distance telephone by a publishers' representative in New York, a lawyer, whom I have known for years. This 3-year limitation should be taken out. There is now a 3-year limitation on copyright matters which did not exist in the original act. This should not be so.

There should also be an alternative forum. The Court of Claims is not a court in the true sense. It has no juries; appeals from its decisions are in the form of certiorari to the Supreme Court, and very few are granted to individuals.

;

I should like to point out and emphasize my written remarks here. That if this committee will check the certiorari book of the Court of Claims, they will see that individuals are almost never given a certiorari. Á large number of cases filed in the Court of Claims are dismissed without a trial by that court on what is known as a motion for summary judgment made by the Department of Justice. Thus the Court of Claims is a little supreme court in itself, with power to decide cases without granting discovery to private parties, or to permit them to put on their full cases with expert witnesses, and so forth. The only real literary property court in this country, in so far as I am able to determine from the publications and the books put out by Mr. Fisher's office is the southern district of New York, where the publishing industry is located. Here the courts are not awed by publishers or governmental units, nor do advertising agencies appear to get favored treatment. The largest publisher in the land, Hearst loses there again and again. It seems to me this bill should make an alternative forum available in any district court, with a clear right of appeal, not only to the circuit court of appeals, but an absolute right of appeal to the Supreme Court. We should amend the certiorari rights because of the thing at stake.

I have here a case history in this field, which I handled myself, and I should like to briefly read a prepared statement.

The author in this case history created a literary feature, using as a base the press releases of the Defense Department on military citations, and added to this literary conception art work and sales effort section 7 of the Copyright Act is a copyright for "compilations of abridgments, adaptations, arrangements, dramatizations, translations. or other versions in the public domain," which "shall be regarded as new work subject to copyright." That is, taken out of public domain, apply your thought and effort to it, change it somewhat, and get a copyright out of it.

The author, beginning with a mimeographed citation, beginning with this press release, developed something which appeared in the

newspapers.

I pause just one moment to indicate that. Here is a copy of the Pittsburgh Press. I do not want to leave this, but I do want to show it. This is a boy from Texas. I began with something that looked like a mimeograph citation, and I ended up with a funnies strip.

Now, I believe, Mr. Chairman, that anybody who saw that and saw the mimeographed citation would agree that Mike Arens and I— Mike was on the staff of Snow White before he came with me-had created something.

This series became a true story about heroes, and it ran for a number of years in the Boston Globe, the Pittsburgh Press, the Seattle Times, and other papers, and the author sought new outlets through the Government and through advertising agencies.

I hope the chairman will permit me to speak in the third person here.

The author produced for the Army the "Outstanding Soldier" series, which ran in 500 papers for a week for 13 weeks, in 1948. One of the author's stories was used by the Naval Reserve and sent out by the Navy to 11,000 papers; his story of the Tokyo raid was sent out by the Air Force to 1,100 papers, syndicates, and so forth on the fifth anniversary of Tokyo raid.

The literary series appeared in "Editor and Publisher Yearbook of Syndicate Directory" as the only literary feature by that title for a number of years. About 2 billion impressions on paper were printed of the feature by this title prior to suit by this author against the Government. A number of copyrights have been issued to him. by the Government for his feature, by Mr. Fisher's office. As a matter of fact, the author sued the Government before. I let the Government borrow a story of the Tokyo raid featuring General Doolittle. They sent it down, sat it up where General Doolittle was at the Deauville Stratford Hotel in Miami on the fifth reunion of Tokyo raid. The condition was that I would get the original back. I never got it back. They said, file a claim. I filed a claim. A Colonel Crowe sent me a letter and said that because the original was lost in Florida and not in Washington, they could not pay me. I filed a claim for $11,500. I eventually settled that for $450 to get it off the books. I had to pay Mike to draw it. Certainly the Government knew that I existed.

Now, the author made the rounds of the advertising agencies with his feature, and also made various suggestions for its use, for private clients and the Government. The State Department, which now asks for the right to use copyrighted material, had me write a presentation. I presented this as a way of showing that American boys were willing to die for the flag, and I thought this was a good program for press relations. They did not take it at that time.

Now, in 1950, when the Korean war broke out, I was working for the Senate of the United States as a staff member of the Banking and Currency Subcommittee, under Senator Fulbright. At this time, one of the advertising agencies went to the Government with the idea of producing a series to sell war bonds.

There is an exhibit here, Mr. Chairman, which shows that this agency, prior to this, had had submitted by me this whole series. I argued before the Court of Claims that I had come to the Treasury Department with this very idea. The Treasury Department did not take it from me; Treasury dealt with the agency. The Court of Claims would not let me interrogate any of the officials there.

