us copyright office: ar-1977

8/14/2019 US Copyright Office: ar-1977

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A N N U A L REP.ORT OF THEREGISTER OF COPYRIGHTS

For the fiscal year ending September 30

L I B RA R Y O F C O N G R ES S / W A S H I N G T O N / 1978


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Library of Congress Catalog Card Numb er 10-3 501 7ISSN 0090-2845 Key title: Annual report of the Register of Copyrights

This report is reprinted from theAnnual Report o f the LibrarLn o f Congress

for the fiscal year ending September 30, 1977


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ContentsThe Copyright Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Passage of the Revision Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Revision Movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .arlierHistory 7. . . . . . . . . . . . . . . . . . . . . . . . . . . .ther Co pyright Legislation 8. . . . . . . . . . . . . . . . . . . . . . . . .evision Coordinating Comm ittee 9Rulemaking and Related A ctivities . . . . . . . . . . . . . . . . . . . . . . . . . 10Reorganization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10Automation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1Special Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1Staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2' .Copyright Royalty Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Production and Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12International Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Judicial Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Common Law Copyright. Unfair Competition. and Related Doctrines . . . . . . . . . 14

Publication and Notice of Copyright . . . . . . . . . . . . . . . . . . . . . . . 18Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Subject Matter of Copyright and Scope of Protection . . . . . . . . . . . . . . . . 20Renewal of Copyright and Recordation . . . . . . . . . . . . . . . . . . . . . . 2Infringement and Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Tables:International Copyright Relations of the United States as of September 30. 1977 . . . . . . 28Number of R egistrations by Subject Matter Class. Fiscal Years 1973-77 . . . . . . . . . . 32Number of Articles Deposited. Fiscal Years 1973-77 . . . . . . . . . . . . . . . . . . 32Number of Articles Transferred t o Othe r Departme nts of the Library of Cong& . . . . . 33Gross Cash Receipts. Fees. and Registrations. Fiscal Years 1973-77 . . . . . . . . . . . . 33Summary of Copyright Business . . . . . . . . . . . . . . . . . . . . . . . . . . 34


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Report to the Librarian of Congressby the Register of Copyrights

THE COPYRIGHT

PASSAGE OF THE REVISION BILL

On Tuesday, the nineteenth day of October ofAmerica's Bicentennial year, President Gerald R.Ford signed into law the long-awaited bill for thegeneral revision of the copyright law. With thissignature the United States took a dramatic steptoward a horizon beyo nd the intellectual prop ertytrails worn smooth by copyright practitioners sincethe inception of a federal literary property statutem 1790, the fourteenth year of our independence.The culmination of many years of sustained effortby its proponents, the new statute, known as PublicLaw 94-553, an Act for the General Revision of theCopyright Law (title 17 of the United States Code),represents the fou rth general revision of t ha t legisla-tion and the first such revision since enactment ofthe Act of 190 9 in the closing hours of the last termof President Theodore Roosevelt.The final legislative phase preced ing passage of theconference version of the bill by both the Senateand House of Representatives on September 30,1976, began on February 19, 1976 , when theSenate unanimously passed S. 22 by a vote of 9 7 to0, a tribute to the patience and leadership of thelate Senator John. L. McClellan of Arkansas, chair-man of the Subcomm ittee on P atents, Trademarks,and Copyrights of the Committee on the Judiciary.On August 3, 1976, following twenty-two days ofpublic mark-up sessions, the House Judiciary

OFFICESubcommittee on Courts, Civil Liberties, and theAdministration of Justice favorably reported S. 22by a unanimous vote, likewise a tribute to thechairmanship and unflagging energy of Represent-ative R obert W. Kastenmeier of Wisconsin. The fullCommittee on the Judiciary of the House ofRepresentatives reported favorably on S. 22 onAugust 27, 1976. As so reported, the bill wassubstantially identical with that reported on August3 by the subcommittee as an amendment in thenature of a substitute to S. 22. The careful andcomprehensive work of the House subcommitteewas assisted by the Second Supplementary Reportof the Register of Copyrights on Copyright LowRevision, an extensive summation of legislativehistory with an analysis of the technical issuesembodied in the revision legislation. IIn spite of the press of legislative business in thewaning months of a presidential election year, theHouse of Representatives approved S. 22 onSeptember 22, 1976, by the decisive margin of 316to 7. A week later the conference report, whichreconciled the differences between the Se nateversion of S. 22 as passed on February 19, 1976,and the House version as passed on September 22,was submitted by the committee of conference tothe Congress. The following day, Thursday,September 30, 19 76, bo th the Senate and House ofRepresentatives accepted the conference version ofthe bill. The die was cast. The presidential signature


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REPORT OF THE REGlSTER OF COPYRIGHTS, 1977on October 19, 1976, capped the pyramid inaugur-ating an unprecedented transformation of lawsimplementing the Constitutional mandate empow er-ing the Congrer "to promote the Rogress ofScience and useful Arts, by securing for limitedTimes to Authors, .. he exclusive Right to theirrespective Writings . . . ."The new copyright statute that will become fullyeffective on January 1, 1978, superseding theCopyright Act of 1909, as amended, includes anumber of significant innovations. Thus, instead ofthe present dual system of protecting works underthe common law before publication and under thefederal statute thereafter, the new law establishes adngle unitary sptem of statutory protection for allcopyrfehtable works, whether published or unpub-lished.

The term of copyright protection for workscreated on or after January 1 ,197 8, will be equal tothe life of the author plus an additional fifty yearsafter the author's death. The new term for worksmade for hire and for anonymous and pmudonym-ous works will be seventy-five years Rom publica-tion or one hundred years from creation, whicheveris shorter. This same term is also generallyapplicable to unpublished works already inexistence on January 1, 1978, that are not p r etected by statutory copyright and have not yetentered the public domain.For works already under statutory protection, thenew law retains the present term of copyright oftwenty-eight years from first publication (or fromregistration in some cases), renewable by certainpersons for a second period of protection, butincreases the length of the second period fromtwentycight t o for ty-m en years. Copyrights sub-sisting in their second term at any time betweenDecember 31, 1976, and December 31, 1977,inclusive, are automatically extended to last for atotal term of seventy-flve years from the date theywere originally secured, without the need of furthe rrenewal. However, copyrights in their first term onJanuary 1, 1978, must stffl be renewed during thelast (twenty-eighth) year of the original copyrightterm to receive the full new maximum statutoryduration of seventy-five years.The judicial doctrine of "fair use," one of themost important and well-established limitations onthe exclusive rights of copyright owners, receivesexpress statutory recognition for the first time inthe new law, which provides speciflc standards for

determining whether particular uses fall within thiscategory. In addition to the provisions for fair use,the new law also specifies conditions under whichthe making or distribution of single copies of worksby libraries and archives for noncommercialpurposes will not constitute an infringement ofcopyright.The new law establishes an independent five-member agency in the legislative branch named theCopyright Royalty Tribunal and entrusts this bodywith specific regulatory authority governing theprocedures and responsibilities for dbbursement offunds derived from the use of copyrighted works inca bl e te levidon transmissions, jukebox per-formances, and certain othe r categories where copy-tight royalty rates are fixed by law.The limited compulsory license provisions of thepresent law are extended by the terms of the newact to include the payment of royalties for thesecondary transmission of copyrighted works oncable antenna television (CATV) systems, the per-formance of copyrighted mudc in jukeboxes, andthe noncommercial transmission by public broad-casters of published musical and graphic works.Retained in the new law, with some changes, are theexisting provisions in the premnt law permittingcompulsory licensing for the recording of music.Registration in the Copyright Office under thenew law wffl not be a condition of copyrightprotection but will be a prerequisite to an infringe-ment suit. Subject to certain exceptions, theremedies of statutory damages and attorney's feeswill not be available for inMngsments occurringbefore registration, However, if a work has beenpublished in the United States with notice ofcopyright, copies or phonorecords must bedeposited in the Copyright Offlce for the collectionsof the Library of Congress, not as a condition ofcopyright protection, but rather under provisions ofthe law subjecting the copyright owner to certainpenalties for failure to deposit following writtendemand by the register of copyrights.

The Copyright Act of 1976 embodies essentially thesame provisions as its predecessors, H.R. 4347 andS. 1006, introduced in both Houses on February 4,1965, at the beginning of the 89th Congress, bySenator McClellan, chairman of the Senate Judiciary


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REPORT O F THE REGISTER O F COPYRIGHTS, 1977Subcommittee on Patents, Trademarks, and Copy-rights, and Representative Emanuel Celler of NewYork, chairman of the House Committee on theJudiciary.These bills represented complete revisions of theoriginal draft bills for revision, H.R. 11 947 and S.3008, which had been introduced in th e House andSenate, respectively, on July 20, 1964, during thesecond session of the 88th Congress. Both earlierversions had taken form as an outgrowth of effortsbetween 1961 and 1964 to pr0duce.a consensusamong participating representatives of the manydiverse interests affected by the copyright law. Ofconsiderable importance in arriving at these resultshad been a Panel of Consultants on GeneralRevision, formed under the auspices of the Copy-right Office. The 196 5 bills represented a comple teredraft of their 1964 counterparts, based upon areview and analysis of the many written and oralcomments made upon the latter. The publication inMay 1965 of the Supplementary Report of theRegister of Copyrights on the General Revision ofthe US. Copyright Law: 1965 Revhion Bill,coincided with the commencement of congressional

Representative EmanuelCeaer o f New YorS whoin 1964, as chairman ofthe full Judicicrry Commi t-tee o f the House o f Representatives, introduced inthe House the fin t bill inthe current movement forgeneral revision of thecopyr ight law. He was astrong proponent of copy-right legislation through-ou t his long congressionalcareer, which extende dfrom 1923 to 1 973.

