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Ms. RINGER. The music itself has to be of a religious nature. It certainly could be jazz, but it would have to be a jazz mass or something like that. Certainly the popular forms have been used for religious

matters.

Let me say that SESAC has a very large catalog of gospel music. That is exactly what they are concerned about.

Mr. KASTEN MEIER. It is your recollection of the Senate provision that the music, the piece, the selection itself must be of a religious nature as well as the program in which it is

Ms. RINGER. Actually, this is in your bill too. This is subsection (c) of section 112. It has been in the bill for quite a while.

Mr. KASTEN MEIER. Playing nondramatic musical work of a religious nature, the work itself would have to be of a religious nature.

MS. RINGER. There is a referrant to that term already in the bill. There has been since-I am not sure of the exact date-but I would certainly say the 1964 or 1965 bill contained a provision in section 110 (3) dealing with works of a religious nature performed during services at a place of worship or other religious assembly. And there is some language in the report which emanated from your subcommittee dealing with that very phrase. It is not absolutely self-defining, but I think it expresses about as well as you can, what it had in mind here.

Mr. KASTENMEIER. If a particular transmission program were not really sponsored by a religious organization, but embodied a performance of a nondramatic musical work of a religious nature, presumably it would also qualify.

Ms. RINGER. Under 112, they are saying

Mr. KASTEN MEIER. 112(c). There is some confusion about that. I just wanted to get it straight in my own mind whether necessarily the religious work-the work would have to be of a religious nature and would also have to be in the context of a so-called religious program.

Ms. RINGER. First of all, the person doing the broadcast, the organization or person doing the broadcast must be a governmental body or other nonprofit organization. It does not have to be

Mr. KASTEN MEIER. For profit?

MS. RINGER. There is a term used called transmission program which is defined elsewhere in the bill, and it does not have to be of religious nature. It is the use of a nondramatic work of a religious nature. That is the key. The act-I guess this is the basic point-the act that is involved is the making for distribution by a nonprofit organization of a work of a religious nature, of a transmission program incorporating a work of a religious nature. The effort in the drafting is apparently to try to capture the very common situation that is now involved. I think, for example, Billy Graham's program was mentioned during the hearings, where he will go to a studio and tape a program of a religious nature obviously, but incorporating music of a religious nature, and it will be sent out by a nonprofit organization, which in his case, is his own organization, to commercial broadcasters, and he will either pay them to broadcast the thing or will give it to them free. Mr. KASTENMEIER. I was thinking of the opera "Moses and Aaron." It simply would qualify

Ms. RINGER. No; because it is dramatic.

Mr. RAILSBACK. Along the same line, what about modern songs that have religious themes? I am wondering about those.

Ms. RINGER. First, we are talking about a nonprofit organization making the program and sending it out without any commercial intention, and it is only one. In other words, this cannot be duplicated. I think the basic question is whether or not this is something your committee considers as appropriate as an ephemeral recording within the general rationale of exempting ephemeral recordings up to a point. The Senate obviously felt it was.

Mr. RAILSBACK. From the payment of mechanical royalties.

Ms. RINGER. Well, no, because I do not think this would be considered a recording under section 115.

Mr. RAILSBACK. On page 25

Ms. RINGER. This would be completely exempted. In other words, there would be no licensing, compulsory or otherwise. In other words, the religious organizations that have broadcast subdivisions would be able to continue what they are now doing as a practical matter, which is to use music without paying any royalties for it and without seeking licenses from anyone. SESAC is in a different position from the other performing rights societies on this point because they do not license mechanicals. Those rights are normally held by the Harry Fox agency for the music publishers, except for SESAC. SESAC controls not only performing but also recording rights.

Mr. KASTEN MEIER. If the gentleman from Illinois has no further questions, you can continue from there.

MS. RINGER. Thank you. I hope for the sake of the people who are here for this typeface issue, we can get to this today. I know some of them came for it.

