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SIXTY-SEVENTH

ANNUAL REPORT OF THE

REGISTER OF COPYRIGHTS

COPYRIGHT OFFICE
IWE LIBRARY O F GONG-
W A ~ O T O:N1965
I LC.Card No. 10.35017
'

i This report is preprinted from the


~ e p aol j PI ~itmrianof Conpa88
,-for the fiscal year ending June 30, 1964
Contents

THE COPYRIOWT OPPICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


The Year's Copyright Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Official Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Copyright Contribution8 to the Library of Gongreas. . . . . . . . . . . . . . . . . . . . . .
Administrative Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Legislative Developmenb ............................................
Judicial Developments ...............................................
Actions Pending Against the Register of Copyrights . . . . . . . . . . . . . . . . . . .
Subject Matter of Copyright Protection ..............................
Notice of Copyright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Publication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Registration ......................................................
Renewal and Ownership of Copyright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
International Copyright Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Infringement and the Scope of Copyright Protection . . . . . . . . . . . . . . . . . . .
Remedies for Infriigement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Unfair Competition and Copyright .................................
Antitrust Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
International Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
International Copyright Relations of the United States as of November 1,
1964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Registration by Subject Matter C l a m . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Statement of Gross Cash Receipts, Yearly Fees, Number of Registrationo, etc . .
Number of Articles Deposited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Summary of Copyright Business, Fiscal Year 1964 .......................
Publications of the Copyright Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Copyright Office
Report to the Librarian of Congress
by the Register of Copyrights

iscal year 1964 was possibly the most The purpose of distributing preliminary

F active and productive period thus far


in the current program for general re-
vision of the copyright law. As the year
draft sections for discussion and criticism
was to pinpoint and seek comments on all
the questions of content and drafting likely
began, the preparation of a preliminary to be raised by a general revision bill. The
draft bill was in full swing: 18 draft sec- draft included alternative provisions on
tions, based upon an exhaustive analysis of several controverted issues, and the lan-
the many comments received on the Report guage was intentionally made detailed and
of tho Register of Copyrights on the Gen- precise to insure that important issues
eral Revision of the U.S. Copyright Law would not be overlooked but would be
and of various foreign laws and earlier re- fully discussed. This plan proved success-
vision bills, had already been circulated and ful in eliciting a large number of meaning-
discussed at four all-day sessions of the ful and constructive observations and sug-
Panel of Consultants on General Revision. gestions which resulted in improvements
During the year, 34 additional draft sec- in language and which paved the way for
tions were prepared and circulated. These some necessary compromises.
were discussed at four more Panel meet- The second half of the fiscal year was
ings: on August 15 and 16, 1963, in Chi- devoted to the large and difficult task of
cago and on October 8, 1963, November compiling, analyzing, and synthesizing all
13, 1963, and January 15, 1964, in Wash- the comments on the preliminary draft, of
making substantive decisions and changes
ington. Throughout the year officials of
on the basis of these comments, and of
the Copyright Office took part in innumer-
completely redrafting the bill, section by
able meetings, discussions, and exchanges section. The preparation of a revised bill
of correspondence with the subcommittees for introduction in Congress was under-
formed under American Bar Association taken by the Copyright Office General Re-
Committee 304 on the Program for Gen- vision Steering Committee, which has been
eral Revision of the Copyright Law, with meeting for over 5 years but never more
various special committees, and with many frequently than during the spring and early
interested organizations and individuals. summer of 1964. During the period the
2 REPORT OF T H E REGISTER O F COPYRIGHTS, 19 6 4

committee, which included George D. For example, further adjustments may


Cary, the Deputy Register, Abe A. Gold- need to be sought with respect to questions
man, General Counsel, Barbara A. Ringer, of Government publications; educationaI
Assistant Register for Examining, and uses of copyrighted material, including ed-
Waldo H. Moore, Chief of the Reference ucational broadcasting; the status of com-
Division, met regularly with the Register. munity antenna systems; the status of juke-
Miss Ringer and Mr. Goldman were the box performances; the scope of "works
principal draften of the revision bill. made for hire" ;the provision allowing ter-
Just after the close of the fiscal year, on mination of transfers of copyright owner-
July 20, 1964, the Copyright Office's bill ship; and manufacturing requirements.
for the general revision of the copyright In the coming fiscal year the Copyright
law was introduced in the Senate by Sen- Office hopes to work toward reconciling
ator John L. McClellan (S. 3008) and in these and other issues, with the immediate
the House by Representative Emanuel Cel- goal of presenting a newly revised bill and
ler (H.R. 11947). The bill was also later report to the 89th Congress.
introduced by Representative William L.
St. Onge on August 12,1964 (H.R.12354).
This event marked a turning point in the The Year's Copyright Business
revision program. The study and draft-
ing phase is now qver; the active legislative Registrations in 1964 rose to an alltime
phase is opening. peak of almost 279,000. The total of com-
The final draft of the bill as introduced pleted registrations increased more than
was prepared by the Copyright Office with- 14,000, or well wer 5 percent. October
out the direct collaboration or consultation 1963 was the largest month in the history
of any private groups or individuals. In of the Copyright Office in terms of earned
addition to simplifying, clarifying, and fees, and April 1964 was the second largest
substantially condensing the language of month in tenns of registrations. The ta-
the preliminary draft, the Office made bles appearing at the end of this report
choices between the various alternatives give detailed figures.
offered in the earlier draft and also adopted By far the largest increase was in regis-
some important substantive changes. In trations for periodicals, which gained by
arriving at a final draft the Office was nearly 5,000 or more than 7 percent.
helped immeasurably by the comments it While coming close, periodical registrations
had received, and particularly by the sug- did not quite surpass the total number of
gestions of the subcommittees of American registrations for music, which increased by
Bar Association Committee 304 under the nearly 4 percent and remained the largest
able chairmanship of John Schulman. single class of material registered. Book
The Office also sought to meet with indi- registrations also rose by the substantial
viduals and groups in an effort to work out margin of nearly 5 percent, but among the
viable compromises on as many issues as major classes the largest relative gain (12
possible. percent) was shown by renewals. The
Although introduction of the bill is a number of assignments and related docu-
clear step forward in the progress of re- ments recorded increased 9 percent and
vision, it should not be regarded as a final that of notices of use, 16 percent. In the
statement of the fixed views of the Copy- smaller classes there were surprisinglylarge
right Office. It is obvious that important increases in works prepared for oral de-
issues and conflicts remain to be settled. livery, photographs, and prints and
REPORT QF THE REUISTJSR OF COPYmHTS, 1 9 6 4