Now, this agency then produced as a free mat service to all of the publications a Medal of Honor series by the same title, with the same center character, the same general theme, the same plot. The primary difference was that they took the newspaper style presentation and turned into a magazine presentation. In other words, they had fewer cartoons. They even used the same symbols.

I argued this before the Court of Claims, but in their decision, they say that they have no jurisdiction because of the fact that this is copyrighted. Thus, the publishers of the country were faced with a choice between a free product which was sponsored by the Government-they did not even have to pay for the mat-or a professional

job for which they had to pay. During Korea, even those newspapers which previously had used my service no longer used it. The author then sued the Government in the U.S. Court of Claims, asking $12 million. This is with reference to the question put forward, Mr. Chairman, by you as to how much money would be involved. Upon learning by the search of the vastness of the program, he added $10 million more. But now the author was asking $1112 million for the use of a literary advertising idea supposedly controlled by a copyright. This was enough in itself to make the claim ridiculous, except for the fact that even $1112 million on a reasonable damage basis would not have compensated the author. You had $5 million in mats alone. Then you had, according to the exhibits I have given to you, Mr. Chairman, radio; there was television, there was a billboard service. In other words, the Government used this program in a saturation way and carried the series.

Now, the Government received in return $150 million in free advertising. These are reports of the Advertising Council, and they took in $50 billion from the sale of bonds through the use of this program.

The Court of Claims threw the case out of court, on a motion by the Justice Department, stating that it had no jurisdiction-this among other things. Prior to hearing this motion, the Court of Claims denied to the author the normal discovery proceedings. It also refused the author the right to interrogate, as in a normal proceeding, the officials of the Treasury Department who worked in this field, said that I might not ask them, did you or did you not see me in your office; did you or did you not tell me to make a presentation to you; did you or did you not tell me that if you used this idea, I would be paid? The Court of Claims refused to let me do this, apparently because they knew what their decision was going to be.

The author then took the case to the Supreme Court. There were approximately 80 pounds of paper here which had to be reproduced, and I simply did not have the money to pay for the printing of it, so I had to take this case to the Supreme Court in forma pauperis. So the Supreme Court refused to hear the case and I was out of court. Having gone through the judicial branch, I now looked for the legislative remedy, and I went to a U.S. Senator for a private bill. This Senator eventually told me that he was not a member of this committee, that I should find a member of this committee, that his efforts would be ineffectual, and furthermore, he had checked with the Budget Bureau, which apparently is an executive agency, and they would not approve the payment, as there is no legal basis for approving the payment. This means that the executive, which I fought over in the Court of Claims, is sitting in judgment, now having won the case, on whether the legislature should pay me through a private bill. I have a private bill which I am going to submit at the close of this, Mr. Chairman, and ask that this committee sponsor this bill and place on it any figure that it wants. I am merely seeking justice in this

case.

At today's rates, the cost of preparing the plates, and promoting the feature, which is the investment of the author in his enterprise would be about $75,000. This is apart from the loss of reputation, the necessity for finding a new occupation-which I did; I became a lawyer. I am a practicing lawyer now.

In the interests of justice, I believe that this committee should recommend a private bill, and I shall submit the proper exhibits.

As to experience of foreign nations with this problem, I have touched on this. In the exhibits which I have given you, Mr. Chairman, there are some from foreign countries. As part of the preparation of the case for the Supreme Court, a circular letter was addressed to all the Embassies. This letter appears with replies in the case as presented to the Supreme Court. Four nations-Switzerland, Finland, China, and Japan-have already provided relief in such cases. In most nations, Mr. Chairman, probably because the sovereign has traditionally been the patron of the arts, the notion that an author would have to sue his sovereign to be paid was so novel that they had never even heard of it. In no country was there any case in a legal sense which the Embassy could show that there was a litigation between an author and a government on the subject.

Mr. Chairman, prior to the opening of this session, I discussed with one gentleman here just what the Government wanted, and they said that they wanted the right to duplicate for internal use 8 or 10 copies without being sued. If this is what the Government wants, Mr. Chairman, all they have to do is say it. The Japanese system is just exactly that.

If the material is used for internal use, they do not have to pay the individual. As a matter of conscience for Uncle Sam, the individual should be paid. He may need the money, and with an $80 billion budget, certainly $15 or $20 or a few hundred dollars is a worthwhile token.