Chapter VII deals with the broad question of works of art and designs, and I would say that on the basis of the testimony before you, the most controversial issue in this whole area is the question of the protection of typeface designs. I have tried in this chapter to review the legislative history of section 113 and title II which tie together. As I have tried to bring out, the history of the design bill as such which has now become title II of the Copyright Revision bill goes back before the current revision effort even began. And, in fact, I was struck by the fact there really was a feeling that the design bill would be enacted before the revision program even got under way. This turned out to be somewhat overly optimistic.

I do not think that anyone beyond a very few people will argue seriously that design patents are satisfactory for the protection of designs today. And I think I can spell out the reasons for this. They are very real.

Only about 3,600 design patents were issued last year, which I think indicates that not many people feel that they are of great economic value to them for one reason or another. The amazing thing that hap pened in this whole field is what I will try to summarize very briefly. For generation after generation, going back to the beginning of World War I, there were efforts to try to find some legal device to protect designs of useful articles. This has been a serious public problem ever since the United States became a major manufacturer of designed goods and an exporter of them. Practically every legal device you can

think of was tried at one point or another. It was a very active subject under the NRA codes, for example, which were later held unconstitu tional. A lot of emotion was generated on this issue. A lot of lawyers' fees were paid, and the results for the designers or manufacturers who originated designs were practically zero.

Lurking there all along was a possible interpretation of the copy. right law which, under the 1909 statute, protects works of art and other graphic works under language which did not contain a clear-cut answer as to whether or not designs could be protected under the present law. After 40 years of efforts to find other answers, a case began in the Federal courts which eventually reached the Supreme Court in 1954. On March 8, 1954-I am now reading from page 8-the Supreme Court, by a seven to two majority, in Mazer v. Stein, upheld the copyrightability of works of art that had been incorporated as the designs of useful articles. The Court strongly endorsed a Copyright Office regulation accepting as copyrightable works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects were concerned, such as artistic jewelry, enamels, glassware and tapestries, as well as all works belonging to the fine arts, such as paintings, drawings, and sculptures.

The Supreme Court actually, with approbation and with Justices. Douglas and Black dissenting, held-and I would like to run down the holdings: That works of art are copyrightable as the writings of an author, that original works of art do not cease to be copyrightable as works of art when they are embodied in useful articles, and for this purpose, the following factors make no difference whatsoever: First, the potential availability of design patent production for the same subject matter. Second, the intention of the artist as to commercial application and mass production of the design. Third, the esthetic value of the design or its total lack thereof. And fourth, the fact that the design in its useful embodiment was mass produced and merchandized commercially on a nationwide scale. Then Justice Reed added a paragraph at the very end of the majority opinion which I think is worth reading.

I might say in fairness, Mr. Chairman, that Mazer v. Stein did not address the constitutional question. This was not argued in the briefs for reasons that escape me, but it was not. And therefore, this is not a constitutional decision. It is a statutory decision. Yet, in the last paragraph, which I guess would have to be, because of that, considered dictum, this is what Justice Reed has said:

"The economic philosophy behind the clause empowering Congress to grant patents and copyrights in the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in "Science and useful Arts." This following sentence is frequently quoted: "Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered."

It is a little hard to think about the sacrificial days that went into the lamp bases that were involved in the Mazer case, but be that as it may, the point is a more fundamental one.

Now, this was a really revolutionary decision, but it took a while for people who had been headed off in another direction to realize what it

had to offer them. Its reach, the decision in the Mazer case, very clearly went beyond lamp base designs, but did it go so far as to cover all original industrial designs, such as machinery, automobiles, refrigerators, and so forth? The Copyright Office decided after much discussion that for purposes of registration, the following line should be drawn in its regulations which are still in effect, and on page 11 I quote the regulations which are rather extensive, but essentially-and I will read now from page 12-they mean that virtually all original twodimensional designs for useful articles, such as textile fabrics, wallpaper, floor tiles, painted or printed decorations, and so forth, were subject to copyright registration. The same was true of those threedimensional designs that can be conceptually separated and are capable of existing independently of the utilitarian aspects of the article. embodying them, such as a lamp base in the form of a human figure, or even as it is later evolved, very abstract designs, but it still can be identified as something that is designed rather than the shape of the article such other examples are carvings on furniture, costume jewelry, decorator items, and so forth.