illuStmtio~.Motion p i c t m lev- of the Catdog wm during


eled off, works of art and "desips" de- Year.
creased by mme 5 percent, and commercial The 18th volume of Decirionr of
prinfi and labels rnumed their decline. United mates C O UInvolving~
Fiscnl 196( wn, the 12th straight year in ( Bulletih 33) ,covering the period
which total rr@tratiQns increased; it edited by Benjamin Rudd, was issued
a of 15 percent over the p u t November 1963. The Ofice also publid
5 years and 32 percent over the total of a revised edition of ~ o p y z i g h Enactme1
t
10 years ago. Laws Passed in the U.S. Since 1783 1
Of the applications for registration and luting to Copyright, a 150-page 1-
other materials received during the year, compilation of U.S. laws enacted throu
86.5 percent were acted upon without cor- 1%2.
respondence, 2.5 percent were rejected, Throughout the year transcripts of f
and 11 percent required correspondence meetings of the Panel of Consultants
before final action could be taken. Fees General Revision, at which the prelimina
earned for registrations and related serv- draft of the revision bill was discussed, we
ices again broke all records; the total of edited and issued in multilith form. The
$1,133,547 represents an increase of will be collected in printed editions duri~
$55,799 or more than 5 percent. the following year, together with writtc
The Cataloging Division prepared over comments received on the diaft.
5,500 pages of copy for the semiannual
issues of the eight parts of the Catalog of Copyright Contributions to the
Copyright Entries and produced and dii- Library of Congress
tributed nearly 1.7 million catalog cards.
Of these, some 620,000 carda were added to In 1964 over 449,000 articles were dt
the Copyright Card Catalog, 214,000 were posited for copyright registration, reprr
scnting an increase of somewhat less tha:
unt to subscribers to the cooperative card
percent over the previous year. Of
sewice, 73,000 were furnished to the Li-
toul, role 241,m weR tRns
b m ~ 7 8 1 ~ mServed as fed m the Library of Congm for it
copy for the printed Catalog. collections or for disposal through its Ex
The Search Section also had a change and ~ i fDivision,
t ~h~~ transfers
banner Year. Almost 10,600 searches were which were in addition to bulk transfers ir
made, a gain of 5 pucent. T o answer the various classes from depoaits in prtviour
questions involved in these searches some yem, constitute an increase of well ovel
68,000 titles were reported, a gain of 21 6 percent, and include most of the current
percent. book, periodical, music, and map produc-
tion of the American publishing industry.
The efforts of the Compliance Section
Official Publications of the Refertnce Division to obtain compli-
ance with the registration and deposit re-
publication of the issues of the Catalog of quirements of the copyright law resulted in
Copyright Entries continued at a nearly more than 12,000 registrations, an increase
normal schedule, although the time lag in of some 9 percent over fiscal 1963. The
publication created in 1962 and 1963 by copies deposited as the result of this activity
losses of experienced penonnel has not yet were valued at more than $228,000, and
been ovtrwme The mraphical f o m t fees wen received totaling more than $52,-
4 REPORT OF T H E REGISTER OF COPYRIDHTS, 1 9 6 4

000. Correspondence and meetings con- ceived visually or read, it was agreed
cerned with efforts to obtain deposit of that a readable form such as a print-out
copyright record sleeves and album jackets of the entire program would have to be
continued throughout the year. deposited also.
In the past, the Copyright Office has
undoubtedly made registration for a num-
Administrative Developments ber of computer programs as parts of larger
Throughout fiscal 1964 one of the most works such as books and periodicals. The
pressing problems facing the Copyright three registrations made near the end of the
Office was the registrability of computer year, however, were probably the first for
programs. M c i a l s engaged in consider- computer programs as such, and for this
able research into the background of the reason they attracted a great deal of atten-
problem and participated actively in meet- tion and publicity. There are indications
ings, discussions, and correspondence aimed that the Office's decision is being given
at resolving the two basic questions in- careful consideration. by those concerned
volved: (1) whether a computer program with the development of this vitally im-
as such is the "writing of an author" and portan t technology.
thus copyrightable, and (2) whether a re- Difficult problems continued to arise in
production of the program in a form connection with the deposit of copies of
actually used to operate or to be "read" by electronic musical compositions since no
a machine is a "copy" that can be accepted adequate system exists for notating pre-
for copyright registration. recorded electronic, vocal, or other sounds;
In April 1964 these doubtful questions in at least one case an oscillogram was ac-
were decided in favor of registration. The cepted as a "copy" of the musical composi-
Office announced, however, that before a tion. Works written by U.S. Government
computer program will be registered it employees also continued to cause a great
must meet the following requisites: deal of correspondence to determine
whether they are "publications of the
(1) The elements of assembling, se- United States Government" and therefore
lecting, arranging, editing, and literary wholly or partly uncopyrightable. Prob-
expression that went into the compilation lems presented by the manufacturing clause
of the program must be sufficient to con- were intensified by rapid advances in the
stitute original authorship. techniques of book production. Two recur-
(2) The program must have been ring questions were when to require state-
published with the required copyright ments of new matter in certain classes of
notice-that is, "copies" (i.e. reproduc- material (notably maps and music) as well
tions of the program in the fonn in which as how to word acceptable statements and
the content is perceptible, or capable of what cor.,titutes the "best edition" of a m e
being made perceptible, to the human tion picture that has been distributed in
eye) bearing a notice of copyright must more than one size or by more than one
have been distributed or made available process.
to the public. A major organizational change took
(3) The copies deposited for wgistra- place in the Examining Division in August
tion must consist of or include reproduc- 1963, when the examination of books and
tions in a language intelligible to human periodicals was merged in fact as well as
beings. Thus, if the material was pub- in theory. Although both operations had
lished only in a form that cannot be per- come within the jurisdiction of a single
REPORT OF T H E REGISTER OF COPYRI(

