us copyright office: ar-1964

8/14/2019 US Copyright Office: ar-1964

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SIXTY-SEVENTHANNUAL REPORT OF THE

REGISTER OF COPYRIGHTS

COPYRIGHT OFFICEIWE LIBRARY O F GONG-

W A ~ O T O N1965


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LC.Card No. 10.35017IIi This report is preprinted from the

~ e p a l j PI i tmrianf Conpa88,-for the fiscalyear ending June 30, 1964


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Contents

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .HE COPYRIOWTPPICEThe Year's Copyright Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .fficial PublicationsCopyright Contribution8 to the Library of Gongreas. . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .dministrative Developments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .egislative DevelopmenbJudicial Developments . . . . . . . . . . . .. . . . . . . . . . . .. . . . . . . . . . . .. . . . . . . . . . .

Actions Pending Against the Register of Copyrights . . . . . . . . . . . . . . . . . . .Subject Matter of Copyright Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Notice of Copyright. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Publication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Renewal and Ownership of Copyright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .International Copyright Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Infringement and the Scope of Copyright Protection . . . . . . . . . . . . . . . . . . .Remedies for Infriigement . . . . . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . . . . .Unfair Competition and Copyright. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Antitrust Action . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .

International Developments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .International Copyright Relations of the United States as of November 1,1964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Registration by Subject Matter Clam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Statement ofGross CashReceipts, Yearly Fees,Number of Registrationo, etc . .Number of Articles Deposited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Summary of Copyright Business, Fiscal Year 1964 . . . . . . . . . . . . . . . . . . . . . . .Publications of the Copyright Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


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The Copyright OfficeReport to the Librarianof Congressby the Register of Copyrights

F scal year 1964was possibly the mostactive and productive period thus farin the current program for generalre-vision of the copyright law. As the yearbegan, the preparation of a preliminarydraft bill was in full swing: 18 draft sec-tions, based upon an exhaustive analysis ofthe many comments received on the Reportof tho Register of Copyrights on the Gen-eral Rev ision of the U.S. Copyright Lawand of various foreign laws and earlier re-vision bills, had already been circulated anddiscussed at four all-day sessions of thePanel of Consultants on General Revision.During the year, 34 additional draft sec-tions were prepared and circulated. Thesewere discussed at four more Panel meet-ings: on August 15 and 16, 1963, in Chi-cago and on October 8, 1963, November13, 1963, and January 15, 1964, in Wash-ington. Throughout the year officials ofthe Copyright Office took part in innumer-able meetings, discussions, and exchangesof correspondence with the subcommitteesformed under American Bar AssociationCommittee 304 on the Program for Gen-eral Revision of the Copyright Law, withvarious special committees, and with manyinterested organizations and individuals.

The purpose of distributing preliminarydraft sections for discussion and criticismwas to pinpoint and seek comments on allthe questions of content and drafting likelyto be raised by a general revision bill. Thedraft included alternative provisions onseveral controverted issues, and the lan-guage was intentionally made detailed andprecise to insure that important issueswould not be overlooked but would befully discussed. This plan proved success-ful in eliciting a large number of meaning-ful and constructive observations and sug-gestions which resulted in improvementsin language and which paved the way forsome necessary compromises.

The second half of the fiscal year wasdevoted to the large and difficult task ofcompiling, analyzing, and synthesizing allthe comments on the preliminary draft, ofmaking substantive decisions and changeson the basis of these comments, and ofcompletely redrafting the bill, section bysection. The preparation of a revised billfor introduction in Congress was under-taken by the Copyright Office General Re-vision Steering Committee, which has beenmeeting for over 5 years but never morefrequently than during the spring and earlysummer of 1964. During the period the


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2 R E P O R T O F THE REG ISTER O F COPYRIGHTS, 19 64committee, which included George D.Cary, the Deputy Register, Abe A. Gold-man, General Counsel, Barbara A. Ringer,Assistant Register for Examining, andWaldo H. Moore, Chief of the ReferenceDivision, met regularly with the Register.Miss Ringer and Mr. Goldman were theprincipal draften of the revision bill.

Just after the close of the fiscal year, onJuly 20, 1964, the Copyright Office's billfor the general revision of the copyrightlaw was introduced in the Senate by Sen-ator John L. McClellan (S. 3008) and inthe House by Representative Emanuel Cel-ler (H.R. 11947). Th e bill was also laterintroduced by Representative William L.St. Onge on August 12,1964(H.R.2354).This event marked a turning point in therevision program. The study and draft-ing phase is now qver; the active legislativephase is opening.

The final draft of the bill as introducedwas prepared by the Copyright Office with-out the direct collaboration or consultationof any private groups or individuals. Inaddition to simplifying, clarifying, andsubstantially condensing the language ofthe preliminary draft, the Office madechoices between the various alternativesoffered in the earlier draft and also adoptedsome important substantive changes. Inarriving at a final draft the Office washelped immeasurably by the comments ithad received, and particularly by the sug-gestions of the subcommittees of AmericanBar Association Committee 304 under theable chairmanship of John Schulman.The Office also sought to meet with indi-viduals and groups in an effort to work outviable compromises on as many issues aspossible.

Although introduction of the bill is aclear step forward in the progress of re-vision, it should not be regarded as a finalstatement of the fixed views of the Copy-right Office. I t is obvious that importantissues and conflicts remain to be settled.

For example, further adjustments mayneed to be sought with respect to questionsof Government publications; educationaIuses of copyrighted material, including ed-ucational broadcasting; the status of com-munity antenna systems; the status of juke-box performances; the scope of "worksmade for hire" ; he provision allowing ter-mination of transfers of copyright owner-ship; and manufacturing requirements.In the coming fiscal year the CopyrightOffice hopes to work toward reconcilingthese and other issues, with the immediategoal of presenting a newly revised bill andreport to the 89th Congress.

