validity of a federal copyright;and federal courts have exclusive jurisdiction to.determine questions of title to copyright. On theissue of abandonment, the case held that distribu-tion of a work without a statutory notice, even if solimited as n ot to constitute a forfeiture of statutorycopyright, may cause an abandonment if coupledwith an intent to abandon. The requisite intent herewas composed of the owner's mailing Christmascards that contained the poem without notice ofcopyright, authorizing the work's distribution toone doctor's patients, and no ting in his diary tha t he"should like, if I cou ld, t o leave a humble gift. . . ."First Amendment rights were at issue in Rose-mont Enterprises, Inc. v. McGrmu-Hill Book Co.,38 0 N.Y.S. 2d 839 (Sup. Ct. 1975). Ros emo ntclaimed that the famous Howard R. Hughes hadgranted it rights that extended t o almost any workwhich concerned him; Rosemont therefore sought apreliminary injunction to restrain publication of thefictionalized autobiography of Hughes by CliffordIrving. In denying the injunction, the court appliedthe well-settled principle of law that a "priorrestraint is illegal censorship" which indirectlyencroaches upon the rights and guarantees em-bodied in the First Amendment. The court alsoobserved that if ever there was a public figure,Hughes was one, and that Hughes could not have amonopoly, nor could he give a monopoly to anyenti ty, with respect to works concerning his life.The court noted that others need no consent orpermission to write a biography of a celebrity; thesame is true about a fictionalized piece as long as itis made clear th at it is fictionalized.In Nixon v. Administrator of General Services,408 F . Supp . 321 (D. D.C. 197 6), th e former Presi-dent attacked the constitutionality of the Presiden-tial Recordings and Materials Preservation Act. Thelegislation directed the administrator of general ser-vices to take custody of Mr. Nixon's presidentialpapers and tape recordings and to promulgate regu-lations that would provide for the orderly process-ing of the materials. Records private in nature wereto be returned to Mr. Nixon, while those relating tolegitimate 'governmental interests were to beretained. C onditions relating to public access to the

retained materials were to be further stipulated inthe regulations. A three-judge district court rejectedall the constitutional objections raised by the for-mer President. T he act was found no t to violate theseparation of powers concept since the framers ofthe Constitution intended an interrelationshipbetween the branches of government. Argumentsbased on privacy and freedom of speech were re-jected as problematical since the review of Mr.Nixon's papers was to be confidential and thosepapers private in natu re were not intended t o bedisclosed. The equal protection argument was dis-missed o n a finding that any difference in the treat-ment between the plaintiff and oth er Presidents wasadeq uately justified.Juridiition and RemediesThe U.S. g overn men t, as parens patriae, has standingto sue a tape pirate in a domestic case and to seekthe destruction of infringing copies and devicesunder Sec. 101(d) Title 17, including tape dupli-cating equipment, master tapes of sound recordingsprote cted by U.S. copy right law, and miscellaneousequipment. United States v. Henry Newton Brown,Jr., 4 0 0 F. Supp. 65 6 (S.D. Miss. 1975), reasonedthat such standing was established by the fact thatonly under su bsections 101(b) and 101(e) (damages,profits , royalties) of T itle 17 is relief limited to per-sons having proprietary rights, and by section 116'sreference to cases brought by th e United S tates.Standing is confirmed by the obligation under theUniversal Copyrigh t Convention to ado pt the neces-sary measures to effect the convention by protect-ing c opy rights.A distributor's failure to use the word "copy-right" in his pleading in an action seeking damagesand an injunction for a competitor's alleged unau-thorized distribution of two films did not give asuperior cou rt jurisdiction over the case in JanusFilms, Inc. v. Budget Films, Inc., 12 7 Cal. Reptr.204 (Cal. Ct. App., Jan. 28 , 1976 ). Rather, the statecourt lacked jurisdiction t o decide th e issue, sincethe interpretation of exclusive distribution rightsand license agreements depended u po n federal copy-right law.At issue in Columbia Broadcasting System, Inc . v.American Society of Composers and hblishe rs, 4 00.F. Supp . 73 7 (S.D.N.Y. 197 5), was the legality ofthe licensing practices of ASCAP and BMI. Theessence of CBS's claim was that A S C A P an d BM I ,


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REPORT OF THE REGISTER OF COPYRIGHTS, 1976constituted illegal combinatio ns whose purpose andeffect was to exact royalties from C B S for m usic itdid not wish to license because C BS was "com-pelled" to obtain a "blanket license" in exchangefor a flat fee based on a percentage of C B S advertis-ing revenues. The court cited the various consentdecrees that required A S C A P and BM I to offer "perprogram licenses" under which a fee is charged onlywith respect to programs in which a compositionwithin the repertory of the society has been usedand to structure fees for blanket and per programlicenses so that the user had a-genuine choice be-tween them. The court also noted tha

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