section for many years, in practice the han- to them were supplied. As the result of
dling of books and periodicals had been the increased workload and the need for
kept entirely separate, with resulting dif- better control of incoming material, the
ficulties. The merger of the operations Service Division inaugurated a new system
was not without its own problems, but there of forwarding material to the Examining
is reason to hope that the benefits from Division. This innovation proved helpful
the change will outweigh the disadvantages. in assuring that cases are handled in ac-
Although the Examining Division made a cordance with their date of receipt. The
number of procedural changes in an effort Examining Division undertook a major
to expedite the processing of assignments change in its methods of keeping weekly,
and other documents, it became increas- monthly, and annual statistics.
ingly apparent during the year that the I n February 1964 the Service Division
indexing of the documents is a function completed a project of sorting and boxing
that can be handled more quickly and all of the copyright applications dating
efficiently in the Cataloging Division. A from 1898 through June 30, 1909, and
detailed plan for shifting the operation was transferred 1,767 boxes of applications to
formulated, developed, and approved and the Federal Records Center in Alexandria,
was ready to be put into effect as the year Va. In order to free badly needed shelf
ended. space, the Office also agreed to destroy cer-
I n the Reference Division changes worth tificate miling records after 5 years, and
noting included the establishment of a pro- to transfer letter books of correspondence
cedure whereby letters enclosing a search (carbon copies) to the Records Center after
fee can be sent to the Reference Search the same period.
Section on the day of their receipt in the In September 1963 the Service Division
Copyright Office; the sending (on an ex- began making photocopies of certain copy-
perimental basis) of reports to attorneys right deposits, applications, and corre-
without receiving the search fee in advance, spondence requested through the Library's
in cases requiring no more than 2 houn Photoduplication Service. This gives
of search time; the undertaking of a large quicker and more efficient service by reduc-
part of the operational liaison between the ing the amount of handling and by provid-
Copyright Office and the Bureau of Cus- ing safeguards not heretofore possible.
toms; and continued work on the compila- More than half of the application form,
tion of pre- 1909copyright cases. in use in the Copyright Office were revised
In January 1964 the Cataloging Division during the year. The most difficult revi-
supplied expanded imprint statements for sions involved the wording, on Form A,
all materials issued in book format and of the affidavit of domestic manufacture.
more specific terms of physical description Representatives of the Book Manufac-
for many classes. I t prepared and distrib- turers Institute argued that the wording of
uted extensive revisions of the copyright the affidavit form in use for the past several
cataloging rules in order to implement and years encouraged some publishers to have
systematize these practices, and it gave con- books produced from imported reproduc-
tinuing attention to other sections of the tion proofs and that it should conform more
rules. From entries originally recorded on closely to the language of section 17 of the
4 x 6 forms, photographically reduced cards statute. This question was also discassed
were produced for periodical registrations with representatives of the book publishing
for the 1946-54 segment of the Copyright industry, and efforts to arrive at language
Card Catalog and claimant cross-references which conforms with the statute and yet
769-601 -9
6 REPORT OF T H E REGISTER OF COPYRIGHTS, 1 9 6 4

leaves the "repro proof" question open activity in the copyright field during fiscal
went on for more than a year. 1964 was relatively meager. As recounted
Revisions worth noting were also made in last year's report, several bills were in-
in one of the Office's most important infor- troduced in the 88th Congress to repeal or
mation circulars: Circular 35 entitled Gcn- amend the jukebox exemption now con-
era1 Information on Copyright. Not only tained in section 1(e) of the copyright law.
was the wording revised and the text re- One of these, H.R. 7194, which was intro-
arranged, but the format was alm com- duced by Representative Celler on June
pletely changed in an effort to make a 24, 1963, would repeal the exemption but
more attractive and readable circular. would provide that no proprietor of a juke-
All four divisions continued to emphasize box location would be held liable for in-
staff training during 1964. Staff members fringement unless he either owned or con-
took advantage of programs offered within trolled the jukebox or refused to identify
the Copyright Office and elsewhere in the the owner. This bill (which was also in-
Library of Congress and also courses and troduced by Representative Seymour Hal-
seminars presented by the General Services pern as H.R. 8457 on September 17,1963)
Administration, the Government Printing was reported out of the full House Judi-
Office, and the University of Illinois Aller- ciary Committee as of September 10, 1963,
ton Park Conference on Research Methods with a majority report by Representative
in Librarianship. On October 3, 1963, an Edwin E. Willis strongly supporting the
allday seminar on copyright problems was bill and two statements of minority views,
conducted for 34 representatives of the by Representatives Byron G. Rogers and
Protestant Church-Owned Publishers' As- Roland V. Libonati, strongly opposing it.
sociation, and a d l a r meeting with repre- The bill was put on the House Calendar
sentatives of music publishing firms was and the Rules Committee held hearings on
it on June 10, 1964, but it was awaiting
held on May 15,1964.
Among the many distinguished foreign further Rules Committee action as the fis-
visitors to the Copyright Office in fiscal cal year ended.
1964, one stands out as deserving special Efforts to secure enactment of legisla-
notice. As part of a 4-month UNESCO tioh for the protection of original orna-
fellowshipin copyright law, Abdur Rahman mental designs of useful articles continued
Khan, Section Officer of the Ministry of throughout fiscal 1964. As the year began
Education of Pakistan, spent several weeks there were four identical bills pending in
inthe Copyright Office. As an official who Congress: H.R. 323 (Flynt), H.R. 769
will be charged with duties connected with (Ford), H.R. 5523 (Libonati) ,and S. 776
the new Pakistan copyright law, Mr. Khan (Hart-Talmadge) . The Senate had
was particularly interested in studying gov- passed an earlier version of the bill during
ernment administrative problems in the the 87th Congress, and on December 6,
copyright field. 1963, it again passed the bill, following a
favorable report submitted by Senator
Philip A. Hart on December 4, 1963. On
Legislative Developments .December 12, 1963, the House Judiciary
Committee held a 1-day hearing at which
Because of the great amount of atten- the preponderance of the testimony favored
tion given to the program for general re- the legislation. In the weeks that followed
vision of the copyright law, other legislative the hearing, however, there were reports
REPORT OF THE REGISTER OF COPYRIOHTS, 1964