The Year's Copyright BusinessRegistrations in 1964 rose to an alltime

peak of almost 279,000. The total of com-pleted registrations increased more than14,000, or well wer 5 percent. October1963 was the largest month in the historyof the Copyright Office in terms of earnedfees, and April 1964 was the second largestmonth in tenns of registrations. The ta-bles appearing at the end of this reportgive detailed figures.By far the largest increase was in regis-trations for periodicals, which gained bynearly 5,000 or more than 7 percent.While coming close, periodical registrationsdid not quite surpass the total number ofregistrations for music, which increased bynearly 4 percent and remained the largestsingle class of material registered. Bookregistrations also rose by the substantialmargin of nearly 5 percent, but among themajor classes the largest relative gain (12percent) was shown by renewals. Thenumber of assignments and related docu-ments recorded increased 9 percent andthat of notices of use, 16 percent. In thesmaller classes there were surprisingly argeincreases in works prepared for oral de-livery, photographs, and prints and


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REPORT QF THE REUISTJSR OF COPYmHTS, 19 6 4illuStmtio~.Motion p i c t m lev- of the C a t d o g wm during

eled off, works of art and "desips" de- Year.creased by mme 5 percent, and commercial The 18th volume of Decirionr ofprinfi and labels rnumed their decline. United mates C O U ~nvolvingFiscnl 196( wn, the 12th straight year in (Bulletih 33), overing the periodwhich total rr@tratiQns increased; it edited by Benjamin Rudd, was issued

a of 15 percent over the pu t November 1963. The Ofice alsopublid5 years and 32 percent over the total of a revised edition of ~o py z i gh t nactme110 years ago. Laws Passed in the U .S . Since 1783 1Of the applications for registration and luting to Copyright, a 150-page 11other materials received during the year, compilation of U.S. laws enacted throu86.5 percent were acted upon without cor- 1%2.respondence, 2.5 percent were rejected, Throughout the year transcripts of fand 11 percent required correspondence meetings of the Panel of Consultantsbefore final action could be taken. Fees General Revision, at which the preliminaearned for registrations and related serv- draft of the revision bill was discussed, weices again broke all records; the total of edited and issued in multilith form. The$1,133,547 represents an increase of will be collected in printed editions duri~$55,799 or more than 5 percent. the following year, together with writtc

The Cataloging Division prepared over comments received on the diaft.5,500 pages of copy for the semiannualissues of the eight parts of the Catalog of Copyright Contributions to theCopyright Entries and produced and dii- Library of Congresstributed nearly 1.7 million catalog cards.Of these, some 620,000 carda were added to In 1964 over 449,000 articles were dtthe Copyright Card Catalog, 214,000 were posited for copyright registration, reprrscnting an increase of somewhat less tha:un t to subscribers to the cooperative card percent over the previous year. Ofsewice, 73,000 were furnished to the Li- toul, role 241,m weR tRnsb m ~ 7 8 1 ~ merved as fedthe Library of Congm for itcopy for the printed Catalog. collections or for disposal through its ExThe Search Section also had a changeand ~ i f tivision, ~h~~ transfersbanner Year. Almost 10,600 searches were which were in addition to bulk transfers irmade, a gain of 5 pucent. To answer the various classes from depoaits in prtviourquestions involved in these searches some yem, constitute an increase of well ovel68,000 titles were reported, a gain of 21 6 percent, and include most of the currentpercent. book, periodical, music, and map produc-tion of the American publishing industry.

The efforts of the Compliance SectionOfficial Publications of the Refertnce Division to obtain compli-ance with the registration and deposit re-

publication of the issues of the Cata log of quirements of the copyright law resulted inCopyright Entries continued at a nearly more than 12,000 registrations, an increasenormal schedule, although the time lag in of some 9 percent over fiscal 1963. Thepublication created in 1962 and 1963 by copies depositedas he result of this activitylosses of experienced penonnel has not yet were valued at more than $228,000, andbeen ovtrw me Themrap h i c a l f o m t fees wen received totalingmore than $52,-


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4 REPORT OF THE REGISTER OF COPYRIDHTS, 1964000. Correspondence and meetings con-cerned with efforts to obtain deposit ofcopyright record sleeves and album jacketscontinued throughout the year.

Administrative DevelopmentsThroughout fiscal 1964 one of the most

pressing problems facing the CopyrightOffice was the registrability of computerprograms. Mcia ls engaged in consider-able research into the background of theproblem and participated actively in meet-ings, discussions, and correspondence aimedat resolving the two basic questions in-volved: (1 whether a computer programas such is the "writing of an author" andthus copyrightable, and (2 ) whether a re-production of the program in a formactually used to operate or to be "read" bya machine is a "copy" that can be acceptedfor copyright registration.

In April 1964 these doubtful questionswere decided in favor of registration. TheOffice announced, however, that before acomputer program will be registered itmust meet the following requisites:

(1) The elements of assembling, se-lecting, arranging, editing, and literaryexpression that went into the compilationof the program must be sufficient to con-stitute original authorship.(2 ) The program must have beenpublished with the required copyrightnotice-that is, "copies" (i.e. reproduc-tions of the program in the fonn in whichthe content is perceptible, or capable ofbeing made perceptible, to the humaneye) bearing a notice of copyright musthave been distributed or made availableto the public.

(3) The copies deposited for wgistra-tion must consist of or include reproduc-tions in a language intelligible to humanbeings. Thus, if the material was pub-lished only in a form that cannot be per-

ceived visually or read, it was agreedthat a readable form such as a print-outof the entire program would have to bedeposited also.In the past, the Copyright Office has

undoubtedly made registration for a num-ber of computer programs as parts of largerworks such as books and periodicals. Thethree registrations made near the end of theyear, however, were probably the first forcomputer programs as such, and for thisreason they attracted a great deal of atten-tion and publicity. There are indicationsthat the Office's decision is being givencareful consideration. by those concernedwith the development of this vitally im-portan t technology.

Difficult problems continued to arise inconnection with the deposit of copies ofelectronic musical compositions since noadequate system exists for notating pre-recorded electronic, vocal, or other sounds;in at least one case an oscillogram was ac-cepted as a "copy" of the musical composi-tion. Works written by U.S. Governmentemployees also continued to cause a greatdeal of correspondence to determinewhether they are "publications of theUnited States Government" and thereforewholly or partly uncopyrightable. Prob-lems presented by the manufacturing clausewere intensified by rapid advances in thetechniques of book production. Two recur-ring questions were when to require state-ments of new matter in certain classes ofmaterial (notably maps and music) as wellas how to word acceptable statements andwhat cor.,titutes the "best edition" of a m etion picture that has been distributed inmore than one size or by more than oneprocess.

A major organizational change tookplace in the Examining Division in August1963, when the examination of books andperiodicals was merged in fact as well asin theory. Although both operations hadcome within the jurisdiction of a single


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REPORT OF T H E R E GI ST E R OF COPYRI(section for many years, in practice the han-dling of books and periodicals had beenkept entirely separate, with resulting dif-ficulties. The merger of the operationswas not without its own problems, but thereis reason to hope that the benefits fromthe change will outweigh the disadvantages.Although the Examining Division made anumber of procedural changes in an effortto expedite the processing of assignmentsand other documents, it became increas-ingly apparent during the year that theindexing of the documents is a functionthat can be handled more quickly andefficiently in the Cataloging Division. Adetailed plan for shifting the operation wasformulated, developed, and approved andwas ready to be put into effect as the yearended.