Representative Robert W.Kastenmeier o f W isconsin,chmmrman f the sub comm it-tee o f the House JudicicrryComm ittee that held ex-tensive hearings on thecopyright revision bill,beginning in 1964. Asfloor manager of the bill,he led it to final posslgein the House o f Represent-atives.

hearings in the House of Representatives beforeSubcommittee Number 3 of the Committee on theJudiciary, under the chairmanship of Mr.Kastenmeier an d Mr. Celler, respectively.Between May 26 and September 2, 1965, a totalof twenty-two days of public hearings were heldwhich yielded of 1,930 pages of printed te xtincluding 150 written statemen ts in addition to th eoral transcript, the testimony of 16 3 witnessesrepresenting the widest spectrum of public andprivate interests in the proposed legislation. Sharpconflicts on some of the major issues presented bythe bill did not prevent a flood of compliments ,abo ut the remarkable thorou ghness of th e legislativepreparation and the intelligent, germane, anddispassionate statements o f the many witnesses. OnOctober 12, 1 966 , following fifty-one executivesessions of the House Judiciary Subcommittee,C h ai r m a n Celler's full Judiciary Committeefavorably re ported the b ill. as amended in the279-page Report 2237 (89th Congress, 2d Session),an unusually valuable addition, at that time, to thelegislative history of the general revision bill.In the meantime, hearings initiated in August

The h te Senator John L.McClellan o f Arkansas,chairman o f the SenateJudiciary's Subcommitteeon Patents, i%&rnmks,and Copyrights, htrod ucedthe fast copyright revi-sion brll in the Senatein 1964 and piloted thebrll t o i ~ laswge in19 76.

Arthur Fisher, who +cameregister o f copyrights in1951, to ok a leading pnrtin the creation o f theUniversal Copyright Cbn-vention. He initiated themo veme nt for generalrevision o f the copyrightlaw in 1955 and directedit until his death in 1960.


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REPORT OF THE REGISTER OF COPYRIGHTS, 1977i96 5, before the Senate Judiciary Subcom mittee onS. 1006 temporarily resumed on August 2, 1966,under the acting chairmanship of Senator QuentinN. Burdick of North D akota, on the specificquestion of community antenna television systems.Reintroduced in both Houses at the outset of the90th C ongress as H.R. 251'2 and S. 597 , the bill wasonce again, on March 8,' 1967, the subject ofanother Report by the House Judiciary Committee,Number 83 (90th Congress, 1st Session) this timewithout further amendment but with dissentingviews. On April 11, 1967, by a vote of 379 t o 29,the measure was passed by the House of Representa-tives with several important amendments. Althoughthe structure and content of the bill had remainedsubstantially intact, drastic revisions in the compul-sory licensing provisions relating to jukebox per-formances had been made, and the exemptions forins t ruct ional te lev is ion were cons iderablybroadened. Moreover, the provisions dealing withcommunity antenna transmission were droppedentirely, theoretically exposing CATV systems tofull liability for copyright infririgment under thebill.On April 28, 1967, the Senate Judiciary Sub-

m e lote A bmhomL. George0. Cay, eputyffiminstefn,who wos regis- register o f copyrightster of copyrightafrom from 1961 to 1 971 ond1960 unt171971,guve new register from 1971 to 1973,impetus to the movement figured prominently in theforgeneral revision. The 'Copyright Office'sactivitiesbill f i ~ l ly ~ c t edn leuding to geneml revision.1976 is, in its prindrnlfeatures, the mapsurempnred under hisdirection

comm ittee, un der th e joint chairmanship ofSenators McClellan and Burdick, completed tendays of hearings on S. 597 begun in hid- archthat produ ced 1,383 pages of printed oral transcriptand written statements. Although these hearings didnot consider the problem of C A TV ,which had beenthe focus of testimony in August of the previousyear, other controversial issues emerged, of whichprobably the most important concerned the use ofcopyrighted works in automated informationstorage and retrieval systems. The absence of anyready legislative solution to these questions made itclear that the 90 th Congress would not see com-pleted action o n copyright revision.The impact of these emerging controversiesslowed the momentum acquired by the revisionprogram after the decisively favorable vote of theHouse of Representatives in passing H.R. 2512. Themidyear landmark Supreme Court decision inFortnightly Corp. v. united Artists Television,Inc,392 U.S. 39 0 (1968), gave marked impetus t o thesame tendency since the affected industries opposedany further legislative action until they had hadtime enough to absorb and evaluate the r&ults.The dwindling momentum also aroused concern

Abe A. Coldmm, who nuschief of the revision rpseorch progmtn, loter gen-erol counsel of the COPYright Office, ond then in19 73 octing register ofcopyrights, p-d onimportont role m therevision effort.

Borbom Ringer, register ofcopyrights since 1 973, oneof the principal architectsof the revision bill, receivedthe Pksiden sA word forDistinguished Fedeml Civilionservice in recognition ofher extmOrdinory mhieve-ment in the movement torevise the copyrigtt low.


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REPORT OF THE REGISTER OF COPYRIGHTS, 1977about the status of copyrights subsisting in theirsecond term bu t due t o expire before December 3 1,1967. Anticipating enactment of a general revisionbill substantially lengthening the duration of copy-rights already in effect, the Congress had ad opted in196 2, and again in 1965, two m easures extendingthe term of renewal copyrights otherwise due toexpire. In the face of the protracted slowdown inthe revision movement, Congress passed the thirdextension bill, w hich became Public Law 90-141 onNovember 16, 1967. Before enactm ent of the newcopyright law was finally achieved in 1976, a totalof nine interim extension bills had been passed,automatically extending the du ration of copyrightssubsisting in their second term t o seventy-five yearsfrom the d ate the y were originally secured.In the first month of the 91st Congress, thechairman of the Senate Subcommittee on Patents,Trademarks, and Copyrights introduced a newrevision bill, S. 543, which was identical with itspredecessor, S. 597, except for technical amend-ments and the addition of a provision for establish-ment of a National Commission on New Technolo-gical Uses of Copyrighted Works. On December 10,1969, Senator McClellan's subcommittee favorablyreported S. 543, with an amendment in the natureof a substitute, but the cable television issueforeclosed further action in the full JudiciaryCommittee. Early in the succeeding 92d Congress,Senator McClellan introduced S. 644, which, exceptfor minor amendments, was identical with therevision bill reported by the subcommittee in late1969. The 92d Congress saw no further action ongeneral revision legislation while p ropon ents awaitedformulation and adoption of new cable televisionrules by the Federal Communications Commission.The d elay o f revision legislation was also prevent-ing the extension of federal copyright protection t osound recordings. With the unauthorized duplica-tion of sound recordings becoming widespread, theneed for special remedial action became apparent.Accordingly, Senator McClellan introduced S. 646at the outset ,of the 92d Congress to amend theexisting copyright statute to provide for the crea-tion of a limited copyright in sound recordings.Identical with S. 4592, which Mr. McClellan hadintroduced on December 18, 1970, this bill passedthe Senate on April 29, 1971 Following hearing, acompanion measure, H. R 6927, passed the Houseof Representatives with amendments in earlyOctober and was enacted shortly thereafter as

Public Law 92-14 0. By the terms o f the act, whoseprovisions were taken in substance from the generalrevision bill, statutory copyright protection wasmade available to sound recordings first fmed on orafter Fe bruary 15, 1 972, if the sound recording waspublished with the prescribed notice of copyright.On March 2 6, 197 3, Senator McClellan introdu cedS. 1361 for the g eneral revision of the copyright law.This bill was identical with its predecessor, S. 644,except for technical amendments. On May 29,197 3,Representative Bertram L. Podell of New Yorkintr0ducedH.R. 8186 , an identical counterpart to theSenate bill. On July 31 and August 1, 1973, theSenate S ubcomm ittee on Patents, Trademarks, andCopyrights held supplementary hearings on issuesaffected by current developments relating t o libraryphotocopying, general educational exemptions, thecable television royalty schedule, carriage of sportingevents by cable television, and an exemption forrecording religious music for broadcasts.Shortly after the Supreme Court's decision ofMarch 4, 1974, in Teleprompter v. Columbia Braad-casting System , Inc., 4 15 U.S. 39 4, which extendedcopyright exemption to the importation of distantsignal programming by cable antenna televisionsystems, the Senate Judiciary Subcommitteeresumed active consideration of the McClellan billand on April 9, 19 74, reported S. 1361 with someamendments to the full Judiciary Committee, whichin turn made its favorable report on July 3, 1974,together with a 228-page printed report, Number93-983.