of strong opposition by certain retail mer- Judicial Developments


chandising and garment manufacturing in-
terests, related largely to the feared impact Actions Pending Against the
of design protection on the wearing apparel Register of Copyrights
industries. Serious attempts were made to
compromise the conflicting views and to During the year there were two rulings
work out statutory solutions satisfactory to on motions in the famous case of Public
both sides, but no further action had been Aflairs Associates, Znc. V. Rickover, which
taken by the House Judiciary Committee has been pending in the coum for over 5
as the year ended. years, and in which the Register of Copy-
In October 1963 Congrelrs enacted, as righb and the Librarian of Congress are
Public Law 88-155, a joint resolution deal- both defendants. In July 1963 the District
ing with a revised manual of Senate pro- Court sustained all of the objections made
cedure prepared by the Senate Parliamen- on behalf of the Reghter, the Librarian,
tarian and Assistant Parliamentarian. This and the other Government deftndants to
measure provides that the work shall be the voluminous interrogatories which the
subject to copyright by the authon, "not- plaintiff had asked them to answer; Adm.
H. C. Rickover was required to answer four .
withstanding any provisions of the copy-
right laws and regulations with respect to of the interrogatories addressed to him.
publications in the public domain." Sen- Later in the year arguments were heard on
ate Report No. 785 on the Foreign Aid and a motion to pruduce certain documents
Related Agencies Appropriation Bill of from the Copyright Office files; the court
1963 includes a section on unauthorized ordered the Department of Justice to make
reproduction of American books and re- the documents available to the plaintiff
cordinn since there was no claim of privilege with
.. in Nationalist China: the Com- respect to than.
mittee states its view "that the Nationalist
A new action in the nature of mandamus,
Government of China should cooperate in
Armstrong Cork Co. V. Kaminrtein, was
an effort to recognize the rights of Ameri- filed in the District Court for the District
can publishers of books and recordings not- of columbia on J~~~~ 16, 1964 ( ~ ~ ~ k ~
withstanding its registration laws, in view N ~ 119-6)).
, m i s action seeka to
of the assistance this country extended and the &&ster
- to make rnRistation
- for the
continues to extend in its behalf," and re- design of Armstrong's "Montina" flooring.
quests the State Department ''to continue The application in this case had originally
its unrelenting efforts to protect the rights been questioned because the wpier of the
of American companies!' flooring deposited were not identical, but it
Although none of the pending bills aimed developed in the course of wrrupondence
at granting tax relief to authors was acted and a series of interviews that no two seg-
upon during the year, the Revenue Act of ments of the flooring can be identical since
1964 (Public Law 88-272) contained pro- there is no fixed design that is repeated
visions which would help to relieve some of throughout the goods. The patterns are
the author's tax burden. The act contains produced haphazardly as the result of vinyl
a provision enabling any taxpayer with a chips falling at random through a hopper,
widely fluctuating income to average 1 and neither the shape of the chips nor the
year's unusually large income over a period linear patterns are subject to control.
of 5 years, and eliminates the necevity for Thus, as set forth in the answer to the com-
recomputing the taxer of earlier yean. plaint filed on behalf of the Register, regis- .
8 REPORT OF THE REGISTER OF COPYRIDKTS, 19 6 4

tration has been ttfused on the ground that ties Corp., 223 F . Supp. 866 (S.D.N.Y.
the "design" does not constitute the "writ- 1963), granted a preliminary injunction
ing of an author." against the sale of dolls dressed in clothing
similar to that used by the plaintiff on its
Subject Matter of Copyright Protection "Tammy" dolls on grounds of unfair com-
petition, it ~efusedrecovery for copyright
~efcndantsin copyright infringement infringement on the ground that plaintiffs
actions involving axn~-~~ercial designs con- copyright extended only to the unclothed
tinued to raise issues of originality and doll, "judging from the description 6do]ly
copyrightability, usually with little success. in the claim as
For example, a textile fabric design em- The familiar problem of the copyright-
playing "Of the C1eo~atraera commercial labels, this time for
both in and dress" was furniture wax, came before the Ninth Cir-
original in John Wolf Textiles, Inc. v. cuit court of Appeals in Drop Dead Co.
Fabrics, Inc., 139 U.S.P.Q. 365 v. S. C . Johnson, lnc., 326 F . 2d 87 (1963),
P.D.N.Y. 19621, and in Loomskill, Inc. v. ,,,t. denied, 377 U.S, 907 ( 1964). In
Slifka, 223 SUPP.845 (S.D.N.Y. 1963) answer to defendant's argument that the
a f d per 330 F. Zd 952 (2d Cir* label was uncopyrightable because it was
9 the in largely textual and "used solely to laud the
fabric designs adapted from an "Audubon and instruct in its plaintiff
book of birds" on the:ground that "prrscnt- awed that it was not claiming separate
ing old material in a new plan or arrange- copyright in the instructions and ph-~,
ment is sufficient to lend copyrightability to or athe exclusive right to the use of ovals
the resulting work." On the other hand, or gold foil as such," but that iu
Judge in Manes FabriG '0. The coven only "the total embodiment of the
Acadia Co., 139 U.S.P.Q. 339 (S.D.N.Y. elements of its entire original
1960), noted that "the 'style' of plaintiff's label.m In holding for the on
fabric is apparently derived from illumi- grounds that "the liberal~ than the
nated medieval manuscripts and other lstric. mle of what canstitUtes cap*ht-
works ofart in the public domain, and it is able matter been followed in the ~i~~
therefore entitled to Iw broad protection the court upheld copyright in the
'
than if the style were wholly original with
it," and added that "the colon in the spec-
, t,particularly and pculiarly
bodying the numerous commonplace ele-
. trum have not been successfully removed menu contained in it," and ruled that
from the public The mpyright- . "jamswhich go beyond a meR hAmarL
ability of color schemes wpa also rejected in are copyrightable; if a label has
Clarion Textile Corp. v. Slifka, 223 F. , a it no longer is
Supp. 950 (S.D.N.Y. 1961). mere label.' "
In Remco Industries, Inc. v. Goldberger recurrent problem, that of the
DoUMfg. co-9 141 U.S.P.Q. 898 (E.D.N.Y. Was care-
copyrightabilityof trade
1964), the court granted a preliminary in-
fully analyzed in PIC Design COT#.v. Ster-