The case law on this subject is very very copious, and this first interpretation of the Copyright Office does seem to have been accepted and has not been successfully challenged. During fiscal year 1975, the Patent and Trademark Office issued 3,600 design patents, and the Copyright Office made 9,600 registrations covering designs for useful articles. Although it has substantially expanded the scope of designs subject to copyright registration as "works of art," the Mazer case, as interpreted by the courts and the Copyright Office, leaves unprotected a large body of creative work: Three-dimensional designs of utilitarian articles as such, as distinguished from three-dimensional ornamentation or embellishment incorporated in them. These types of designs are theoretically subject to the design patent protection, but for various practical reasons, they are not. Design patents are not extensively sought to cover them. They are really without effective legal protection.

Mr. KASTENMEIER. Now, do I understand there are presently three classes of works here? One, that for which a design patent would be obtained. The second, that for which a design for useful articles would be protected by copyright. And a third, those protected, practically speaking, by neither.

MS. RINGER. There are three classes of articles, but I would probably divide them a little differently.

Mr. KASTEN MEIER. Are they overlapping?

MS. RINGER. Yes; they are.

Mr. KASTENMEIER. Are there things for which one could get either copyright protection or patent protection? Take your choice!

Ms. RINGER. Not only there are, but I would say that everything we register in the Copyright Office is as a class, subject to design patent protection. It may not be up to the standards of novelty and nonobviousness that the Patent Office applies to all patents. In other words, the standards are much higher in the process because it requires a novelty search. A prior art search is a very slow and expensive

one.

We will not, in the Copyright Office, register the three-dimensional design of a useful article unless something in it can be conceptually identified as a work of art in a very broad sense. The Patent Office will register everything we register and those things too, but only if it meets their standards, and if they are applied for. And the applications have dropped off substantially over the years in the design patent field. In any case, all this is a result of the Mazer case, and the design bill actually started before the Mazer case was decided and was based, in its very earliest origins, on the assumption that there was no copyright protection. So it is perfectly clear, Mr. Chairman, that the situation has changed since then.

But it is our quite strong belief that the design section title of the bill is still needed to cover this additional area of protection which is, in effect, without protection now. And we believe that the approach that has been adopted is valid for some of the material that we are now registering for copyright.

It is entirely conjectural whether anybody who is now getting full copyright protection, which is upwards of 56 years now, would turn to this title if they have clearly established rights under the copyright law now. Probably not. It took them a long time in years to realize the full copyright was going to be sustained by the courts. But I think it has been sufficiently established, and now that it is they would not turn back to design, sui generis design protection.

Nevertheless, I do believe that the overlap that you speak of between copyright and design protection under title II would be quite substantial and that people might find some advantages in going the title II route rather than the copyright route, even in areas that are now registering in the Copyright Office.

I think I had better skip over the legislative history going up to the point in the Senate where title I and title II were conjoined. The design bill, as I summarize on page 14, has been pending in one house or the other ever since its initial introduction in 1957. It has been the subject of hearings three times in the Senate and once in the House. 'On four occasions, it has passed the Senate. On two other occasions, it has been reported favorably by the House and Senate Judiciary Subcommittees and was the subject of a hearing before your subcommittee in December 1963.

I think I will skip now to the discussion of the design part itself. as distinguished from the typeface issue, and come back and deal with the typeface issue separately. I would like to emphasize at this point that the two are closely related.

This is from page 21. As the law now stands, a large area of designs of useful articles is subject to full copyright protection, while the remainder, consisting of a large body of fine three dimensional designs, is virtually without effective protection. The design bill would remedy this injustice and restore a balance to the level of deserved protection in a field involving a high degree of creativity.

The Copyright Office adheres to its position strongly favoring the enactment of title II of the bill. And we agree with the comments in a letter that NASA sent to the committee about 6 weeks ago indicating that there are some problems of terminology in conjoining these

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