The most controversial issues in the reported billinvolved establishment of a royalty for the publicperformance of so und recordings and the carriage ofbroadcasts of sporting events on cable television.Principally because these issues were deemed tohold implications for communications policy, thecopyright bill was then referred t o the SenateCommerce Committee at its own request. On July29 that committee also reported the bill withfurther amendmen ts and a ninety-two page report,Number 93-1035.Finally on S eptemb er 9, 1974, by a vote of 70 to1, the measure passed the Senate with additionalamendm ents. The "performance royalty" for sou ndrecordings and the "sports blackout" provisionswere deleted before passage of the bill, whose basicpurpose and structure remained unchanged.Although it was apparent that insufficient timeremained for House action in the second session of/


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REPORT O F THE REGISTER OF COPYRIGHTS, 1977Title I1 of the bill consisted of what had originallybeen separate comprehensive legislation for the pro-tection of ornamental designs of useful articles,

based largely on co pyright principles.Originally introduced in 1957, the design protec-tion measure received active consideration in bothHouses during the succeeding decade. As separatelegislation, it passed the Senate on three occasions-in 196 2, 1963, and 1966. Reintroduced in the 90thand again in the 9 1st Congress, the Senate JudiciarySubcommittee on Patents, Trademarks, and Copy-rights added it to the general copyright revision billin late 1969, reporting it as Title 111 of S. 543.Twice thereafter, the design legislation passed theSena te, fir st as T itle 111 of S. 1361 in the 93 dCongress and then finally as Title I1 of S. 22 in the94 th C ongress. Ultimately , the design legislation wasdeleted before congressional passage of the finalconference version of the revision bill lest theunresolved issues it raised cause further delay inacceptance of basic copyright reform.On No vember 20, 1975, while hearings in th eHouse of Representatives on H.R. 2 22 3 cont inue d,the Senate Judiciary Co mmittee favorably reportedS. 22, accompanied by a 16 Bpage printed rep ortwith additional views, Report 94473. As reportedabove, soon after the beginning of the secondsession of the 94 th Congress, on February 1 9, 1976,the Senate passed the bill unanimously by a vote of97 to 0. Essentially the same as S. 1361, which th eSenate had approved in 1 974, the 1976 enactmentembodied a new provision for the compulsorylicensing by noncommercial educational broadcastsof certain works, at royalty fees established by theCopyright Royalty Tribunal. Also included was anamendment designed to ease the burden of copy-right liab ility for smallerC A T V systems with annualrevenues under $160,000. Except for a number ofadded provisions, including those relating to cableantenna television, the 1976 Senate version of therevision bill corresponded in its general featureswith the measure approved by the House ofRepresentatives in 1967.

EARWER HISTORY

The new statute is the fourth general revision of theU.S. copyright law. Although there have beennumerous minor amendments since the enactmentof the first federal copyright statute on May 31,

1790, the only earlier general revisions were thoseof 1831 ,1870, and 1909.The movement for general revision of the copy-right law th at culminated in the 1976 enactment ofPublic Law 94 -55 3 owes its mode rn'origin to theLegislative Appropriations Act of 1955, whichallocated funds for a comprehensive program ofresearch and study of copyright law revision by theCopyright Office of the Library of Congress.Between 195 5 and 1 963 , a total of thirty-fivestudies prepared under the supervision of theCopyright Office examined the past, present, andfuture prospects of the existing law with a view toconsidering a general reiision of the copyrightstatute. The first thirty-four of these studies werepublished as committee prints by the Senate Com-mittee on the Judiciary's Subcommittee on Patents,Trademarks, and Copyright (86th Congress, SecondSession).Revival of interest at this time in copyrightrevision was undoubtedly.stimulated in part by thesuccessful efforts to procure U.S. adherence to thetext of the Universal Copyright Convention adoptedat Geneva, Switzerland, on Sepiember 6, 1952. Oneof the original thirty-six signatories, the UnitedStates was also numbered among the first twelvecountries whose adherence, under the terms of theconvention, ultimately brought it into force onSeptember 16, 1955. On the same date the federalcopyright law was modified to comply with theconvention in accordance with the provisions ofPublic Law 743 (68 Stat. 1030) as approved byPresident Eisenhower on August 31, 1954. By itsratification, the United States had become for thefirst time a participant in a system of internationalcopyright protection destined to achieve virtuallyworldwide adoption. It was the most importantdevelopment of its kind since the Chace Act of18 91 first permitted establishment of copyrightrelations between the United States and foreigncountries.The series of revision studies sponsored by theSenate subcommittee provided the research andanalytical basis for the 1961 Re por t of the Registerof Copytigltts on the General Revision of the U.S.Copyright Law. This report, which containeddetailed recommendations for an omnibus statute,in turn provided a focus for numerous meetings anddiscussions with a Panel.of Consultants on GeneralRevision, held during the following three yearsunder the auspices of the Copyright Office. The


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8 REPORT OF THE REGISTER OF'COPYRIGHTS, 1977resulting suggestions and recommendations, repre-senting the full spectrum of interests affected by thecopyright law, enabled the Copyright Office topresent a preliminary draft of provisions for ageneral revision bill in 196 3, leading t o discussionsand comments on that draft. The outcome of all ofthis sustained effort was the copyright law revisionbill of 1964 , introduced in the second sessionof the 88 th Congress on July 20, 1964 , as H.R.11947 in the House of Representatives and as S.3008 in the Senate. Although no legislative actionwas taken on these measures, the Copyright Officeundertook a complete redraft of the bill in the lightof the comments received in the wake of itsintroduction. On February 4,19 65, at the outset ofthe 89th Congress, the revision movement estab-lished itself firmly with the introduction in bothHouses of the new and completely revised billknown as H.R. 434 7 in the House and S. 100 6 inthe Senate, which would serve as a basis forextensive hearings soon t o begin.None of th e earlier efforts t o effect any broadrevision of the Copyright Act of 1909 had benefitedfrom the sustained and thorough kind of prepara-tion that augured so well for the revision movementthat in 1965 stood at the threshold of a strenuousbut ultimately triumphant decade of progress.Forty-five years earlier, in the afterma th of the FirstWorld War, there were stirrings among publishingand other cqpyright interests generated by thegrowing market for American works abroad whichattracted attention to shortcomings in our intema-tional copyright relations and prompted a desire foradherence to the multilateral treaty arrangementknown as the Berne Convention, to which mostEuropean countries as well as others of importancesubscribed.Adherence to the Berne Convention would haverequired many fundamental changes in the U.S.copyright law, a fact that prompted proponents towiden their objectives to cover other issues as well.The first of these broad revision programs waspresented to the Congress in 1924. Although nolegislative action was taken on this measure, it didgive rise to further discussions under congressionalauspices that resulted in the emergence of revisedproposals, one of which, known as the Vestal bill,was passed b y the House of Representatives in early1931 bu t failed t o come. o a vote in the Senate. Thenear enactment of the Vestal bill in the 71stCongress marked the furthest reach of the efforts t o

conform our law to the principles of the BerneConvention.Nevertheless, the movement for revision con-tinued in the same general direction until deflectedby the reappearance in the 73d Congress of amovement to retum to the narrower objective ofthe revision efforts initiated a decade earlier bylimiting proposed changes only to those necessaryfor adherence to the convention. Meanwhile, the1928 Rome Revision of the Berne Conventionadded features considered unacceptable by somesegments of the American copyright communityand no longer permitted adherence with reserva-tions as previously allowed under the 1908 BerlinRevision of th e Berne Convention.The legislative effort continued but seemed touncover new areas of controversy rather than t oproduce a consensus. In 1938 the Committee forthe Study of Copyright, also called the ShotweUCommittee (after its chairman, Rof. James T.Shotwell), arranged a series of conferences with avariety of interested copyright groups. A draft billfor complete revision of the law was prepared andintroduced in the Senate of the 76th Congress inJanuary 1940. However, no hearings were held onthe so-called Shotw ell bill, and no furth er legislativeaction was taken o n it. After 1940, attempts t o alterour law for membership in the Beme Union w e nabandoned. Following the Second World War, theUnited States participated actively in the development of the new Universal Copyright Convention,which was essentially consistent with the existingU.S. copyrig ht law. The movemen t for generalcopyright revision lay dormant during the inter-vening years unt il its revival in 1955, when the newworldwidaconv ention came into force.m H E R COPYRIGHT LEGISLATIONThe copyright law was amended by the LegislativeBranch App ropria tion A ct, 1978, Public Law 95-94(91 Stat. 653, 676, 682), which was enacted onAugust 5, 1977. Title I1 of the act appropriates$7,945,500 for necessary expenses of the CopyrightOffice but provides that not to exceed $3,000,000of the funds credited to this appropriation duringfiscal year 19 78 under section 2 03 of ti tle 17, U.S.Code (as in effect prior to January 1, 1978), andunder section 708(c) of such title (as in effect on orafter January 1, 1978), shall also be available for ,-


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REPORT OF THE REGISTER OF COPYRIGHTS. 1977obligation during that fiscal year. Title N of the actspecifies that, effective October 1, 1977, section203 of title 17, U.S. Code , is amended by adding atthe end thereof the following statement: "Allmoneys deposited with the Secretary of theTreasury under this section shall be credited to theappropriation for necessary expenses of theCopy right Office." Title N lso specifies that:Effective January 1, 1978, the first sentence of section708(c) of title 17, United States Code, is amended to readas follows: "All fees received under this section shall bedeposited by the Register of Copyrights in the Treasury ofthe United States and shall be credited to the appropriationfor necessary expenses of the Copyright Office."

The net effect of this appropriation measure is toallow a reduction not to exceed $3,000,000 in the1978 budge t, offset by an equal amount collected inCopyright Office fees and credited to the appropria-tion account for the Copyright Office. Thecombined total of budgetary appropriation and feereceipts amounts to $10,945,500, an increase of$1,176,200 over appro priations for 1977, includingprovision for seventy new positions requested toimplement the revised copyright law that becomesfully effective Januar y 1, 197 8.