-
j"nction against infringement of copyright
in "a doll approximately five inches tall, ling Precin'on Corp., 231 F . Supp. 106
representing a male figure wearing a dark (S.D.N.Y. 1964). While upholding plain-
suit and exhibiting a 'mop, haircut tiffs copyrights on grounds that "the de-
ciated with the musical group known as gree of originality lecessary to sustain a
the Beatles." In contrast, although the copyri&t is very low," Judge Ryan
court in Ideal T o y Corp. v, Adanta Nouet that the figures and formulas in tables of
REPORT OF T H E REGISTER OF COPYRIGHTS, 1 9 6 4 9
specifications are facts in the public do- and purposes, his personality, a form of art
main; he also cast doubt on the copyright- expreaion, and his distinctive and valuable
ability of the tabular arrangement of the property."
figures and ruled against the-opyrightabil-
ity of the "format" or "visual impact" of Notice of copyright
the catalog. In Addison-Wesley ~ u b l k h -
The perennial problem of the statutory
ing Co. v. Brown, 223 F. Supp. 219
notice requirements continued to produce
(E.D.N.Y. 1963), the court upheld copy-
litigation during fiscal 1964, with decisions
right in the problems appearing in physics
exemplifying both the "substantial compli-
textbooks, including some taken from
ance" and the "strict construction" schools
earlier books, on the basis of "the concep-
of thought on the subject. Selvage notices
tion, organization and presentation of ma-
on textile fabrics were upheld in John Wolf
terial whether new or oldn; and the copy-
Textiles, Znc. v. Andris Fabrics, Znc., 139
rights in a rock and roll song and in a
U.S.P.Q. 365 (S.D.N.Y. 1962), Cortley
piano arrangement of it, even though
Fabrics Co. v. Slifkq 138 U.S.P.Q. 110
"trite" and "commonplace," were upheld
in Nom Music, Znc. v. Kaslin, 227 F. Supp. (S.D.N.Y.), a f d per curium, 317 F . 2d
922 (S.D.N.Y. 1964). 924 (2d Cir. 1963), and Loomskill, Znc.
Several cases during the year involved v. Slifka, 223 F. Supp. 845 (S.D.N.Y.
actions under State law for common law 1963), af'd per curiam, 330 F. 2d 952 (2d
or statutory copyright infringement. Cir. 1964). In the Cortley case, where
Three cases-Colvig v. KSFO, 140 the selvage notice was "engraved on the
U.S.P.Q. 680 (Cal. Dist. Ct. App. 1964) ; rollers and mechanically imprinted on each
Borden v. Andrews, 139 U.S.P.Q. 557 (Cal. and every repeat," Judge Levet ruled that
Super. Ct. 1963) ;and Land v. Jerry Lewis the defendant had failed to sustain its "bur-
Productions, Znc., 140 U.S.P.Q. 35 1 (Cal. den of proving that the notice of copyright
Super. Ct. 1964)-recognized that protec- could have been incorporated in the body
tion under California law is available for of the design." In Loomskill the question
"a particular combination of ideas (which was closer since the notice was added to
presupposes the expression thereof), or the selvage of the finished goods after it had
form in which the ideas are embodied," been printed, the design itself contained
and that ideas as such may be the subject some printed matter, and the plaintiff of-
of contract. A television game format was fered no evidence on the question. Judge
also held "tangible enough physical prop- Wyatt, with some misgivings, however, up-
erty of value in such concrete form" to held the notice because, he said: "Looking
allow recovery in New York on a theory of at the fabric design itself, it is difficult to
implied contract in Robbiw v. Frank see how the copyright notice could be put
Cooper Associates, 19 App. Div. 2d 242, in the relatively small boxes without de-
241 N.Y.S. 2d 259 (1st Dep't 1963). In stroying the effect."
A surprisingly strict attitude toward the
another case arising under New York law-
notice requirements was taken by the Sev-
CBS v. Documentaries Unlimited, 42 Misc.
enth Circuit Court of Appeals in O A
2d 723, 248 N.Y.S. 2d 809 (Sup. Ct. Business Publications, Znc. v. Davidson
1964)-a news announcer was granted Publishing Co., 334 F . 2d 432 (1964). I t
common law copyright protection not only invalidated a notice appearing under the
in literary material of his own composition masthead on page 3 of a newspaper on
but also in his "voice and style of talking," the ground that it was not "on the title
which the court regarded as "to all intents page" or "under the title heading," since
10 REPORT OF THE REQISTta OF C O P m H T 8 , 1964