In the Reference Division changes worthnoting included the establishment of a pro-cedure whereby letters enclosing a searchfee can be sent to the Reference SearchSection on the day of their receipt in theCopyright Office; the sending (on an ex-perimental basis) of reports to attorneyswithout receiving the search fee in advance,in cases requiring no more than 2 hounof search time; the undertaking of a largepart of the operational liaison between theCopyright Office and the Bureau of Cus-toms; and continued work on the compila-tion of pre- 1909 copyright cases.

In January 1964 the Cataloging Divisionsupplied expanded imprint statements forall materials issued in book format andmore specific terms of physical descriptionfor many classes. I t prepared and distrib-uted extensive revisions of the copyrightcataloging rules in order to implement andsystematize these practices, and it gave con-tinuing attention to other sections of therules. From entries originally recorded on4 x 6 forms, photographically reduced cardswere produced for periodical registrationsfor the 1946-54 segment of the CopyrightCard Catalog and claimant cross-references

769-601 -9

to them were supplied. As the result ofthe increased workload and the need forbetter control of incoming material, theService Division inaugurated a new systemof forwarding material to the ExaminingDivision. This innovation proved helpfulin assuring that cases are handled in ac-cordance with their date of receipt. TheExamining Division undertook a majorchange in its methods of keeping weekly,monthly, and annual statistics.

In February 1964 the Service Divisioncompleted a project of sorting and boxingall of the copyright applications datingfrom 1898 through June 30, 1909, andtransferred 1,767 boxes of applications tothe Federal Records Center in Alexandria,Va. In order to free badly needed shelfspace, the Office also agreed to destroy cer-tificate miling records after 5 years, andto transfer letter books of correspondence(carbon copies) to the Records Center afterthe same period.

In September 1963 the Service Divisionbegan making photocopies of certain copy-right deposits, applications, and corre-spondence requested through the Library'sPhotoduplication Service. This givesquicker and more efficient service by reduc-ing the amount of handling and by provid-ing safeguards not heretofore possible.

More than half of the application form,in use in the Copyright Office were revisedduring the year. The most difficult revi-sions involved the wording, on Form A,of the affidavit of domestic manufacture.Representatives of the Book Manufac-turers Institute argued that the wording ofthe affidavit form in use for the past severalyears encouraged some publishers to havebooks produced from imported reproduc-tion proofs and that it should conform moreclosely to the language of section 17 of thestatute. This question was also discassedwith representatives of the book publishingindustry, and efforts to arrive at languagewhich conforms with the statute and yet


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6 REPORT OF THE REGISTER OF COPYRIGHTS, 19 4leaves the "repro proof" question openwent on for more than a year.

Revisions worth noting were also madein one of the Office's most important infor-mation circulars: Circular 35 entitled Gcn-era1 Information on Copyright. Not onlywas the wording revised and the text re-arranged, but the format was alm com-pletely changed in an effort to make amore attractive and readable circular.

All four divisions continued to emphasizestaff training during 1964. Staff memberstook advantage of programs offered withinthe Copyright Office and elsewhere in theLibrary of Congress and also courses andseminars presented by the General ServicesAdministration, the Government PrintingOffice, and the University of Illinois Aller-ton Park Conference on Research Methodsin Librarianship. On October 3, 1963, anallday seminar on copyright problems wasconducted for 34 representatives of theProtestant Church-Owned Publishers' As-sociation, and a d l a r meeting with repre-sentatives of music publishing firms washeld on May 15,1964.

Among the many distinguished foreignvisitors to the Copyright Office in fiscal1964, one stands out as deserving specialnotice. As part of a 4-month UNESCOfellowship n copyright law, Abdur RahmanKhan, Section Officer of the Ministry ofEducation of Pakistan, spent several weeksin the Copyright Office. As an official whowill be charged with duties connected withthe new Pakistan copyright law, Mr. Khanwas particularly interested in studying gov-ernment administrative problems in thecopyright field.Legislative Developments

Because of the great amount of atten-tion given to the program for general re-vision of the copyright law, other legislative

activity in the copyright field during fiscal1964was relatively meager. As recountedin last year's report, several bills were in-troduced in the 88th Congress to repeal oramend the jukebox exemption now con-tained in section 1(e) of the copyright law.One of these, H.R. 7194, which was intro-duced by Representative Celler on June24, 1963, would repeal the exemption butwould provide that no proprietor of a juke-box location would be held liable for in-fringement unless he either owned or con-trolled the jukebox or refused to identifythe owner. This bill (which was also in-troduced by Representative Seymour Hal-pern asH.R. 8457 on September 17,1963)was reported out of the full House Judi-ciary Committee as of September 10, 1963,with a majority report by RepresentativeEdwin E. Willis strongly supporting thebill and two statements of minority views,by Representatives Byron G. Rogers andRoland V. Libonati, strongly opposing it.The bill was put on the House Calendarand the Rules Committee held hearings onit on June 10, 1964, but it was awaitingfurther Rules Committee action as the fis-cal year ended.

Efforts to secure enactment of legisla-tioh for the protection of original orna-mental designs of useful articles continuedthroughout fiscal 1964. As the year beganthere were four identical bills pending inCongress: H.R. 323 (Flynt), H.R. 769(Ford), H.R. 5523 (Libonati), nd S. 776(Hart-Talmadge) . The Senate hadpassed an earlier version of the bill duringthe 87th Congress, and on December 6,1963, it again passed the bill, following afavorable report submitted by SenatorPhilip A. Hart on December 4, 1963. On.December 12, 1963, the House JudiciaryCommittee held a 1-day hearing at whichthe preponderance of the testimony favoredthe legislation. In the weeks that followedthe hearing, however, there were reports


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REPORT OF THE REGISTER OF COPYRIOHTS, 1964of strong opposition by certain retail mer-chandising and garment manufacturing in-terests, related largely to the feared impactof design protection on the wearing apparelindustries. Serious attempts were made tocompromise the conflicting views and towork out statutory solutions satisfactory toboth sides, but no further action had beentaken by the House Judiciary Committeeas the year ended.