REVISION COORDINATING CO MM llTEETo prepare for the implementation of those provi-sions of the new law that are the responsibility ofthe Copyright Office, the register of copyrightsappointed a Revision Coordinating Committee,made up of Copyright Office staff members. Thecommittee consists of the register, Barbara Ringer,as chairperson, and two other members, Dorothy P.Keziah and Mary F. Lyle. A number of sub-committees were established under the committee,and various task groups were set up within thesubcommittees. Staff members serve on the sub-committees along with their regular duties. The\committee coordinates the revision efforts through-out the office, including such activities in theindividual divisions afld by the general counsel ofthe Copy right Office and his staff.Products of the committee include policydecisions, notices of proposed rulemaking, finalregulations, and other documents. Among theactivities being conducted are:

o Develbprnent of a classification system forregistrations under the new law.o Design of new application forms.o Preparation of new rules for the cataloging ofcopyright registrations and recordations.o Stu dy of storage and presemation problems raisedby the new act.o Preparations necessary to bring the Office underthe Administrative Procedure Act, as provided bythe new copyright law.o Formulation of new operational manuals,information circulars, and similar materials.

Moreover, the Revision Coordinating Committeehas concerned itself with a set of questions raised bythe new law, regarding the relationship between theCopyright Office and the other parts of the Libraryof Congress. These problems arise from the newlegal prov isions on:0 Mandatory deposit of copies and phonorecords,including the concept of "best edition" and therelationship between de posit a nd registration.o Establishment of procedures by which certaincopyright owners can, at the time of registration,grant to the Library of Congress a license toreproduce the work for the use of the blind andphysically handicapped.

Establishment in the Library of Congress of theAmerican Television and Radio Archives, whichmay consist in part o f copyright deposits.The importance of coordination with otherdepartments of the Library was also given renewedemphasis by efforts t o make copyright cataloging

more compatible with Library of Congress pro-cedures so as to facilitate increased use of copy rightcatalogs.Of special importance is the training being done toinform both the Copyright Office staff and thepublic on the provisions of the new law. Courseshave been offered to virtually all the employees ofthe Copyright Office, and considerable efforts have


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REPORT O F THE REGISTER OF COPYRIGHTS, 1977been made t o su pply, on request, speakers from theCopyright Office t o meetings of authors, publishers,lawyers, librarians, educators, and others concernedwith the new law. Kits of printed matter on the newlaw have bee n sent out in great quantities. Those onthe Copyright Office mailing list, now numberingalmost 10,000, receive copies of all announcementsand printed matter of general interest issued by theoffice.

RULEMAKING AND RELATED ACl'lVITIESThe register of copyrights is required under the newlaw t o establish reg ulations dealing with a variety ofmatten. Moreover, the new act calls for the registerto consult with the representatives of certain inter-ests on specified subjects and t o subm it a report t oCongress setting forth recommendations as towhether the copyright law should be amended inthose areas.In the exercise of these functions the register ofcopyrights has issued, through the FederalRegister,a number of notices of proposed rulemaking whichinvite comments from the public, has held severalhearings, and has issued notices of adoption ofregulations on certain subjects.The subjects for which regulations have beenadopted include notices of identity and signalca rr ia s com plement of cable systems under section1 1 (d) of the new law, the recordation of agree-ments between copyright owners and public broad-casting entities under section 1 18, and notices oftermination of transfers an d licenses covering theextended renewal term under section 304(c). InJuly 1977, hearings were held at the Co pyright O fficeand in Beverly Hills, California, to elicit commentson wheather or not the law should be amended toestablish a performing right for copyrighted soundrecordings, a matter on which the register isrequired, under section 114(d) of the new act, tomake recommendations to congress on ~a n u ar y ,1978.

REORGANIZATIONIn preparation for implementation of the new lawon January 1, 197 8, the organization of the entireCopyright Office has been reviewed and a numberof substantial changes have been proposed t o enable

the office to meet its added responsibilities in aneffective manner. As there has been no majorreorganization in the Copyright Office since the1940s, when the office numbered some twohundred employees, it becomes even more urgentthat basic restructuring take place as the officeapproaches a staff level of six hundred.Organizational changes currently under wayinclude elimination of the position of deputyregister. Instead there will be t w o assistant registers.A new tier of management will thus be created tohandl e t he Copyr i gh t Of f i ce ' s i nc rea sedresponsibilities.The assistent register for registiation will overseethe examining process and will also be responsiblefor coordinating certain activities performed in theworkflow pro cess, such as the in-process con trol andacquisition functions. The assistant register for

automation and records will direct the catalogingfunctions, the management of official records, thenew licensing activities, and the information andreference functions, as well as the activities of thePlanning and Technical Office.Tw o new divisions have also been created , and al lof the other four divisions in the Copyrigh t Officeare being restructured. The expanded emphasis onrecords called for in the new law has resulted in thecreation of a Records Management Division, whichwill plan and organize these record-keeping andarchival functions. In so doing, this division willincorporate many of the activities previouslyhandled by the Service Division and by the Micro.film Project in the Reference Division. The newdivision wi l l have more than fifty employees andwill be divided into a Preservation Section, aRecords Storage Section, and a Card CatalogSection.The other new adm inistrative un it, the LicensingDivision, has been created to handle the newlaw's provisions for licensing of jukeboxes and forreceiving and recording do cumen ts relating to cabletelevision. In addition to receiving payments fromjukebox operators and cable television licensees, thenew division will also handle documents related toother licensing provisions. The division is comp osedof an Examining and Processing Sectbn and anAccoun ting and Record s Section.Plans have been completed for a fundamentalreorganization of the Cataloging Division. Fivesections, conforming to the new categories ofmaterial o utlined in the legislation, will be created


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REPORT OF THE REGISTER OF COPYRIGHTS. 1977from the present three, and a supervisory structurewill be in stituted to allow for smooth expansion tomeet the increased workload expected in the yearsto come. The restructured division will includeUterary, Serials, Performing Arts, Audioviaual, andVisual Arts Sections.To bring its structure more nearly in line with thenew registration classifications, the ExaminingDiviaion is being reorganized into Literary,Performing Arts, Visual Arts, and Renewals andDocuments Sections.The Service Division haa absorbed the ComplianceSection from the Reference Division, and some ofthe record-keeping functions of the SeNice Divisionare being transferred to the Recorda ManagemantDivision. The compliance function is dgniflcantlyexpanded by the deposit provisions of the new lawand, aince mglstration is to be largely voluntary, willbe oriented primarily toward the acquisitionsrequirements of other departments of the Library ofCongress. The name of the divirion is being changedto the Acquisitions and Processing Division, and theCompliance Section will become the Deposit andAcquidtione Section. There have also been someminor organizational changes in the MaterialsControl Section: a Materials Expediting Unit hasbeen separately designated, and a team structure hasbeen adopted in the Mail Processing Unit to copeM th the increasing volume of work.The name of the Refereniea ivision has beenchanged to Information and Reference Division.Passage of the new copyrigh t law has greatlyincreased the need for highly trained informationspedahts who have the depth of knowledge nec-essary to explain the various facets of the old andnew statutes. To meet this need and to centralizethe printing and publications activities of the office,the Information and Publications Section in thisdivision has been reorganized into three separateunits: the Public Information Office, the Publica-tions Unit, a nd a Clerical Support Unit.These reorganization measures should peatlyfacilitate effective implementation of the new law.Plans call for their review in a few years, however,after the Copyright Office has had actual experiencein dealing with various provisions of the newlegislation and associated workload .AUTOMATION

Significant progress was made during the year in thedevelopment and implementation of an automated

in-process and accounting system. It is planned thatthis system, called the Copyright Office In-processSystem (COINS), which was developed under thedirection of the Copyright Office Planning andTechnical Office, wil l eventually be used to recordall mate rial received in theCopyright Offlce relatingto a fee service, track its path through the Offlce,provide an on-line search capability by the use ofterminals, generate accounting reports andproduction statistics, and automatically call atten-tion t o problem cases held without action a t speciflcwork stations.It has been decided to implement C OINS inphams, using a pair of dedicated minicomputers,and a three to fie-year phased implementationplan has been prepared. The deposit accountfunction was selected for automation as the firstp W , since it ia fairly independent and is onlydightly affected by the new copyright law.The minicomputers wlected for thfs operationhave arrived in the Copyright Office, and theDopodt Account Subsystem is operational fortesting. Training 'of staff, begun off-site, wascompleted in 'the new computer room in theCopyright Office. Four cathode ray tube terminalshave been installed, along with two printen for theproduction of hard copy reports. The terminals arehard wired directly to the computer, thus elim-inating the need for telecomm unications hardwareand software. Added reliability remlts from the useof a dual computer system in which a developmentltest computer also serves as backup for thededicated production machine.Actual operation of COINS in parallel with themanual system i( planned for early October 1977, aaoriginally scheduled. This system represents theUbrary's fl nt e ntry into dedicated minicomputersystems and distributed processing. It is believedthat the system wffl be cost effective, reliable, andresponsive t o our needs.SPECIALAWARDS

On January 12, 1977, Barbara Ringer, the registerof copyrights , was presented the President's Awardfor Distinguished Federal Civilian Service in 8ceremony at the White House. This award, thehighest honor for extraordinary achievement in thefederal career service, cited the leading part takenby her in the movement to revise the copyright lawand pointed out that her "energy, ability, and


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12 REPORT O F THE REGISTER OF COPYRIGHTS. 1977concern for the property rights of those who createliterature, the arts, and science have ensuredcontinuation of that creativity, thus enhancing lifefor all people."Ms. Ringer had alre ady received from the Librar-ian of Congress, shortly after the revision bill wascleared for passage, the Distinguished ServiceAward, the highest award offered by the Library, inrecognition of her contribution to the quest formodern copyright legislation.