"the purported masthead . . . canies only refused to rule upon the efFicacy of a
part of the registered title and no volume or foreign-language notice. I t also declined
number of issue." The work involved in to decide upon the ultimate validity of the
Neal v. Thomas Organ Co., 325 F. 2d Copyright Office regulation requiring a
978 (9th Cir. 1963), cert. denied, 379 U.S. notice of copyright on copies of a work as
828 ( 1964), was an instruction manual for first published abroad, deciding only that
playing the organ; the title appeared on the the regulation is valid and controlling
front cover, the rcversc of the cover was where the author-proprietor is an Ameri-
blank, and the notice appeared on the can citizen.
next (or third) page. The court, which
had a great deal of difficulty with this Publication
question, said it recognized that "there is
There were several decisions during the
little room here for 'liberal interpretation'
year involving the troubled question of
or for a consideration of 'Congressional in-
what constitutes a "publication" that will
tent,' " and that strict compliance would
destroy common law rights in a work.
have rtquiml "placing the notice of copy-
Possibly the most significant waa King v.
right on the cover or on the fourth page,
Mister Maestro, Inc., 224 F. Supp. 101
if the work is a musical composition, or on
(S.D.N.Y. 1963), which involved the right
the second page, if the work is a book."
of Martin Luther King to enjoin the un-
The court held that the third page can-
authorized distribution of phonopph
not be considered the "title page*' since it
records of his famous speech "I Have a
does not bear the title, but it upheld the
Dream*' as delivered during the Freedom
notice, limiting ita opinion "to the peculiar
March in Washington. The court decided
circumstances of this c a e in which the
that neither the delivery of the address
title appears only on the cover and in which
before a vast public audience and over
the cover is of a harder and less malleable
radio and television nor the distribution
material than the leans within."
to the press of copies of the advance text of
An important and previously unresolved
the address without copyright notice con-
question was dealt with in Nom Music,
stituted a "general publication" that de+
Inc. v. Kozlin, 227 F. Supp. 922 (S.D.N.Y.
stroyed the common law copyright S i i -
1964) : Can the assignee of copyright in an
larly, the court in CBT v. Documentatjes,
unpublished work use his name in the copy-
Unlimited, 248 N.Y.S. 2d 809 (Sup. Ct.
right notice when the work is published,
without fint recording his assignment? 1964), referred to the ''well-settled rule"
The court ruled that the use of the that "public performance of a work, such as
delivery of a speech, singing of a song, or
signce's name in this situation is permissible,
and that section 32 of the statute applies reading of a script, whether given in public
or over the radio or television, is not such
only where the work had previously been
a general publication as constitutes a dedi-
copyrighted in published form.
cation to the public or places it in the
Ross Products, Inc. v. New York Mer-
public domain, with consequent loss of
chandise Co., 141 U.S.P.Q. 652 (S.D.N.Y.
copyright."
1964)' held that the notice requirements The court in Nom Music, Inc. v. Kaslin,
of neither the statute nor the Universal 227 F.Supp. 922 (S.D.N.Y. 1964), without
Copyright Convention were satisfied by the refening to the line of cases leading to the
word "Copyright" accompanied by a num- .
opposite conclusion, stated : "It is clear . .
ber refemng to a Japanese patent, appear- that a phonograph record is not a copy of a
ing on a hang-tag, although the court musical composition and n a d not contain
a copyright nolioe, narisaralcdtbetbe tgcwxldbkationabrwad, an answer d l c h might
a 'pubticationsof the underlying w e have cawed the Co-t Mficc to refect
tion,"' A thoreugh anrliyrb ofthe crsc law h'U appEcah,'' and stated that " m d y
and other 8urhwitias inwdving publication
and the p m t l o n ofarchikcturd ptnr is
contalnad in the @don of the hhachu-
..
this unapldned of a matdd
fact. castll doubt on the M t y of tho
qht~atfmiW..
wts Supnrna CoUFt in &!gat H. Wood
Arroeirrtar, lac. v. Shw* 197 N.& 2d 886 -
d 4Ownanhip 'If-fit
( 19%). It d u d a d that the fiquind
filing of plans with a WMhg dqartmcnt A p d t e m that the Gpydght umcc has
~ n c u u a t e dmon than once kl d
or other govemrncat otiia u a "limited"
rather than a "gcnurPP' pddhdm, and
e x d n i n g was "molved in Hrpurmd v.
that sinca a structure is the nrult of ptanr Rabbfnr Music Cdtf., 142 W S P a 53
but not a mpy Of theq the mutm& (N.Y, Sup. Ct. 1%). This la the m=
mdopeningdrbuildiagionotrpublica- calicd "cut-ht a &under whicb
ande~tmIndcrolperZarmerlslncwc
tinnofdrcplulr.
NXtly~tedonthea3pi~lofatongd
intderoecrritrrdthcCa*tm7m4lr
ontoftbawth0l.a. Althougatttsrrwrt
Thcnmrrr*rcorraiiatsmrtSngb in the H @ col# illgreed that "Pwl
ciciblu dealing with copyright regismdoll ~ ~ ~ n s a ~ p a r o t d t h e m u d e
and ib &acts. Tfre now quita end as am-authorofthe lgrrtcrhadao
w c l l ~ ~ . t 3 1 p t a c a r t i f i c n t e o frighta
~ whPltautr" 'M tbe &mew4 em#?# it
tratkm conktitutu pkim facie rrridclrca of F k Z d to p t s u m a r p judgment ua the
the vatilrtsty of tbe coWnight it& w m- gmund chat, because payment ofmpfrta
iberuted in Addirolt- Wbs&y Pltb&hing CO. continued a f e m d ,plaintiff may be
v. Brown, 223 F. Supp. 219 (E.D.N.Y. c . e m to deay wbi-'~~ auttlodp
f963), Hedmtan Pzodo~tsCw.v. Tap- Thc quation in T. A Hams Co. v.
Rite h d w h &#., 228 F. Supp. 6% &cu, 226 F.Supp. 337 (S.D.N.Y. 1964),
(D.N.J. t964), and Drop Dud Co. Y. S. C. was w h d w 3 in a dirpute ovet a w d p
JoAnso~,326 F.2d 87 f 9th Cir. 1963), curl. af a renewal copyright,any "Gd-
deaied, 377 US. W7 (1%). The court (btis, "any act which urns, ~~ or
in the Drop Dsod cam, in thb conmcc&n, threatens the aqq&ghbn) hrd taken piece
rejected d d e n b t ' ~a q p m n b thot u t k &at would jurtify Fcdcrai jurisdiction.
Copyright Qfiia is a mere depdtory;' and Tbc held thot neither a State cwrt
that "there u no d k m t h in the CopyAght actbn to establish ownenh'ap nor thc and-
Office,psthGnirinthcPatattoitieb,art~ ing of le-n clatn'mg mpdtiu amrtituted
what ir gbpyrigbtabIeand what is not.* infringement. It also held thot it war Mt
In ROBProductJ, I*. v. N w Ywk Me* infringement for defendant to makt an as-
chdndite Co., 141 U.S.P.Q. 652 (S.D, ~maitofhirr~llOWBjclahattorecoFd
N.Y. 19641, a preliminsay injunction wm the asripmmt in the Copjdgbt OfffctCd s
refused on two g~arndqone of wbich was rpitc plaintiffr agummt that this act
the posi'bility of "fraud and intart to dt- placed a cloud upon its title; the court
ceive and misrepresent'' by the o m i d of aMtd that the New YorL Supreme Coutt
.
"certain rc?lmmt informath . , in the "has jurirdion of thc qucatim of titla
cgYyright ngistration form!' The court and, if the fa& warrant it, p ~ w o rto com-
noted that "ploirr6@did not till in any an- pel E l h to execute an assig~mcatoC bir
swer to tho qucsdcm concerning possible interest and a canmirrtion of tbc assign-
-
12 REPORT OF THE REOrSTER OF COPYEUOHTS, 1 9 6 4
ment filed in the Copyright Office." A fa- Infringement and the
miliar principle that "a license from a Scope of Copyright Protection
holder of a copyright immunizes the li- Undoubtedly, the most entertaining and
censee from liability to the other co-holder well-publicized decision of the year was
for copyright infringement" was confirmed that of the Second Circuit Court of Appeals
in McKay v. CBS, 324 F. 2d 762 (2d Cir. in Berlin v. E. C. Publications, Znc., 329 F.
1963), and there is an implication in Ad- 2d 541 ( 1964), cert. denied, 379 U.S. 822
dison-Wesley Publthing Co. v. Brown, 223 (1964), which held that publication in
F. Supp. 219 (E.D.N.Y. 1963), that text- Mad Maguzine of "satiric parody lyrics" of
books written on special commission arc copyrighted songs was fair use rather than
not "works made for hire" within the infringement since the p a d i e s had
meaning of the present copyright statute. "neither the intent nor the effect of ful-
filling the demand for the originat" and
International Copyright Protection since there was no substantial appropria-
Two cases during the year dealt with the tion. Another musical infringement case,
protection and requirements of the U.S. Nom Music, Znc. v. Kaslin, 227 F. Supp.
copyright law with respect to works fint 922 (S.D.N.Y. I%), contains a painstak-
ing and interesting comparison of the music
published abroad. In Ross Products, Znc.
and lyrics of two rock-and-roll songs.
v. New York Merchandise Co., 141
The special problems of pmof arising in
U.S.P.Q. 652 (S.D.N.Y. 1964), the court cases involving infringement of copyrighted
held that, under the particular circum- catalons
- - were dealt with in Hedeman Prod-
stances, the placing of copies of a work on ucts Corp. v. Tap-Rite Products Corp., 228
public sale in Japan constituted a general F. Supp. 630 (D.N.J. 1964), and PIC De-
publication that put the work in the public sign Corp. v. Sterling Precision Corp., 231
domain in the United States. The ques- F. Supp. 106 (S.D.N.Y. 1964). I n the
tion in Beechwood Music Corp. v. Vee Jay Hedeman case the defendant argued that
Rezords, Znc., 226 F. Supp. 8 (S.D.N.Y.) , copying must be ''material and substantial"
afd per curium, 328 F. 2d 728 (2d Cir. in order to constitute an infringement and
1964), was whether the authorized manu- that, since defendant had copied less than
facture and sale of records in a foreign 1 percent of the total page area of plain-
country required the filing of a notice of tiffs catalog, no infringement had been
use in the Copyri@- Office in o r d u to be established. The court held, however,
that "the 'material and substantial' test is
entitled to royalties for the manufacture
not . . . to be applied to plaintiffs entire
and sale of records in the United States.
catalog but to each component part [i.e.,
The lower court held that there is "no each illustration] which has been in-
support for the contention that the Copy- fringed!' The court in the PIC case noted
right Act itself, and j 1 (e) in particular, that copyright in a catalog protects the
has the extraterritorial effect claimed for illustrationsbut not the p d u c t s illustrated,
it," and the Court of Appeals agreed that it but that "sufficient latitude exists in the
would be "quite unreasonable to construe draftsman's art of illustration to make sus-
the condition of the compulsory license pect any drawing exactly reproducing one
clause . . . as being satisfied by the manu- in a prior circulzted catalog!' While ac-
facture of records in a foreign country, at knowledging that it would ordinarily be
least when these have not been brought impossible to prove infringement of a table
into the United States!' of figures in the public domain, the court
REPORT OF THE REUISTER OF COPYR1(