In October 1963 Congrelrs enacted, asPublic Law 88-155, a joint resolution deal-ing with a revised manual of Senate pro-cedure prepared by the Senate Parliamen-tarian and Assistant Parliamentarian. Thismeasure provides that the work shall besubject to copyright by the authon, "not-withstanding any provisions of the copy-right laws and regulations with respect topublications in the public domain." Sen-ate Report No. 785 on the Foreign Aid andRelated Agencies Appropriation Bill of1963 includes a section on unauthorizedreproduction of American books and re-cordinn in Nationalist China: the Com-

Judicial DevelopmentsActions Pending Against theRegister of Copyrights

During the year there were two rulingson motions in the famous case of PublicAflairs Associates, Znc. V. Rickover, whichhas been pending in the coum for over 5years, and in which the Register of Copy-righb and the Librarian of Congress areboth defendants. In July 1963 the DistrictCourt sustained all of the objections madeon behalf of the Reghter, the Librarian,and the other Government deftndants tothe voluminous interrogatories which theplaintiff had asked them to answer; Adm.H. C. Rickover was required to answer four .of the interrogatories addressed to him.Later in the year arguments were heard ona motion to pruduce certain documentsfrom the Copyright Office files; the courtordered the Department of Justice to makethe documents available to the plaintiffsince there was no claim of privilege with...mittee states its view "that the Nationalist respect to than.A new action in the nature of mandamus,Government of China should cooperate in Armstrong Cork Co. V. Kaminrtein, wasan effort to recognize the rights of Ameri- filed in the District Court for the Districtcan publishers of books and recordings not- of columbia on J~~~~ 16, 1964 ( ~ ~ ~ kwithstanding its registration laws, in view N ~ ,19-6)). m i s action seeka toof the assistance this country extended and the &&ster to make rnRistation for thecontinues to extend in its behalf," and re-

quests the State Department ''to continueits unrelenting efforts to protect the rightsof American companies!'

Although none of the pending bills aimedat granting tax relief to authors was actedupon during the year, the Revenue Act of1964 (Public Law 88-272) contained pro-visions which would help to relieve some ofthe author's tax burden. The act containsa provision enabling any taxpayer with awidely fluctuating income to average 1year's unusually large income over a periodof 5 years, and eliminates the necevity forrecomputing the taxer of earlier yean.

- -design of Armstrong's "Montina" flooring.The application in this case had originallybeen questioned because the wpier of theflooring deposited were not identical, but itdeveloped in the course of wrrupondenceand a series of interviews that no two seg-ments of the flooring can be identical sincethere is no fixed design that is repeatedthroughout the goods. The patterns areproduced haphazardly as the result of vinylchips falling at random through a hopper,and neither the shape of the chips nor thelinear patterns are subject to control.Thus, as set forth in the answer to the com-plaint filed on behalf of the Register, regis- .


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8 REPORT OF THE REGISTER OF COPYRIDKTS, 1 9 6 4tration has been ttfused on the ground that ties Corp., 223 F . Supp. 866 (S.D.N.Y.the "design" does not constitute the "writ- 1963), granted a preliminary injunctioning of an author." against the sale of dolls dressed in clothing

similar to that used by the plaintiff on itsSubject Matter of Copyright Protection "Tammy" dolls on grounds of unfair com-petition, it ~efused ecovery for copyright~e fc nd an ts n copyright infringement infringement on the ground that plaintiffsactions involving axn~-~~ercia lesigns con- copyright extended only to the unclothedtinued to raise issues of originality and doll, "judging from the description 6do]lycopyrightability, usually with little success. in the claim asFor example, a textile fabric design em- The familiar problem of the copyright-playing "Of the C1eo~atraera commercial labels, this time forboth in and dress" was furniture wax, came before the Ninth Cir-original in John Wolf Textiles, Inc. v. cuit courtf Appeals in Drop Dead Co.Fabrics, Inc., 139 U.S.P.Q. 365 v. S. C . Johnson, lnc. , 326F . 2d 87 (1963),P.D.N.Y. 19621, and in Loomskill, Inc. v. ,,,t. denied, 377 U.S, 907 (1964). InSlifka, 223 SUPP.845 (S.D.N.Y. 1963) answer to defendant's argument that thea f d per 330 F. Zd 952 (2d Cir* label was uncopyrightable because it was

9 the in largely textual and "used solely to laud thefabric designs adapted from an "Audubon and instruct in its plaintiffbook of birds" on the:ground that "prrscnt- awed that it was not claiming separateing old material in a new plan or arrange- copyright in the instructions and ph-~,ment is sufficient to lend copyrightability to or athe exclusive right to the use of ovalsthe resulting work." On the other hand, or gold foil as such," but that iuJudge in Manes FabriG '0 . The coven only "the total embodiment of theAcadia Co., 139 U.S.P.Q. 339 (S.D.N.Y. elements of its entire original1960), noted that "the 'style' of plaintiff's label.m In holding for the onfabric is apparently derived from illumi- grounds that "the liberal~ than thenated medieval manuscripts and other lstric. mle of what canstitUtes cap*ht-works of rt in the public domain, and it is able matter been followed in the ~i~~therefore entitled to Iw broad protection the court upheld copyright in thethan if the style were wholly original with ,,particularly and pculiarly' it," and added that "the colon in the spec- bodying the numerous commonplace ele-. trum have not been successfully removed menu contained in it," and ruled thatfrom the public The mpyright- ."jamswhich go beyonda meR hAmarLability of color schemes wpa also rejected in are copyrightable; if a label hasClarion Textile Corp. v. Slifka, 223 F. , it no longer isSupp. 950 (S.D.N.Y. 1961). mere label.' "In Remco Industries, Inc. v. Goldberger recurrent problem, that of theDoUM f g . c o -9 141 U.S.P.Q. 898 (E.D.N.Y. copyrightabilityof trade Was care-1964), the court granted a preliminary in- fully analyzed in PIC Design COT#.v. Ster-j"nction against infringement of copyrightin "a doll approximately five inches tall, ling Precin'on Corp., 231 F . Supp. 106representing a male figure wearing a dark (S.D.N.Y. 1964). While upholding plain-suit and exhibiting a 'mop, haircut- iffs copyrights on grounds that "the de-ciated with the musical group known as gree of originality lecessary to sustain athe Beatles." In contrast, although the copyri&t is very low," Judge Ryancourt in Ideal To y Corp. v, Adanta Nouet that the figures and formulas in tables of


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REPORT O F T H E R E G I ST E R O F C O P YR I G H T S, 19 6 4 9specifications are facts in the public do- and purposes, his personality, a form of artmain; he also cast doubt on the copyright- expreaion, and his distinctive and valuableability of the tabular arrangement of the property."figures and ruled against the-opyrightabil-ity of the "format" or "visual impact" of Notice of copyrightthe catalog. In A dd is on -W es le y ~ u b l k h -ing C o . v. Brown, 223 F. Supp. 219(E.D.N.Y. 1963), the court upheld copy-right in the problems appearing in physicstextbooks, including some taken fromearlier books, on the basis of "the concep-tion, organization and presentation of ma-terial whether new or oldn; and the copy-rights in a rock and roll song and in apiano arrangement of it, even though"trite" and "commonplace," were upheldin No m Music, Znc. v. Kaslin, 227 F. Supp.922 (S.D.N.Y. 1964).Several cases during the year involvedactions under State law for common lawor statutory copyright infringement.Three cases-Colvig v. K S F O , 140U.S.P.Q. 680 (Cal. Dist. Ct. App. 1964) ;Borden v. Andrews, 139 U.S.P.Q. 557 (Cal.Super. Ct. 1963); nd Land v. Jerry LewisProductions, Znc., 140 U.S.P.Q. 35 1 (Cal.Super. Ct. 1964) recognized that protec-tion under California law is available for"a particular combination of ideas (whichpresupposes the expression thereof), or theform in which the ideas are embodied,"and that ideas as such may be the subjectof contract. A television game format wasalso held "tangible enough physical prop-erty of value in such concrete form" toallow recovery in New York on a theory ofimplied contract in Robb iw v. FrankCooper Associates, 19 App. Div. 2d 242,241 N.Y.S. 2d 259 (1st Dep't 1963). Inanother case arising under New York law-CBS v. Documentaries Unlimited, 42 Misc.2d 723, 248 N.Y.S. 2d 809 (Sup. Ct.1964)-a news announcer was grantedcommon law copyright protection not onlyin literary material of his own compositionbut also in his "voice and style of talking,"which the court regarded as "to all intents