There were several key management appointmentsduring the fmal year. Richard E. Glasgow, formerchief of the Examining Division, was appointedassistant general counsel of the Copyright Office.Anthony P. Harrison, former head of the BookSection in the Examining Division, was named chiefof that division. Susan B. Ararnayo, former educa-tional liaison officer in the Office of the AssistantLibrarian of Congress for Public Education, wasappointed chief of the newly formed LicensingDivision. And Waldo H. Moore, former chief of theReference Division, was named assistant register ofcopyrigh ts for registration.CCRYRIGHT ROYALTY TRIBUN AL

On September 26, 1977, .President Carter an-nounced the nomination,'puisuant to the provisionsof the new copyright law, of the commissioners ofthe Copyright Royalty Tribunal. They are, in theorder of seniority designated by the President:Thomas C. Brennan, Douglas Coulter, Mary LouBurg, Clarence L. Jam es, Jr., and Frances G arcia.

PRODUCTION AND SERVICES

The volume of copyright activity increased invirtually all areas during the fiscal year. Th e num berof registrations grew by 10 percent to a record totalof 452,702; this figure is 31 percent above the levelattained only five years ago. R enewals increased by12 percent to 30,953 and accounted for 7 percentof total registrations. Gross receipts totaled some$2,946,500, a 10-percent increase overfiscal 1976.

Fees earned for c opyright services during the fiscalyear amounted to almost $ 2 8 million. A total of173,892 separate remittances were scheduled, andsome 2,460 others were withheld from deposit forvarious reasons and returned to the remitter.Of the 504,592 applications for registration anddocuments for recordation handled in theExamining Division, 84 percent were acted onwithout correspondence. Rejections amounted to 2percent, while the remaining 14 percent requiredcorrespondence which led to favorable action.The most substantial increases occurred in thearea of inform ation services, reflecting the needs ofthe public for information and guidance concerningthe new copyright law. Replies to written inquiriesseeking general information numbered 47,235, anincrease of almost 25 percent over fiscal 1976.Approximately the same percentage of increaseoccurred in the n um ber of incoming telephone callsseeking information about copyright, the total being66,000. The number of visitors to the PublicInformation Office was 5,526, a slight decrease.Owing largely to the upsurge in requests forapplication forms and information and to numerousrevision-related mailings originated by the C opyrightOffice, the volum e of incom ing and outgoing mailprocessed by the Service Division increased by 26percent to a record 1,278,420 pieces. Referencesearches conducted by the Copyright Office stafffor members of the public totaled 163,810 titles, anincrease of 30 pe rcent.

Copyright deposits continued to be an importantsource of acquisitions for the collections of thelibrary of Congress. Of the 712,527 articlesdeposited during fiscal 1977 (up 10 percent from thepfevious year), 418,245 were transferred to otherdepartments of the Library. The transferreddeposits consisted primarily of books and pamp hlets(35 percent), periodicals (52 percent), and musicalcompositions (6 percent). The number of depositsreceived by the Copyright Office increased in allcopyright classes except reproductions of works ofart, which declined slightly.Cataloging production kept pace with theincreased workload of other areas of the CopyrightOffice. Copyright . cataloging data provided toprivate subscribers increased by 28 percent to447,785 cards and 51 computer tapes. The Copy-right Card Catalog maintained in the CopyrightOffice grew by 1,465,420 cards during this fscalyear.


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REPORT OF THE REGISTER OF COPYRIGHTS, 1977INTERNATIONAL DEVELOPMENTSA Recommendation on the Legal Protection ofTranslators and T ranslations and the P ractical Meansto Improve the Status of Translators was adoptedby the General Conference of the United NationsEducational, Scientific, and Cultural Organization(Unesco) at Nairobi in November 1976. Therecommendation sets forth the basic legal principlethat translators, in respect of their translations,should be accorded the same protection as authorsunder the provisions of the international copyrightconventions and under national laws, withoutprejudice to the rights of the authors of th e originalworks translated. The application in practice of thelegal protection afforded translators, the social andeconomic situation of translators, and their trainingand working conditions are also covered by therecommendation. In accordance with the UnescoCons titution, the U.S. government is to submit areport to the Unesco General Conference in 1978on steps taken to bring this instrument to theattention o f interested parties.A Second Committee of Government Expertson the Double Taxation of Copyright RoyaltiesRemitted from One Country to Another wasconvened jointly by the directors general of Unescoand the World Intellectual Property Organization( w I P O ) at Paris from December 8 to 16,1 976 . TheUnited States was represented at the committeemeeting by Marcia Field (delegate), Department ofthe Treasury; Steven Pruett (alternate delegate),Department of State; and Patrice Lyons (adviser),Copyright Office. The committee reviewed thepreliminary draft text of a multilateral conventionon this subject prepared by its secretariat and alsoconsidered, at the suggestion of the U.S. delega tion,the possibility of working out a model bilateralagreement designed to obviate such double taxation.At the close of its work, the committee adopted aresolution noting that the solution of the problemsin question may be found in the adoption of amultilateral instrument restricted to generalprinciples and accompanied for its implementationby a model bilateral agreement, and it recom-mended that the secretariats of Unesco and w I P 0prepare such instruments together with a com-mentary. A Third Committee of GovernmentalExperts is scheduled t o meet in July 1978 to givefinal consideration t o these texts.

13At their meetings in December 1975, the Inter-governmental Copyright Committee and theExecutive Committee of the Berne Union, afterdiscussing the study prepared by Prof. Franca

Klaver entitle d "The Legal Problems of Video -casse ttes and Audiovisual Discs," had decided tha ttheir secretariats should invite states party to theBerne Con vention and Universal Copyright Conven-tion, as well as interested international organiza-tions, to comment on the Klaver study. TheCopy right Office prepared a report on U.S. copy-right legislation in this area that was submitted toUnesco in early 1977. T he committees also decidedthat a working group of specialists invited by th edirectors general of Unesco and WIPO should meetin early 1977 to analyze the legal problems arisingfrom the use of videocassettes and audiovisual discs.A working group on this subject met at Genevafrom F ebruar y 21 t o 25, 1977. Robert D. Hadl, alawyer in private practice in Washington, D.C., wasinvited in a personal capa city t o participate in thisgroup. After examining t he various issues raised, theworking group concluded that the internationalcopyright conventions were adequate w ith regard tothis new use of protected works but that thenational legislations should be amended to dealmore specifically with this problem .Although the United States is not a party to theBerne Convention on the Protection of Literary andArtistic Works, it was invited to become a memberof the W I P o Permanent Committee for Development C ooperation Related to Copyright andNeighboring Rights. The Copyright Office wasconsulted in the preparation of the U.S. positionsfor the permanent committee's first session, held atGeneva from March 17 t o 21, 1977. The UnitedStates was represented at the meeting by H m e y J.Winter and Edward J. Chesky of the Department ofState.The fourth session of the WIPO Advisory Groupof Non-Government Experts on the Protection ofComputer Programs was convened by the directorgeneral of WIPO at Geneva from June 1 to 3, 1977.Representing the United States as observers wereWaldo H. Moore, assistant register of copyrights forregistration; Arthur J. Levine, executive director ofthe National Commission on New TechnologicalUses of Copyrighted Works (CONTU); and Prof.Arthur R Miller, a C O N T U commissioner. The mainwork of the fourth session was the adjustment and


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REPORT OF THE REGISTER OF COPYRIGHTS, 1977refinement of the language of the draft model lawprepared by the WIPO International Bureau on thebasis of substantive decisions taken by the thirdsession of the committee.The United States was represented at anothermeeting that dealt with computer-related problems.Michael S. Keplinger, as$istant execu tive directorand senior attorney of CONTU, attended theConference on Transborder Data Flows and theProtection of Privacy, which met at Vienna,September 20 to 23, 1977, under the auspices ofthe Organization for Economic Cooperation andDevelopment.