held that, where "the same errors (or membership club," not open to the general
'printer's traps') appear in an earlier and public, was held to be a "public perform-
later publication, it is fair and reasonable ance for profity' on grounds that "there
. . . to infercopying," were no meaningful qualifications for
Three fabric design decisions reported membership" and that "the membership
during the year-Manes Fabric Co. V. The served no function in relation to the or-
Acadia Co., 139 U.S.P.Q. 339 (S.D.N.Y. ganization or operation of the club."
1960)' Clarion Textile Corp. V. Slifka, 223 Chappell & Co. v. Middletown Farmers
F. Supp. 950 (S.D.N.Y. 1961)' and Con- Market @ Auction Co., 334 F. 2d 303 (3d
dotti, Znc. v. Slifka, 223 F. Supp. 412 (S.D. Cir. 1964), dealt with performances from
N.Y. 1963)-a11 involved cases in which recordings of copyrighted music played in
there were strong similarities between the central office of a large merchandise
plaintiff's and defendant's designs, the mart and transmitted over a system of 58
color schemes were the same, and a degree loudspeakers located throughout the de-
of copying could be inferred. In each in- fendant's premises and parking lot. The
stance, however, the court ruled in favor Court of Appeals ruled this an infringe-
of the defendant on the ground that he ment, holding that the ownership of law-
had "not passed the bounds of idea appro- fully made records does not carry with it
priation." As stated by the court in the the right to perform them publicly for
Manes case: "There is an important dif- profit, and that, whether or not the play-
ference between a slavish copy which alters ing of the records was connected with their
a few details and an independent work ex- sales promotion, their performance was
ecuted in similar colors and in a similar an infringement since "it was commercially
style." beneficial to the Mart to have an attrac-
A novel question concerning the extent tive shopping atmosphere."
of protection under a copyright arose in The widespread problem of "fake-books"
Addison-Wesley Publishing Co. v. Brown, (unauthorized compilations of the melody
223 F. Supp. 219 (E.D.N.Y. 1963) : lines of hundreds of popular songs)
whether publication of answers to prob- reached the courts in Shapiro, Bernstein
lems published in physics textbooks con- B Co. v. Bleeker, 224 F. Supp. 595 (S.D.
stituted infringement rather than fair use. Cal. 1963), which held a retail vendor
The court suggested that the conversion of liable on grounds that the copyright law
plaintiffs verbalisms into symbols, sign gives "not only the exclusive right to copy,
conventions, equations, and graphical rep- but also to vend the copyrighted work."
resentations might actually be considered Practical problems of procedure in in-
an unauthorized "translation," and held fringement actions were involved in Elec-
that their publication constituted an in- tronic Publishing Co. v. Zalytron Tube
fringement since the solutions were specif- Corp., 226 F. Supp. 760 (S.D.N.Y. 1964),
ically keyed in with the questions, included and Leo Feist, Znc. v. Debmar Publishing
studied paraphrases, and had no independ- Co., 232 F. Supp. 623 (E.D. Pa. 1964).
ent viability. The Electronic case involved a catalog
Two cases during the year dealt with the which plaintiff had prepared for a corpora-
important question of what constitutes a tion not a party to the action. Defendants
"public performance for profit" of a copy- moved to dismiss for failure to join an in-
righted musical composition. In Lerner dispensable party, but the court denied the
v. Schectman, 228 F. Supp. 354 (D. Minn. motion. The Feist case involved the al-
1964), the performrncc in "a bona ficle leged infri-ent of "In a Little Spanish
14 REPORT OF THE REGISTER OF COPYRIOHTS, 1 9 6 4
Town" by "Why," a question previously Products Corp., 228 F. Supp. 630 (D.N.J.
litigated in England by the same parties. 1964), and in Shapiro, Bernstein & Co. v.
The defendants contended that the matter Bleeker, 140 U.S.P.Q. 111 (S.D. Gal.
was res judicata since the English court 1963). In the H e d ~ m a ncase the court
had found that there had been no copying. held that "tach copying by defendant of an
The court ruled for defendants, holding illustration, which had been separately pre-
that although the principle of res judicata pared by plaintiff, was a separate infringe-
was not applicable because the Engiish and ment." In contrast, where the defendant's
American suits were brought under differ- "fake-book" in the Shapiro, Bernstein case
ent statutes and for different .acts of in- contained 1,000 songs, 12 of which were
fringement, the doctrine of collateral es- copyrighted by the plaintiff,the court con-
toppel would apply to a fact litigated in a sidered it "ob~ious'~that a recovery of
foreign court. either $250,000 or $3,000 would be unjust
and required proof of actual damages and
Remedies for Infringement profits.
Mailer v. R K O Teleradio Pictures, Znc.,
One of the most unsettled in the
332 F. 2d 747 (2d Cir. 1964),was an action
copyright law is that dealing with the statu-
by Norman Maiier for infringement of
tory remedies for copyright infringement:
copyright in The Naked and the Dead,
damages, profits, injunctions, attorneys'
based on a clause in his contract with the
fees, etc. One of the most important de-
defendant film company under which mo-
cisions on these questions in recent years
tion picture rights were to revert to him if
was rendered by the Second Circuit Court
production of the film were not completed
of Appeals in Peter Pan Fabrics, Znc. v.
within a specified period. The Court of
Jobela Fabrics, Inc., 329 F . 2d 194 (1964),
Appeals held that the picture was sub-
which held that recovery under the copy-
stantially compkted within the time pro-
right law is " 'cumulative,' encompassing
vided and upheld the award against Mailer
both net profits of the infringer and dam-
of $5,000 as counsel fees on the p u n d that
ages of the copyright holder," rather than
"this sort of litigiousness cannot be con-
" 'alternative,' allowing either profits or
doned." Universd Pictures Co. v. Schaef-
damages, whichever is greater." More-
fer, .l40 U.S.P.Q. 17 (E.D. Pa. 1963), was
over, even though only actual profits had
one of the rare reported decisions dealing
been proved, the court held that a higher
with the seizure and impounding provisions
award under the statutory damages pro-
of the law; the court held that defendant
vision was permissible. In Fruit of the
was guilty of civil contempt when he con-
Loom, Inc. V. Andris Fabrics, Inc., 227 F.
cealed or withheld from the Federal mar-
Supp. 977 (S.D.N.Y. 1963), an award of shal copies covered by a seizure order and
actual damages based on estimated loss of that fines for contempt a n payabk to
potential sales of 75,000 yards was upheld, plaintiffs. In the "Beatle doll" case,
even though plaintiffs unsold inventory Remco Industries, Inc. v. Coldberger Doll
consisted of less than 10,000 yards, on the Mfg. Co., 141 U.S.P.Q. 898 (E.D.N.Y.
ground that "defendant's actions destroyed 1964), the court granted a preliminary in-
a substantial and promising market." junction because "the promotional nature
Tbt confused question of how many in- 'of the copyrighted dolls has a life span
fringementathere are in a case for purpwis which may be extraordinarily short," but
of computing statutory damages arose in required plaintiff to post security of
Nedeman Products Cork. v. Tap-Rite $25,000.
REPORT OF THE REGISTER OF COPYR