The perennial problem of the statutorynotice requirements continued to producelitigation during fiscal 1964, with decisionsexemplifying both the "substantial compli-ance" and the "strict construction" schoolsof thought on the subject. Selvage noticeson textile fabrics were upheld in John WolfTextiles, Znc. v. Andris Fabrics, Znc., 139U.S.P.Q. 365 (S.D.N.Y. 1962), CortleyFabrics Co. v. Sl i fkq 138 U.S.P.Q. 110(S.D.N.Y.), a f d p er c ur iu m, 317 F . 2d924 (2d Cir. 1963), and Loomskill, Znc.v. Slifka, 223 F. Supp. 845 (S.D.N.Y.1963),af'd per curiam, 330F . 2d 952 (2dCir. 1964). In the Cortley case, wherethe selvage notice was "engraved on therollers and mechanically imprinted on eachand every repeat," Judge Levet ruled thatthe defendant had failed to sustain its "bur-den of proving that the notice of copyrightcould have been incorporated in the bodyof the design." In Loomskill the questionwas closer since the notice was added toselvage of the finished goods after it hadbeen printed, the design itself containedsome printed matter, and the plaintiff of-fered no evidence on the question. JudgeWyatt, with some misgivings, however, up-held the notice because, he said: "Lookingat the fabric design itself, it is difficult tosee how the copyright notice could be putin the relatively small boxes without de-stroying the effect."

A surprisingly strict attitude toward thenotice requirements was taken by the Sev-enth Circuit Court of Appeals in O ABusiness Publications, Znc. v. DavidsonPublishing Co., 334 F . 2d 432 (1964). I tinvalidated a notice appearing under themasthead on page 3 of a newspaper onthe ground that it was not "on the titlepage" or "under the title heading," since


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10 REPORT OF THE REQIST ta OF CO PmHT 8 , 1964"the purported masthead . . . canies onlypart of the registered title and no volume ornumber of issue." The work involved inNeal v. Thomas Organ Co., 325 F. 2d978 (9th Cir. 1963), cert. denied, 379 U.S.828 (1964), was an instruction manual forplaying the organ; the title appeared on thefront cover, the rcversc of the cover wasblank, and the notice appeared on thenext (or third) page. The court, whichhad a great deal of difficulty with thisquestion, said it recognized that "there islittle room here for 'liberal interpretation'or for a consideration of 'Congressional in-tent,' " and that strict compliance wouldhave rtquiml "placing the notice of copy-right on the cover or on the fourth page,if the work is a musical composition, or onthe second page, if the work is a book."The court held that the third page can-not be considered the "title page*' since itdoes not bear the title, but it upheld thenotice, limiting ita opinion "to the peculiarcircumstances of this cae in which thetitle appears only on the cover and in whichthe cover is of a harder and less malleablematerial than the leans within."

An important and previously unresolvedquestion was dealt with in Nom Music,Inc. v. Kozlin, 227 F. Supp. 922 (S.D.N.Y.1964):Can he assignee of copyright in anunpublished work use his name n the copy-right notice when the work is published,without fint recording his assignment?The court ruled that the use of thesignce's name in this situation is permissible,and that section 32 of the statute appliesonly where the work had previously beencopyrighted in published form.

Ross Products, Inc. v. New York Mer-chandise Co., 141 U.S.P.Q. 652 (S.D.N.Y.1964)' held that the notice requirementsof neither the statute nor the UniversalCopyright Convention were satisfied by theword "Copyright" accompanied by a num-ber refemng to a Japanese patent, appear-ing on a hang-tag, although the court

refused to rule upon the efFicacy of aforeign-language notice. I t also declinedto decide upon the ultimate validity of theCopyright Office regulation requiring anotice of copyright on copies of a work asfirst published abroad, deciding only thatthe regulation is valid and controllingwhere the author-proprietor is an Ameri-can citizen.Publication

There were several decisions during theyear involving the troubled question ofwhat constitutes a "publication" that willdestroy common law rights in a work.Possibly the most significant waa King v.Mister Maestro, Inc., 224 F. Supp. 101(S.D.N.Y. 1963), which involved the rightof Martin Luther King to enjoin the un-authorized distribution of phonopphrecords of his famous speech "I Have aDream*' as delivered during the FreedomMarch in Washington. The court decidedthat neither the delivery of the addressbefore a vast public audience and overradio and television nor the distributionto the press of copies of the advance text ofthe address without copyright notice con-stituted a "general publication" that de+stroyed the common law copyright S i i -larly, the court in CBT v. Documentatjes,Unlimited, 248 N.Y.S. 2d 809 (Sup. Ct.1964), referred to the ''well-settled rule"that "public performance of a work, such asdelivery of a speech, singing of a song, orreading of a script, whether given in publicor over the radio or television, is not sucha general publication asconstitutesa dedi-cation to the public or places it in thepublic domain, with consequent loss ofcopyright."

The court in Nom Music, Inc. v. Kaslin,227 F. upp. 922 (S.D.N.Y. 1964), withoutrefening to the line of cases leading to theopposite conclusion, stated : "It is clear ...that a phonograph record is not a copy of amusical composition and n a d not contain


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acopyrightnolioe, narisaralcdtbetbe tgcwxldbkatonabrwad,an answer dlchmighta pubtications of the underlyingw e have cawed the Co-t Mficc to refecttion,"' A thoreughanrliyrbofthecrsc aw h'U appEcah,'' and stated that " m d yand other8urhwitiasinwdving publication this unapldned of a matddand thep m t l o nof rchikcturdptnr is fact. .. astlldoubt on the M t y f thocontalnadinthe@don of the hhachu- qht~atfmW..wts Supnrna CoUFt in &!gat H. WoodArroeirrtar, lac. v. Shw* 197 N.& 2d 886 -d 4 wnanhip 'Ifft(19%). It d u d a d that th e fiquindfiling of plans with aWMhg dqartmcntor other govemrncat otiia u a "limited"rather than a "gcnurPP' pddhdm, andthat sinca a structureis the nrult of ptanrbut not ampy Of theq the mutm&mdopeningdrbuildiagionotrpublica-tinnofdrcplulr.