I The register of copyrights, Barbara Ringer, waselected to chair a Working Group on the Problemsin the Field of Copyright and So-called NeighboringRights Raised by the Distribution of TelevisionProgrammes by Cable, held at Paris from June 13 to17, 1977. The working group was composed ofspecialists invited in a private capacity by thedirectors general of Unesco and WIPO. Thedocumentation available to the working groupconsisted of comments on the problems involved,which had been received from states party to theUniversal CopLright Convention or the BerneConvention and from international nongovern-mental organizations, together with an analysis ofthe comments prepared by the secretariats ofUnesco and WIPO. The working group examinedthree distinct situations: the distribution by cable ofthe cable distributor's own programs, the distribu-tion by cable of broadcdt programs retransmittedby the original broadcasting organization, and thedistribution by cable of broadcast program s by anorganization other than the original broadcastingorganization. The workirlg group also considered .possible methods of regulation as well as theinterrelationships between radio communicationsregulations and intellecthal property rights. Thediscussions of the group revealed the necessity andusefihess of identifying the problems in this area.Patrice Lyons represented the Copyright Office atthe First Continental Conference on Copyright,sponsored by the Inter-Amkrican Copyright Institutewith the assistance of WIPO, and the First BrazilianCongress on Copyright, held at the Faculdade deDireito of the University of SP o Paulo, Brazil, fromJune 5 to 10, 1977. Ms. Lyons was asked to chairthe panel discussion on reprography and to give atalk to the conference on that subject. After themeeting In Sa'o Paulo, she Ce nt t o Rio de Janeiro t o

discuss with interested persons the Brazilian law onpublic performance rights in sound recordings andthe system adopted in Brazil for the collection anddistribution of the royalties relating to such rights.During the month of August 1977, Harriet Olerand Charlotte Bostick of the Copyright Officetraveled extensively in Europe to collect informa-tion on European law and practice in relation toperforming rights in sound recordings. This materialwill assist in the preparation of the report that theregister of copyrights is directed by section 114(d)of the new U.S. copyr ight law to subm it to Congresson January 3, 1978. Section 114(d) of the new lawstates specifically that the report of the registershould describe the status of performance rights insound record ings "in foreign countries , the views ofmajor interested parties, and specific legislative orothe r recommend ations, if any."JUDICIAL DNEUlPMENTSThere were a number of important court decisionson copyright and related subjects during the year,some of which have particular significance in con-nection with the new copyright law.Common I a w Copy~ight, nflitCompelidion,and Related DocbrlnaOne of the mo st significant changes wrought by thenew law is the establishment of a uniform federalsystem of copyright, applicable to all published andunpublished works alike. In drawing a jurisdictionalline between federally preempted copyrightprotection and common law doctrines not equiv-alent to copyright, the new law has focused theattention of the legal profession more sharply thanever upon those stepchildren of copyright: unfaircompetition, privacy, misappropriation, andcommon law trademark protection. In keeping withthe challenge of settling the new boundariesbetween federal and state power, this year sawseveral fascinating decisions in the field of commonlaw copyright and related rights.

In Bicentennial Commission v. The Olde BradfordCo., Inc., 365 A2d 172 (Comm. Ct. of Pa., Oct. 22,1976), the Bicentennia l Commission ofPennsylvania adopted an official seal and registeredit as an emblem and service mark under applicablestate laws. The commission licensed a private-


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REPORT OF THE REGISTER OF COPYRIGHTS, 1977compa ny to reproduce the seal on metalware, to besold as souvenirs; and, when the defendant repru-duced the seal on items similar or identical to thosemanufa ctured by its licensee, the commission sued.It alleged that the unauthorized reproduction of itsseal violated four relevarrt statutes: that relating tothe protection of "emblems," the state sta tut ecreating the ~ i c e n t e n n i dCommission, the state'strade and service mark law, and the PennsylvaniaUnfair Trade Practices and Con sumer ProtectionLaw. For our purposes, only the count allegingviolation of the Bicentennial Act is of importance.That statute, purporting to prohibit the un-authorized reproduction of the commission's marks,was construed as having( both elements of unfaircompetition and copyright, but upon c l o s exarnina-tion the court was unable to find the statutory aimof preventing public confusion over the nature ororigin of goods characteristic of unfair competitionlaws. In sum, the court did not find anystatement in the act which spedfier the parties to beprotected or the type of confusion to be avoided. It appearsclear, therefore, that the dominant intent of the act is toprohibit, as does federal copyright law, the mere un-authorized production of the Commission's marks, As such,the state law should be pte-empted.Against the commission's argument that Sears andCompco (Sears, Roebuck & Co. v. Stiffel Co., 37 6U.S. 225 [1964], and Compco Corp. v. Ray-BriteLightiqg, Inc., 376 U.S. 234 [19 64] ), have been"substantially weakened, if not overruled" byGoldstein v. CSllifomiu (41 2 U.S. 54 6 [I9731 ), the,court noted that, d i k e the case of sound re-cordings fmed before February 15, 1972, section5(g) and (h) of tit le 17 U.S.C. has consistentlyprotected "works of art" such as the seal of theBicentennial Comm issio~ .Statutory copyright has never been the source ofprotection for the mere titles of otherwise copy-rightable works. Two cases decided this yeardemonstrate the extent to which protection fortitles is available at common law.In Kirkhnd v. Nationql Broadcosting Co., 425 F.Supp. 1111 (E.D. a., Dec. 17, 1976), the creator of"Land o f the Lost," a highly successful radioprogram between 1943 and 1948, sued for unfaircompetition arising out of the defendant's use ofthe identical title in a television series almost twentyyears after the plaintiffs radio show went off theair. Both show s, although quite different in

continuing plot and theme, were directed towardchildren. In granting the defendant's motion forsummary judgment, the court noted that, whilestatutory copyright does not protect titles, unfaircompetition will, if two essential elements exist: (1)that the title in question has acquired a "secondarymeaning" in the minds of the public (that is, thetitle is so clearly identified with its source thatsupply from another source is clearly calculated todeceive the public and lead it to purchase the goodsof one for that of another); and (2) that there is alikelihood of public confusion as to the source ofthe work. Noting the number of years which hadelapsed since the last com mercial use of the title byplaintiff, the court cohcluded that, even assumingthe existence of a secondary meaning in the heydayof radio, such meaning had long since been lost.Similarly, the court saw little likelihood of publicconfusion: those old enough to remember theplaintiffs radio show would not be a part of theaudience to which the children's show of thedefendant was directed. Going somewhat beyondthis holding, however; the court also stated that theextended nonuse of the title, despite plaintiffsdesire to exploit her original concept under thattitle, worked an abandonment of her rights in thetitle "Land of the Lost."In Allied Artists Pictures Corp. v. fiedman, 137Cal. Rptr . 94 (Cal. App. Ct., Mar. 15, 1977), thescene shifts from children's programming todecidedly adult fare. Plaintiff, holder of exclusive

U.S. distrib ution rights to the critically successfulFrench fdm The Story of 0, ought to enjoindefe ndan t's distribu tion of a low-budget U.S. fdmentitled The Journey of 0. he trial court in AlliedArtists agreed with plain tiff s argument that the titlehad acquired a secondary meaning owing to thenotoriety of the book The Story of 0, pon whichthe French fdm was literally based and to which theU.S. fdm only generally related. The trial courtfound the two "confusingly similar" and issued aninjunction requiring defendant to include a dis-claimer in its advertisements and trailers. In additionto defendant's appeal, plaintiff cross-appealedalleging that the lower court's refusal to extend th einjunction to activities outside California was inerror. The appellate court declined to disturb thelower cou rt's finding of secondary meaning, notingthat it was unimportant that such a meaningresulted from the activities of others tha n plaintiff-in this case, the publishers of the literary work. The


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REPORT OF THE REGISTER OF COPYRIGHTS, 1977court did, however, conclude that the injunctioncould be made applicable to out-of-state activities ofthe defendant.Just as statutory copyright has not protectedtitles, however unique or valuable, the federal lawhas similarly denied protection. to "characters" and"performances," at least to the exten t that they arenot embodied in copyrighted works. Among themore interesting and volatile areas of the commonlaw, "character protection" and the related rights ofprivacy and publicity were the subject of twoimportant cases, Lugosi v. Universal Pictures, 139Cal. 'Rptr. 35 (Cal. Ct. App., June 9, 1977), andZacchini v. S@p s Howard Broadcasting Co., 45U.S.L.W. 495 4 (June 28, 1977):Lugosi, as might be expected, involve'd the extentto which the film company which produced anddistributed the classic h c u l a could exploit thelikeness of the film's star as Cou nt Dracula with outinfringing upon rights which Bela Lugosi may havehad in his own likeness. Further complicating theissue was the fact that the interest in Bela Lugosi'slikeness was being asserted by the deceased actor'swidow and son. Although Universal's con tract w ithLugosi included standard clauses retaining rights tothe reproduction and exploitation of his "acts,poses and appearances of any and al l kinds," theserights were generally limited to use in connectionwith the fdm and its publicity. Lugosi's heirsasserted that merchandising agreements sub-sequently entered into by Universal exceeded theterms of the original employment contract andinfringed upon rights Lugosi had in his likeness. Th etrial court agreed with the plaintiffs, observing thatthe defendant's exploitation of Dracula was, in fact,'"selling the likeness of Bela Lugosi in the role ofCount Dracula." The co urt held that Lugosi had aprotectible p rope rty or prop rietary right in his facialcharacteristics and the individual manner of hislikeness and appearance as Count Dracula. Further,the trial court held that this interest did notterminate with Lugosi's death and that his heirscould assert it under the actor's will. On appeal, thecourt disagreed and reversed. The court of appealsdid agree that the common law of privacy wouldhave allowed Lugosi to create a valuable interest inhis name, likeness, or both, but that he had notdone so during his lifetime.. Without t he associationof likeness with a product or service, no secondarymeaning could have been created during his lifetimewhich unfair competition law protects. After death,

however, whatever ability Lugosi might have had toexploit his likeness was held to have terminated, hisname and facial characteristics falling into thepublic domain. The court's holding was narrowlydrawn:We are n ot prepared to say, however, that respondents orany person other than Universal could have attempted tobuild a business with a secondary meaning, which busineraexploited the name Lugosi, and coupled LugoJi'sname withthat of Dracula That question is not before us.The court of appeals distinguished the case at handfrom earlier holdings recognizing that "property"interests in name and likeness are transmissible bywill on the grounds that this has been recognizedonly where assignments of the right to use a likenesshad been made during the lifetime of the actor/creator.Zacchini v. Scripps Howard Bmadcasting Co.,involved the unauthorized filming of HugoZacchini's "Human Cannonball" act, at a fair, by alocal television station . Zacchini's fifteen-secondperformance was shown in its entirety on theevening news, with favorable comments, includingthe urging of viewers t o see it "live." Zacchini suedin state court for unlawful appropriation on hisprofessional property. Following the trial court'sgrant o f sum mary judgment against Zacchini, theAppellate Court of Ohio reversed, stating that theunauthorized filming of th e performance co nstitute dcommon law copyright infringment. The SupremeCourt of Ohio agreed that the unauthorizedappropriation o f Zacchini's likeness or name bymother for the latter's commercial benefit would bean actio nab k misapprop riation of "Zacchini's rightto the publicity value of his performance." In theabsence of a privilege, therefore, the defendantwould be liable. The court ruled against Zacchini,however, because i t found such a privilege t o exist:

[ A ] TV statibn has a privilege to report in its newscastsmatters of legitimate public interest which otherwise wouldbe protected by an individual's right of publicity, unless theactual intent of the TV station was to appropriate thebenefit of the.publicity for some non-privileged private use,or unless the actual intent was to injure the individual.The U.S. Suprem e Court granted certiorari toconsider "whether the First and Fou rteen th Arnend-men ts immunized respond ent from damages for itsalleged infringement of petitioner's state law 'right


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REPORT OF THE REGISTER OF COPYRIGHTS, 1977of publicity.' " Examining its earlier cases whichhave considered the relationship between the rightof privacy and the constitutional sources of freedomof the press, the Supreme Court noted that Time,Inc. v. Hill, 385 U.S. 374 (1967), did not necessarilycontrol because it was ultimately concerned withthe protection of reputation through recogn ition ofa right to In Zucchini, the issue wasprotection of a proprietary interest in order toencourage creative entertainment in the fashioncontemplated by Article 1 , Section 8 of the U.S.Constitution. The television news report, byreproducing Zacchini's entire performa nce, posed anobvious "substantial threat t o the econom ic value ofthat performance." The majority observed:

There is no dou bt that entertainmen t, as well a s news,enjoys First Amendment protection. It is also true thatentertainment itselfcan be important news. . But it isimportant to note that neither the public nor respondentwill be deprived of the benefit of petitioner's performanceas long es his commercial stake in his act is appropriatelyrecognized.In dissent, Mr. Justice Powell argued that theCourt's opinion was not sufficiently sensitive to theFist Amendment values at stake. Characterizingrespondent's activities as no more than normalreporting for a visual medium of communicationand as only a brief part of the regularly schedulednews, Justice Powell saw "disturbing implications,for the decision could lead to a degree of mediaself-censorship." Concern over possibly filming anentire protectible work or performance might, headded, inhibit effective reporting and force tele-vision to "watered-down verbal reporting." Fo rJustice Powell the issue turned not on how muchwas taken , bu t for what use-commercial explo ita-tion or news?Mr. Justice Stevens, in a separate dissent, ques-tioned the majority's reading of the Ohio SupremeCourt decision as resting on federal constitutionalgrounds. Justice Stevens would have remanded thecase for clarification of the holding which, hesuggested, could have been doing no more thans tt in g out the limits of a common law tort.Bonner v. Westbound Records, Inc., 364 N E 2d570 (App. Ct. Ill., 1st Div., June 8, 1977), saw a

I singing group allege that defendant, their formerrecording and publishing company, took studiotapes of the group's unedited and unfinished per-formances, wrote new music and words for thosesongs which were incomplete, overdubbed with

other m usicians, and released the resulting albums uthe group's work. The plaintiffs asserted that t h macts constituted violations of the deceptive tradepractices legislation of Illinois, in that the worksdistributed by the defendants were either older,previously released songs advertised as new or wereincomplete takes finished by unknown musiciiuarand sold as creations of the plaintiffs. The defe6d-ants asserted that the recording and distributioncontract under which the parties had worked gavethe defend ants the right to "couple" plaintiffs'performan ces with those of "others," and that theacts taken to complete t he studio tapes were withintheir contractual rights. The court rejected thedefendants' contract defense, concluding that thecontractual right to couple plaintiffs' performanceswith those of others extended not to "overdubbing"plaintiffs' songs but only t o putting plaintiffs' songson the same disc with songs of other artists. Thisnarrow interpretation of the contract was justifiedin the court's view, because contr acts for the sale of'literary properties are n o t t o be read as grantingrights to m ake m aterial alteratio ns unless such rightswere either expressly granted or "plainly implied"from the contract. This standard of contractualinterpretation approaches a recognition of what hasbeen called the "moral right." The court, however,disclaimed a ny intentio n t o rest its decision on thedoctrine of the moral right.The decision in Universal City Studios v. SonyCop. of America, 42 9 F . Supp. 407 (C.D.Calif.,Mar. 28, 1977), sharpened the issues in rlitigation which has attr acte d substantial publicattention. Plaintiff, a motion picture copyrightproprietor, sued the Sony Corporation for copyrightinfringement, tortious interference with contractualrelations, and unfair competition through merchan-dizing of the "Betamax" home video recordingdevice. The defendant moved to dismiss the countsin the com plaint, alleging violations of section 43(a)of the Lanham Act [15 USC, section 1125(a)] .Plaintiff based allegations of a Lanharn Act violationon the defendant's failure to advise the public thatuse of the Betamax to copy copyrighted programsoff the air is copyright infringement, which "hascaused the public to be confused and misled intobelieving that copying. .. s done with the permis-sion of copyright owners and that it is otherwiselegal." The cou rt agreed with the defendant'rcontention that the conduct alleged to violatesection 43(a) is, in fact, not actionable under theLanham Act. The court found it difficult to "credit-


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REPORT OF THE REGISTER OF COPYRIGHTS, 1977as reasonable the inference plaintiffs claim isimplicit in defendant's advertisements. To say that'This prod uct is capa ble of copy ing television shows'is simply not the same as saying 'When you use thisproduct to copy television shows you a n actinglegally.' " The c ourt did not pass on the question ofwhether defendant's actions constituted unfaircompetition, holding only that the thrust df section43(a) violation was a false de s ip ti o n and that "it ishard to see how a simple failure to disclose can bebrought w ithin its tetms."

The cases considered in this section touch on issueswhich have traditionally been troublesome underthe 1909 statute. The relatively rigid requirementfor notice of copyright on all published copies of awork in which copyright is claimed has made boththe elements of a good copyright notice and thedefinition of "publication" particularly impo rtant.In Mitchell Bros Film Group v. Cinema AdultTheutre, C.A. No. 3 -7 46 45 -D (U.S.D.C. No. D.,Texas, Sept, 2, 1976), the defendan t claimed that a1972 exhibition of the film in question constituteda general publication without notice, throwing thework into the public domain. Looking at thecircumstances of thb exhibition, the court con-cluded that there was no general publication in viewof three significant factors: (1) the proven intent ofthe exhibition was to gauge audience reactionbefore full theatrical release; (2) the print used wasa "first answer print," no t commonly used forgeneral trade release; and (3) a copyright statementon the film, while not a proper notice, evidencedthe restricted or limited purpose of the exhibition.' As a result, it was held that absence of a copyrightnotice was no t fatal t o the claim of copyright.The long and complex history of the distributionof the prose poem "Desiderata" by Max Ehrm annwas alleged to amount to a general publicationwithout notice in Bell v. Combined Regisny Co.,536 F2d. 164 (7th Cir., May 14, 1976; reh. den.,July 15, 1976). The loss of copyright was no t,however, alleged to arise ou t of thefi rst publicationof the work. In 1927, Ehrmam "obtained a federalcopyright" in his poem "Desiderata." He late rreproduced the work on his personal Christmascards and no evidence was adduced as to whether acopyright notice appeared on those cards. Between

1942 and 1944, Ehrmann corresp onded with MerrillMoore, an Army psychiatrist, who distributedcopies of the poem to his patients with the consentof the author. Dr. Moore's distribution of the poemextended to his private practice as well. FollowingEhrmam's death, the poem was reprinted without acopyright notice, and a clergyman testified that hedistributed "many copies" without the requirednotice. The trial judge concluded that Ehrmam hadconsented to distribution of his poem withoutnotice an d by so doing worked a "forfeiture andabandonment of his copyright protection in thework." On appeal, the court found tha t the distribu-tion of the work on Christmas cards was not ageneral publication and, further, even though theclergyman in the case had distributed many copiesof the work, it was not done under Ehrmann's au-thority. The court did hold, however, that the corre-spondence between Ehrm ann and Dr. Moore supplieddirect, credible evidence "of a general publica tionauthorized by the copyright proprietor.'' The courtquestioned the trial judge's conclusion that thecopyright had been "abandoned," the facts notnecessarily warranting a reasonable conclusion thatEhfmann, when uuthorizing the distributions by Dr.Moore, actually intended to a bandon his copyright.But the appellate court concluded by affirming thejudgment of the lower court on the ground thatforfeiture had occurred by authorized publicationof copies without the correct notice on them.In E d Brawley, Inc. v. Gaffney, 192 USPQ 593(N.D. Cal., Aug. 16, 1976), plaintif fs boo k on scubadiving training was published with a proper copy-right notice. In the course of this infringementaction, however, it became apparent that the copy-righted w ork was drawn from lectures prepared anddelivered by the plaintiff many years earlier, as theteaching co ncepts embodied in the book were beingdeveloped. Plaintiffs lectures were reduced t o notesby a student (and later, colleague), but were neithercopied nor, initially, given to other instructorsworking with the plaintiff. In 1967, ten cop ies ofthe notes were given to other instructors beingtrained under the plaintiff, the intention being thatthe instructors deliver their lessons verbatim fromthe "notes! After each lecture session, the no teswere returned to the plaintiff. In addition, copies ofthe notes were given to the stu dents by th e plaintiff,with the caution that they not be given to anyoneelse or copied. The court concluded, in relevantw t , that the distribution to students was a limited