In conclusion, Mr. Chairman, I wish to thank this committee and Senator O'Mahoney for calling me as a witness. Legislation is definitely needed to give brain workers in nonpatent fields a clear right to the fruits of their labor as against the Government. That right should be a full right, and not a partial right which takes away more than it gives. The committee should keep in mind that the person sought to be protected, in the minds of the framers of the Constitution, was not the American Book Publishers Association, not the owner of the press, not the seller of the literary product, but the creative personality, Mr. Chairman, whose intellectual output is the center of many industries and the dynamo which sets them into motion. This is a personality, Mr. Chairman, which, through the ages, has had a history of impecuniousness, and which needs all the protection the sovereign can possibly give.

I have as an appendage to these remarks, Mr. Chairman, an act in which I incorporated another bill which I drew up for myself and certain members of the National Press Club, who participated with me in the petition which I believe made these hearings possible. That is the extent of my remarks, Mr. Chairman.

Senator HART. They will be received and, where appropriate, made a part of the record, and where more appropriate, a part of the files of the committee.

(The complete statement of Mr. Curtis is as follows:)

STATEMENT OF ARTHUR S. CURTIS, ATTORNEY AND AUTHOR, A MEMBER OF THE BAR OF THE SUPREME COURT OF THE UNITED STATES

May I thank this committee for the opportunity to present my views of H.R. 4059, which deals with rights of copyright holders against the United States.

Particularly, I wish to thank Senator O'Mahoney and go on record as saying that in my opinion he is a great American whose work on behalf of authors is arduous and sincere.

Freedom of the press at this moment means that the Government is free to take any product of the press, and even unpublished works of authors, without paying anything to anyone. This is clearly the law set forth by the U.S. Court of Claims in 200-57, a case which I took to the Supreme Court without success. An American Shakespeare or Beethoven could starve in the streets while Uncle Sam distributed his work to every person in the whole wide world under the present law, as the courts construe it. The Constitution says that a copyright holder may get an exclusive right, the Copyright Act gives an exclusive right, but the courts say that exclusive does not apply to the Government.

I have prepared an outline of proposed statements and exhibits, including a case history of a recent litigation against the Government. In that case, Uncle Sam used a program which netted $50 billion and the author got nothing—had to take the case through the last stage, before the Supreme Court, in forma pauperis because of the costs involved. Also, I have a bill for the relief of the author in that case which I would like to present to this committee and ask that this be given favorable consideration.

The outline is as follows:

1. Exhibit No. 1, letter to Senator O'Mahoney on H.R. 8419, predecessor to the present bill; exhibit No. 1A, petition for public hearings.

2. Exhibit No. 2, letter to Senator O'Mahoney on H.R. 4059, setting forth 10 weaknesses to the present bill.

3. Exhibit No. 3, case history of a litigation against the United States in a literary matter

(a) Decision of the U.S. Court of Claims in 200-57, stating that there is no right of action against the United States.

(b) Petition for certiorari, response by the Justice Department for the United States; petition for rehearing:

1. Exhibits showing experience of foreign nations with this problem.

(c) Presentation of the case to a U.S. Senator:

1. Letter outlining the case, plus exhibits.

2. Reply by the U.S. Senator.

(d) Private bill for consideration of this committee.

4. Alternative bill incorporating suggestions of this witness:

1. The scope of the present bill is too narrow.

2. The word "Hereafter" (p. 1, line 7), whitewashes all takings of literary property up to the date of passage of the bill, leaving the claimants empty handed.

3. The "exclusive" remedy against the United States (p. 2, lines 2-4) is an immunity clause for the real culprit who takes the literary property, while saddling Uncle Sam with the load of paying for what was done. The author loses his right to sue the individual who has done the wrong, and is required by the bill to square off against the biggest law office in the world, the Justice Department. The real culprit can now take a seat on the sidelines and enjoy the fight.

4. Clause (c), page 3, lines 17 and 18, is clearly unconstitutional as contrary to the fifth amendment. Congress does not have power to give to any agency of Government, not even the State Department, the right to take property overseas without liability for payment by the United States.

5. Because of the immunity from suit in page 2, lines 2-4, this bill is a free hunting license to the Advertising Council to use literary property even over the objection of the copyright holders, as well as to raid the Treasury of the United States by taking some wornout item from a "pal" agency and requiring the United States to pay for same. Because of the vastness of the Federal operation, one agency could put a million or so of taxpayer money into the pocket of a "pal."

This committee should take judicial notice that the members of the Advertising Council are advertising agencies whose clients are now under fire for misleading advertising, if we are to believe Mr. Earl Kintner, Chairman of the Federal Trade Commission. Misleading advertising is one form of dishonesty. This bill makes possible other forms of it.

6. The 3-year statute of limitation favors thievery in quiet ways at the expense of honest authors, composers, artists.