Thcnmrrr*rcorraiiatsmrtSngbciciblu dealing with copyright regismdolland ib &acts. Tfre now quitaw c l l ~ ~ . t 3 1 p t a c a r t i f i c n t e o f ~tratkm conktitutupkim facie rrridclrca ofthe vatilrtsty of tbe coWnight it& w m-iberuted in Addirolt-Wbs&yPltb&hing CO.v. Brown, 223 F. Supp. 219 (E.D.N.Y.f963), Hedmtan Pzodo~tsCw.v. Tap-Rite h d w h ., 228 F. Supp. 6%(D.N.J.t964), and Drop Du d Co.Y.S.C.JoAnso~,26F. d 87 f9thCir. 1963), curl.deaied, 377 US.W7 (1%). The courtin the Drop Dsod cam, in thb conmcc&n,rejected d d e n b t ' ~ q p m n b thot u t kCopyrightQfiiaisameredepdtory;' andthat "there u nod km t h n theCopyAghtOffice,psthGnirinthcPatattoitieb,art~what ir gbpyrigbtabIeandwhat isnot.*In ROB roductJ, I*. v.N w wkMe*chdndite Co., 141 U.S.P.Q. 652 (S.D,N.Y. 19641, a preliminsay injunction wmrefused on twog~arndq neof wbich wasthe posi'bility of "fraud and intart to dt-ceive and misrepresent'' by theo m i d of"certain rc?lmmt informath . , . in thecgYyright ngistration form!' The courtnoted that "ploirr6@did not till in any an-swer to tho qucsdcm concerning possible

A p d t e m that theGpydghtumcc has~ncuuatedmon than once klde x d n i n g was "molved in Hrpurmd vRabbfnr Music Cdtf., 142 W S P a 53(N.Y, Sup. Ct. 1%). This la the m=calicd "cut-ht a& nderwhicbande~tmIndcrolperZarmerlslncwcNX t l y ~ t e d o n t h e a 3 p i ~ l o f a t o n g dintderoecrritrrdthcCa*tm7m4lrontoftbawth0l.a. Althougatttsrrwrtin the H col# illgreed that "Pwl~ ~ ~ n s a ~ p a r o t d t h e m u d eend as am-authorofthe lgrrtcrhadaorighta whPltautr" 'M tbe &mew4em#?#tF k Z d top t s u m a r p udgmentua hegmund chat, becausepayment ofmpfrtacontinued a f emd, laintiff may bec . e m to deay wbi-'~~ auttlodpThc quation in T.A Hams Co. v.&cu, 226 F.Supp.337 (S.D.N.Y. 1964),was w h d w 3 n a dirpute ovet a w d paf a renewalcopyright,any Gd-(bts, "any act which urns,~~ orthreatens the aqq&ghbn) hrd takenpiece&at would jurtify Fcdcrai jurisdiction.Tbc held thot neither a State cwrtactbn to establish ownenh'ap nor thc and-ing of le-n clatn'mg mpdtiu amrtitutedinfringement. It also held thot itwar Mtinfringement fordefendant tomakt an as-~maitofhirr~llOWBjclahattorecoFdthe asripmmt in theCopjdgbtOfffctCd srpitc plaintiffr agummt that this actplaced a cloud upon its title; the courta M t d that the New YorL Supreme Coutt"has jurirdion of thc qucatim of titlaand, if the fa& warrant it, p ~ w o ro com-pel E l h o execute an assig~mcatC birinterest and a canmirrtion of tbc assign-


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12 REPORT OF THE REOrSTER OF COPYEUOHTS, 1964ment filed in the Copyright Office." A fa-miliar principle that "a license from a-

older of a copyright immunizes the li-censee from liability to the other co-holderfor copyright infringement" was confirmedin McKay v. CBS, 324 F. 2d 762 (2d Cir.1963), and there is an implication in Ad-dison-Wesley Publthing Co. v. Brown, 223F. Supp. 219 (E.D.N.Y. 1963), that text-books written on special commission arcnot "works made for hire" within themeaning of the present copyright statute.International Copyright Protection

Two cases during the year dealt with theprotection and requirements of the U.S.copyright law with respect to works fintpublished abroad. In Ross Products, Znc.v. New York Merchandise Co., 141U.S.P.Q. 652 (S.D.N.Y. 1964), the courtheld that, under the particular circum-stances, the placing of copies of a work onpublic sale in Japan constituted a generalpublication that put the work in the publicdomain in the United States. The ques-tion in Beechwood Music Corp. v. Vee JayRezords, Znc., 226 F. Supp. 8 (S.D.N.Y.) ,af d per curium, 328 F. 2d 728 (2d Cir.1964), was whether the authorized manu-facture and sale of records in a foreigncountry required the filing of a notice ofuse in the Copyri@- Office in or du to beentitled to royalties for the manufactureand sale of records in the United States.The lower court held that there is "nosupport for the contention that the Copy-right Act itself, and j 1 (e) in particular,has the extraterritorial effect claimed forit," and the Court of Appeals agreed that itwould be "quite unreasonable to construethe condition of the compulsory licenseclause . . . asbeing satisfied by the manu-facture of records in a foreign country, atleast when these have not been broughtinto the United States!'

Infringement and theScope of Copyright ProtectionUndoubtedly, the most entertaining and

well-publicized decision of the year wasthat of the Second Circuit Court of Appealsin Berlin v. E. C. Publications, Znc., 329 F.2d 541 ( 1964), cert. denied, 379 U.S. 822(1964), which held that publication inMad Maguzine of "satiric parody lyrics" ofcopyrighted songs was fair use rather thaninfringement since the p a d i e s had"neither the intent nor the effect of ful-filling the demand for the originat" andsince there was no substantial appropria-tion. Another musical infringement case,Nom Music, Znc. v. Kaslin, 227 F. Supp.922 (S.D.N.Y. I%), contains a painstak-ing and interesting comparison of the musicand lyrics of two rock-and-roll songs.