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REPORT OF THE REGISTER OF COPYRIGHTS, 1977publication that did not work a forfeiture ofcopyright. Similarly, it was held that the distribu-tion t o instructor s was no t a general publication.Determining if and when architectural works are"published" is occasionally awkward , as Mastersonv. McCZoskie. 55 6 PZd 123 1 1Co lo. Ct. App., Sept.9, 1976), demonstrates. In Masterson, a suit wasbrought for the infringement of common lawcopyright in architectural plans. Plaintiff, with anarchitect, drew u p plans far a dwelling and submit-ted copies to the owner of the plaintiffs develop-ment and to the local building department (asrequired by law). In the course of constructing thehome, copies of plans were routinely given tocontractors and subcontractors. None of thesecopies bore a copyright notice and n ot all the copieswere returned to plaintiff after the construction wascompleted. Defendant built his home based upon acopy of plaintiffs plans, obtained from a subcon-tractor who worked on the original home. Thelower court had concluded that copyright in theplans was lost by a general publication withoutnotice and plaintiff appealed.In sustaining the holding of the trial court, theColorado Court of Appeals held that, while thefiling of plans with the building department andsubmission of plans to the developer were bothlimited publications,where as here there is no statutory copyright, constructingthe house according to the plans and thereby incorporatingthe design into the structure, in plain view of the generalpublic, constituted a general publication, at least as to theexterior plans.

In Lopez v. Electrical Rebuilders, Inc., 416 F.Supp . 11 33 (C.D. Cal., July 22, 1976), plaintiffpublished auto supp ly catalogs which incorporated aunique coding system. The defendant was allowedby plaintiff to copy from the 1973 catalog for onetime only; subsequently, the defendant reproducedan additional catalog using the plaintiffs codingnumbers. The defendant argued that the work,insofar as it embodied the coding numbers, was inthe public domain because it was reproducedwithout copyright notices on some of plaintiffscatalogs and because of its general trade acceptancein the business documents of third parties. Thecourt found that eleven of the forty catalogpublished by the plaintiff since 19 48 failed to carrya copyright notice, and that plaintiff knew thatcompanies selling products described in the catalog

were using the plaintiffs code numbers on theirprinted price lists and stock labels, all withoutnecessary copyright notices. The court rejectedplaintiffs argument th at the savings provision insection 21 of the 1909 copyright statute applied.Instead, the court read that section as excusing onlyomissions of notice on a small number of goods orcopies, not on entire issues. The holding of forfei-ture was foun d in plaintif fs longstanding consent t othird-party industrial uses of the code numbers inquestion , without notice of copyright, characterizedby the court as an abandonment of the copyright.In Rosette v. Rainbo RecordMfg. Corp,, 546 F2d46 1 (2d Cir., Nov. 1 1, 1976), the Second Circuitaffirmed Judge Gurfein's 19 73 decision that thedistribution of phonorecords before statutorycopyright was secured in the musical works re-corded did n o t w ork a divestitive publication of thecomposition, but limited recovery to damagesflowing from infringement of statutory copyrights.In a brief opinion, the court in Ayers v. ChdenceIndustries, 193 USPQ 244 (h' up. Ct., June 15,1976), held that, where plaintiff who did not availhimself of the federal copyright law transferreddrawings for publication to the defendant whopublished them wi tho ut copyright notice, the repro-duction rights of plaintiff under 219(g) of theNew York General Business Law, which providesthat the artist who transfers a work of art retainsthe right of reproduction until it passes into thepublic d omain, were lost and that th e works were inthe public domain.

Imperial Toy Corp. v. Ringer (U.S.D.C., C.D. Cal.,July 15, 19 77) was a mandam us action broughtagainst the register of copyrights to com pel registra-tion of a commercial print manufactured in HongKong for plaintiff, a U.S. corporation. Registrationwas denied because the work was produced by alithographic or photoengraving process outside theUnited States, in contravention of the manufac-turing clause of the 1909 copyright statute. Thecourt refused to compel registration, agreeing tha tthe manufacturing clause extended to commercialprints and labels, and noting that the register has theauthority to establish rules and regulations govern-ing registration and cannot be compelled to registera work not entitled to registration under thecopyright statute.


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REPORT O F THE REGISTER OF COPYRIGHTS, 1977Registration has traditionally been a necessaryprerequisite to the bringing of an infringement suitunder the federal copyright statute. In fiederickFell Publishers, Inc., v. Lomyne, 422 F. Supp. 808

(S.D.N.Y., Sept. 2 7, 1976), the plaintiff apparentlyforgot t o allege comp liance-with the registration anddeposit requirements of the copyright statute in thecomp laint. The court noted , "[A] lthough a meretechnicality under the circumstances, such recita-tion is jurisdictionally required. The motion todismiss is therefore granted without prejudice toplaintiffs filing of an am ended comp laint."In three infringemen t actions, cour ts had occasionto refer to the section of the 1909 copyright statutewhich provides that the certificate of registrationshall be "prima facie evidence of the facts sta tedtherein." Each co urt rephrased this single statem entin the course of citing the section in question. InReuben H. Donnelley Cotp. v. Guides to Multi-national Business, Inc., 193 USPQ 79 1 (N.D. Ill.,July 1, 1976), the court held the certificate to beprima facie evidence of the facts therein and of thevalidity of the copyright. In Urantia Foundation v.King, 194 USPQ 171 (C.D. Cal., Mar. 21 , 1 977 ), thecourt accepted the certificate as prima facieevidence of originality, ownership, and copy-rightability; and in Nik-Nik Industries v. WaltDisney Productions, 76 Civ. 2634 (U.S.D.C.,S.D.N.Y., Jul y 12, 1976), the cou rt accorded thecertificate prima facie evidence of "properregistration," the facts in the certificate, and thevalidity of the copyright.

In Mitchell Bros. Film Group v. Cinema Adult?%eatre, discussed earlier; th e film Behind the GreenDoor was registered & a "motion picture other thana photoplay." Defendant's argument that the filmwas dramatic in nature and erroneously classified,thus making the registration defective, was rejectedout of hand. The court noted that there was noshowing that the characterization of the frlm asnondramatic was an intentional misrepresentationamou nting to a "fraud".on the Copy right Office. Inany event, the court pointed out, section 5 of thecopyright act establishes the rule that errors inclassification do no t impair the copyright in a work.

Subject Matter of Copyright andSw pe of ProtectionTwo cases raised the hotly debated question of thecopyrightability of works which are found to be

obscene. Mitchell Bros Film Group v. Cinema Adu lt?%eatre has been considered earlier in connectionwith o ther issues in the litigation. In this action forcopyright infringement of the film Behind theGreen Door, th e principal defense was that the wo rkwas obscene and the "court should n o t . . . enforcethe copyright protection to which the movie wouldnormally be entitled ." The cour t, reading Mazer v.Stein, 347 U.S. 201 (1954), and Baker v. Selden,101 U.S. 9 9 (1880), stressed that the purpose ofcopyright was the "promotion of the sciences" andthat works failing to do sowould not be entitled tocopyright protection. Turning to the cases dealingwith copyright in obscene works, the court sum-marized them as being "few in number and no t ofvery recent vintage," bu t said that "the court s haveuniform ly recognized that an obscene work will no tbe afforded copyright protection by the courts."The principle which produces this doctrine was, thecour t stated , tha t "a cour t of equ ity will not lend itssupport to on e with unclean hands and for purposesthat are contrary to the public interest." The cou rtthen considered what standards should govern theinquiry in to alleged obscenity. Noting that bo th thecopyright act and the First Amendment are nationalin their reach, the court concluded that thestandard for de termining obscenity in a copyrightcontext should be that devised by the SupremeCourt under the First Amendment. Applying therules of Memoirs v. Massachusetts, 383 U.S. 413(1966), and R o t h v. United States, 35 4 U.S. 47 6(1957), the court held that Behind the Green Doorwas obscene and found in favor of the defendant.The holding in Mitchell was considered in ArgosFilms v. Barry International Properties, 2 Med. L.Rptr. 2179 (S.D.N.Y., July 7, 1977), where th edefendant, in an action involving breach of contractand copyright infringement (by unauthorized per-formance), contended that the work In the Realmof the &rues could not be protected by copyrightbecause it was obscene. The court, while distressedby the ironies of recognizing the obscenity defenseas between two parties seeking to publicly exploitthe work, concluded that the principle in Mitchell isin accord with the principles underlying the copy-right act and embo died in Article 1, Section 8 of theU.S. Co nstitution . U pon a screening of the work,coupled with the expert testimony of critics,evidence of critical acclaim here and ab road, and th enonintervention of local law enforcem ent, the cour tconcluded that the defend ant failed to establish thatthe work was obscene.


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REPORT OF THE REGISTER OF COPYRIGHTS, 1977The scope of copyright protection in fabricdesigns-"bias plaid" upholstery-was the subjec t atissue in Nove lty Textile Mills, Inc. v. Joan Fa bric sCorp., 194 USPQ 347 (2d Cir., July 12, 1977). Inthat case, the defendant reproduced the black andwhite pattern of plaintiffs orig