Unfair Competition and Copyright tion of the very item licensed .. ., the use
of the identical product for the profit of
On March 9, 1964, the Supreme Court
another."
of the United States handed down two d a
Another question involves the status of
cisions, Sears, Roebuck & Co. v. Stiffel Co.,
unpublished works: Are the States now pre-
376 U.S. 225, and Compco Corp. v. Day-
empted from protecting them if they come
Brite Lighting, Inc., 376 U.S. 234, which
within the subject matter of copyright?
promise to have a fundamental effect on
The decision in CBS v. Documentaries Un-
the future of the copyright law and, indeed,
limited, 248 N.Y.S. 2d 809 (Sup. Ct. 1964),
of the entire field of intellectual and in-'
suggests that the preemption doctrine of the
dustrial property. Holding, in the words
Sears and Compco decisions doea not ex-
of Justice Black, "that when an article is
tend to unpublished works, and the decision
unprotected by a patent or a copyright,
of the Massachusetts Supreme Court, in
state law may not forbid others to copy that
Edgar H. Wood Associates, Inc. v. Skene,
article," the decisions appear to restrict the
197 N.E. 2d 886 ( 1964), contains a specific
scope of protection under theories of unfair
holding to that effect. A far more difficult
competition and common law copyright,
question is whether the States may continue
and to lend greater importance to statutory
to offer the equivalent of copyright protec-
patent and copyright law.
tion to published works (such as recorded
Like many another landmark case, Sears
performances and industrial designs) that
and Cornpco succeeded in raising more
may be "writings" within the Constitution
questions than they settled. It seemed
but do not come within the scope of the
clear from the decisions, for example, that
present copyright statute. In Capitol Rec-
if a work comes within the subject matter
ords, Inc. v. Greatest Records, Inc., 142
of the copyright statute and has been pub-
U.S.P.Q. 109 (1964), the New York Su-
lished, the States are preempted from giv-
preme Court followed its "appropriation-
ing it protection equivalent to copyright.
copying" distinction in the earlier Flamingo
This conclusion is supported by the deci-
case and held that the "law of this jurisdic-
sions in Duplex Straw Dispenser Co. v.
tion is still '. . . that, where the originator
Harold Leonard 07 Co., 229 F. Supp. 401
(S.D.Cal. 1964) ;Mmtro Plastics Corp. v. . . . of records of perfonnances by musical
artists puts those records on public sale, his
Emenee Indwtries, Inc., 141 U.S.P.Q. 31 1
act does not constitute a dedication of the
(N.Y. Sup. Ct. 1964) ;and Wolf and Vins,
right to copy and sell the records.' " The
Inc. v. Pioneer Display Fixture Co., 142
ultimate answers to these and other funda-
U.S.P.Q. 112 (N.Y. Sup. Ct. 1964). The
mental quationefor example, whether
New York Supreme Court, however, in
the State can decide what is published and
Flamingo Teletflm Sales, Inc. v. United
what is unpublished, and whether the Fed-
Artists Corp., 141 U.S.P.Q. 461 (1964),
eral Government,itself can give protection
seems to reach a different result. It held,
equivalent to copyright under trademark or
in an action involving the unauthorized ex-
other statutes-main for the courts to
ploitation, distribution, and exhibition of
evolve in the months and years to come.
a television program incorporating a "sub-
stantial segment" of plaintiffs uncopy- Antitnrst Action
righted motion picture, that the rule of
Sears and Compco is limited to cases in- The ASUP consent decree was judicially
volving "copying," and is "to be distin- interpreted in United States v. American
guished from the instant case where the Society of Composers, Authors and Pub-
complaint, essentially, is of an appropria- lishers, 331 F. 2d 117 (2d Cir. 1964), an
16 REPORT OF T H E REGISTER OF COPYRIGHTS, 1 9 6 4

appeal from a judgment denying petitions and Congo (Brazzaville) filed notification
by local television stations for the fixing of that it was also making its accession sub-
new "blanket license" and "per program" ject to reservations.
fees. The court affirmed the judgment on Additional adherences to the Universal
the ground that the consent decree doe not Copyright Convention by Greece, Peru,
require the granting of the kinds of licenses and New Zealand brought the membership
requested. to a total of 48 countries, and Mexico rati-
fied the Buenos Aires Copyright Conven-
tion of 1910. During the year the Univer-
International Developments sal Copyright Convention was made appli-
cable to the Falkland Islands, Kenya, St.
The international protection of intellec- Helena, and Seychelles. Kenya became
tual property passed another milestone in independent, howeve.r, on December 12,
1964 with the coming into force of the 1963, and Zanzibar, to which the United
Neighboring Rights Convention (the In- Kingdom previously had declared the
ternational Convention for the Protection Universal Copyright Convention applied,
of Performers, Producers of Phonograms, gained independence on December 10,
and Broadcasting Organizations), signed at 1963. North Borneo and Sarawak, to
Rome on October 26, 1961. In accord- which the convention had also been de-
ance with its terms, the convention came clared applicable, are now members of the
into effect on May 18, 1964,3 months after new state of Malaysia, as is Singapore, with
which the United States had copyright re-
the sixth country had deposited its instru-
lations by virtue of a proclamation. The
ment of ratification, acceptance, or acces-
problems arising from the lack of copyright
sion. Three countries-Congo (Brazza- relations between the United States and
ville), Sweden, and Niger-had pdously the many newly formed countries that have
deposited their instruments, and deposits been created from former dependencies
were made by the United Kingdom on OC- continue to increase; the table below at-
tober 30, 1963, Ecuador on December 19, tempts to show all of the independent
1963, and Mexico on February 17, 1964. countries of the world and the basis of
Later in the year, Czechoslovakia acceded their copyright relations, if any, with the
to the convention subject to reservations, United States.