The special problems of pmof arising incases involving infringement of copyrightedcatalons were dealt with in Hedeman Prod-- -ucts Corp. v. Tap-Rite Products Corp., 228F. Supp. 630 (D.N.J. 1964), and PIC De-sign Corp. v. Sterling Precision Corp., 231F. Supp. 106 (S.D.N.Y. 1964). I n theHedeman case the defendant argued thatcopying must be ''material and substantial"in order to constitute an infringement andthat, since defendant had copied less than1 percent of the total page area of plain-tiffs catalog, no infringement had beenestablished. The court held, however,that "the 'material and substantial' test isnot . . . to be applied to plaintiffs entirecatalog but to each component part [i.e.,each illustration] which has been in-fringed!' The court in the PICcase notedthat copyright in a catalog protects theillustrationsbut not the p d u c t s llustrated,but that "sufficient latitude exists in thedraftsman's art of illustration to make sus-pect any drawing exactly reproducing onein a prior circulzted catalog!' While ac-knowledging that it would ordinarily beimpossible to prove infringement of a tableof figures in the public domain, the court


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REPORT OF THE REUISTER OF COPYR1(held that, where "the same errors (or'printer's traps') appear in an earlier andlater publication, it is fair and reasonable. . . to infercopying,"Three fabric design decisions reportedduring the year-Manes Fabric Co. V. TheAcadia Co., 139 U.S.P.Q. 339 (S.D.N.Y.1960)' Clarion Textile Corp. V. Slifka, 223F. Supp. 950 (S.D.N.Y. 1961)' and Con-dotti, Znc. v. Slifka, 223 F. Supp. 412 (S.D.N.Y. 1963) a11 involved cases in whichthere were strong similarities betweenplaintiff's and defendant's designs, thecolor schemes were the same, and a degreeof copying could be inferred. In each in-stance, however, the court ruled in favorof the defendant on the ground that hehad "not passed the bounds of idea appro-priation." As stated by the court in theManes case: "There is an important dif-ference between a slavish copy which altersa few details and an independent work ex-ecuted in similar colors and in a similarstyle."

A novel question concerning the extentof protection under a copyright arose inAddison-Wesley Publishing Co. v. Brown,223 F. Supp. 219 (E.D.N.Y. 1963) :whether publication of answers to prob-lems published in physics textbooks con-stituted infringement rather than fair use.The court suggested that the conversion ofplaintiffs verbalisms into symbols, signconventions, equations, and graphical rep-resentations might actually be consideredan unauthorized "translation," and heldthat their publication constituted an in-fringement since the solutions were specif-ically keyed in with the questions, includedstudied paraphrases, and had no independ-ent viability.

Two cases during the year dealt with theimportant question of what constitutes a"public performance for profit" of a copy-righted musical composition. In Lernerv. Schectman, 228F. Supp. 354 (D. Minn.1964), the performrncc in "a bona ficle

membership club," not open to the generalpublic, was held to be a "public perform-ance for profity' on grounds that "therewere no meaningful qualifications formembership" and that "the membershipserved no function in relation to the or-ganization or operation of the club."Chappell & Co. v. Middletown FarmersMarket @ Auction Co., 334 F. 2d 303 (3dCir. 1964), dealt with performances fromrecordings of copyrighted music played inthe central office of a large merchandisemart and transmitted over a system of 58loudspeakers located throughout the de-fendant's premises and parking lot. TheCourt of Appeals ruled this an infringe-ment, holding that the ownership of law-fully made records does not carry with itthe right to perform them publicly forprofit, and that, whether or not the play-ing of the records was connected with theirsales promotion, their performance wasan infringement since "it was commerciallybeneficial to the Mart to have an attrac-tive shopping atmosphere."

The widespread problem of "fake-books"(unauthorized compilations of the melodylines of hundreds of popular songs)reached the courts in Shapiro, BernsteinB Co. v. Bleeker, 224 F. Supp. 595 (S.D.Cal. 1963), which held a retail vendorliable on grounds that the copyright lawgives "not only the exclusive right to copy,but also to vend the copyrighted work."

Practical problems of procedure in in-fringement actions were involved in Elec-tronic Publishing Co. v. Zalytron TubeCorp., 226 F. Supp. 760 (S.D.N.Y. 1964),and Leo Feist, Znc. v. Debmar PublishingCo., 232 F. Supp. 623 (E.D. Pa. 1964).The Electronic case involved a catalogwhich plaintiff had prepared for a corpora-tion not a party to the action. Defendantsmoved to dismiss for failure to join an in-dispensable party, but the court denied themotion. The Feist case involved the al-leged infri-ent of "In a Little Spanish


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14 REPORT OF THE REGISTER OF COPYRIOHTS, 1964Town" by "Why," a question previouslylitigated in England by the same parties.The defendants contended that the matterwas res judicata since the English courthad found that there had been no copying.The court ruled for defendants, holdingthat although the principle of res judicatawas not applicable because the Engiish andAmerican suits were brought under differ-ent statutes and for different .acts of in-fringement, the doctrine of collateral es-toppel would apply to a fact litigated in aforeign court.Remedies for Infringement

One of the most unsettled in thecopyright law is that dealing with the statu-tory remedies for copyright infringement:damages, profits, injunctions, attorneys'fees, etc. One of the most important de-cisions on these questions in recent yearswas rendered by the Second Circuit Courtof Appeals in Peter Pan Fabrics, Znc. v.Jobela Fabrics, Inc., 329 F . 2d 194 (1964),which held that recovery under the copy-right law is " cumulative,' encompassingboth net profits of the infringer and dam-ages of the copyright holder," rather than" alternative,' allowing either profits ordamages, whichever is greater." More-over, even though only actual profits hadbeen proved, the court held that a higheraward under the statutory damages pro-vision was permissible. In Fruit of theLoom, Inc. V. Andris Fabrics, Inc., 227 F.Supp. 977 (S.D.N.Y. 1963), an award ofactual damages based on estimated loss ofpotential sales of 75,000 yards was upheld,even though plaintiffs unsold inventoryconsisted of less than 10,000 yards, on theground that "defendant's actions destroyeda substantial and promising market."Tbt confused question of how many in-fringementa there are in a case for purpwisof computing statutory damages arose inNedeman Products Cork. v. Tap-Ri t e

Products Corp., 228 F . Supp. 630 (D.N.J.1964), and in Shapiro, Bernstein & C o. v.Bleeker, 140 U.S.P.Q. 111 (S.D. Gal.1963). In the H e d ~ m a n ase the courtheld that "tach copying by defendant of anillustration, which had been separately pre-pared by plaintiff, was a separate infringe-ment." In contrast, where the defendant's"fake-book" in the Shapiro, Bernstein casecontained 1,000 songs, 12 of which werecopyrighted by the plaintiff, he court con-sidered it "ob~ious'~hat a recovery ofeither $250,000 or $3,000 would be unjustand required proof of actual damages andprofits.

Mailer v. R K O Telerad io Pictures, Znc.,332 F . 2d 747 (2d Cir. 1964),was an actionby Norman Maiier for infringement ofcopyright in The Naked and the Dead,based on a clause in his contract with thedefendant film company under which mo-tion picture rights were to revert to him ifproduction of the film were not completedwithin a specified period. The Court ofAppeals held that the picture was sub-stantially compkted within the time pro-vided and upheld the award against Mailerof $5,000 as counsel fees on the p u n d that"this sort of litigiousness cannot be con-doned." Un ivers d Pictures Co. v. Schaef-fer, .l40 U.S.P.Q. 17 (E.D. Pa. 1963), wasone of the rare reported decisions dealingwith the seizure and impounding provisionsof the law; the court held that defendantwas guilty of civil contempt when he con-cealed or withheld from the Federal mar-shal copies covered by a seizure order andthat fines for contempt a n payabk toplaintiffs. In the "Beatle doll" case,Rem co Industries, Inc. v. Coldberger DollMfg . Co. , 141 U.S.P.Q. 898 (E.D.N.Y.1964), the court granted a preliminary in-junction because "the promotional nature'of the copyrighted dolls has a life spanwhich may be extraordinarily short," butrequired plaintiff to post security of$25,000.


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REPORT OF THE REGISTER OF COPYRUnfair Competition and Copyright

On March 9, 1964, the Supreme Courtof the United States handed down two d acisions,Sears, Roebuck & C o . v. Stiffel Co.,376 U.S. 225, and Compco Corp . v. Day-Brite Lighting, Inc., 376 U.S.234, whichpromise to have a fundamental effect onthe future of the copyright law and, indeed,of the entire field of intellectual and in-'dustrial property. Holding, in the wordsof Justice Black, "that when an article isunprotected by a patent or a copyright,state law may not forbid others to copy thatarticle," the decisions appear to restrict thescope of protection under theoriesof unfaircompetition and common law copyright,and to lend greater importance to statutorypatent and copyright law.

Like many another landmark case, Searsand Cornpco succeeded in raising morequestions than they settled. It seemedclear from the decisions, for example, thatif a work comes within the subject matterof the copyright statute and has been pub-lished, the States are preempted from giv-ing it protection equivalent to copyright.This conclusion is supported by the deci-sions in Duplex Straw Dispenser Co. v.Harold Leonard 07 Co. , 229 F. Supp. 401(S.D. al. 1964);M mtr o Plastics Co rp. v.Emenee Indwtries, Inc. , 141 U.S.P.Q. 31 1(N.Y. Sup. Ct. 1964); nd Wolf and Vins,Inc. v. Pioneer Display Fixture Co., 142U.S.P.Q. 112 (N.Y. Sup. Ct. 1964). TheNew York Supreme Court, however, inFlamingo Teletflm Sales, Inc. v. UnitedArtists Corp., 141 U.S.P.Q. 461 (1964),seems to reach a different result. It held,in an action involving the unauthorizedex-ploitation, distribution, and exhibition ofa television program incorporating a "sub-stantial segment" of plaintiffs uncopy-righted motion picture, that the rule ofSears and C om pco is limited to cases in-volving "copying," and is "to be distin-guished from the instant case where thecomplaint, essentially, is of an appropria-

tion of the very item licensed . . ., the useof the identical product for the profit ofanother."

Another question involves the status ofunpublished works: Are the States now pre-empted from protecting them if they comewithin the subject matter of copyright?The decision in CBS v. Documentaries Un-limited, 248 N.Y.S. 2d 809 (Sup. Ct. 1964),suggests that the preemption doctrine of theSears and Compco decisions doea not ex-tend to unpublished works, and the decisionof the Massachusetts Supreme Court, inEdgar H. Wo od Associates, Inc . v. Skene,197 N.E. 2d 886 ( 1964), contains a specificholding to that effect. A far more difficultquestion is whether the States may continueto offer the equivalent of copyright protec-tion to published works (such as recordedperformances and industrial designs) thatmay be "writings" within the Constitutionbut do not come within the scope of thepresent copyright statute. In Capitol Rec-ords, Inc. v. Greatest Records, Inc., 142U.S.P.Q. 109 (1964), the New York Su-preme Court followed its "appropriation-copying" distinction in the earlier Flamingocase and held that the "law of this jurisdic-tion is still '. . . that, where the originator. . . of records of perfonnances by musicalartists puts those records on public sale, hisact does not constitute a dedication of theright to copy and sell the records.' " Theultimate answers o these and other funda-mental quationefor example, whetherthe State can decide what is published andwhat is unpublished, and whether the Fed-eral Government, tself can give protectionequivalent tocopyright under trademark orother statutes-main for the courts toevolve in the months and years to come.Antitnrst Action

The ASUP consent decree was judiciallyinterpreted in United States v. AmericanSocie ty of C omp osers , Auth ors an d Pub-lishers, 331 F . 2d 117 (2d Cir. 1964), an


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16 REPORT OF T H E REGISTER OF COPYRIGHTS, 1 9 64appeal from a judgment denying petitionsby local television stations for the fixing ofnew "blanket license" and "per program"fees. The court affirmed the judgment onthe ground that the consent decree doe notrequire the granting of the kinds of licensesrequested.

International DevelopmentsThe international protection of intellec-

tual property passed another milestone in1964 with the coming into force of theNeighboring Rights Convention (the In-ternational Convention for the Protectionof Performers, Producers of Phonograms,and Broadcasting Organizations), signedatRome on October 26, 1961. In accord-ance with its terms, the convention cameinto effect on May 18, 1964,3 months afterthe sixth country had deposited its instru-ment of ratification, acceptance, or acces-sion. Three countries-Congo (Brazza-ville), Sweden, and Niger-had pdouslydeposited their instruments, and depositswere made by the United Kingdom on OC-tober 30, 1963, Ecuador on December 19,1963, and Mexico on February 17, 1964.Later in the year, Czechoslovakia accededto the convention subject to reservations,

and Congo (Brazzaville) filed notificationthat it was also making its accession sub-ject to reservations.

Additional adherences to the UniversalCopyright Convention by Greece, Peru,and New Zealand brought the membershipto a total of 48 countries, and Mexico rati-fied the Buenos Aires Copyright Conven-tion of 1910. During the year the Univer-sal Copyright Convention was made appli-cable to the Falkland Islands, Kenya, St.Helena, and Seychelles. Kenya becameindependent, howeve.r, on December 12,1963, and Zanzibar, to which the UnitedKingdom previously had declared theUniversal Copyright Convention applied,gained independence on December 10,1963. North Borneo and Sarawak, towhich the convention had also been de-clared applicable, are now members of thenew state of Malaysia, as is Singapore, withwhich the United States had copyright re-lations by virtue of a proclamation. Theproblems arising from the lack of copyrightrelations between the United States andthe many newly formed countries that havebeen created from former dependenciescontinue to increase; the table below at-tempts to show all of the independentcountries of the world and the basis oftheir copyright relations, if any, with theUnited States.


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us copyright office: ar-1964

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