M. Witmark & Sons v. Fred Fisher Music Co.

Bеfore HAND, AUGUSTUS N. CLARK, FRANK, Judges. Circuit CLARK, Judge. Circuit presented with a statutory apparent- construction which has before, ly general arisen .though never statutory provision has existed for over a years. Simply stated, problem hundred copyright or not a is whether assign holder may expectancy the renewal arises under 17 U.S.C.A. 23 at the § expiration original twenty-eight year copyright grant. The district court upheld validity assignment. Penney R. States, H. Stearns Co. v. United 130 A.L.R. 1229. cf. State of Wisconsin v. J. C. threatened er Fisher Music Co.1 When with a accordance F.Supp. inwas 72. This instituted publish song, plaintiff the case of the this court strong dictum of accounting, asking injunction, an Fischer, Inc., 98 F. action for Tobani v. Carl 2d injunction damages, an and pendente and moved 305 U.S. denied certiorari as- grounds that the think it lite. On 420. We signment valid, granted was correctly. the motion interpreted appeal below and this followed. in connection question arose song copyright on of the renewal says It statute. with the start * * Smiling.” * One Eyes Are Irish “When living, still author that “the or author, Graff, Jr., col- defendants, George widow, widower, children of the or song in of this writing laborated living, or if if the be not author acting under he was at which time widow, widower, or children assign copyrights all agreement to general a to the executors, living, be not then the author’s Sons, with plaintiff, Witmark & M. will, of kin or his next absence years royalties. Five a reservation a renewal and extension shall be entitled to stated, financial later, he was has Graff further copyright for a entered difficulties; any he then rate applica twenty-eight years term of plaintiff with the agreement second into a extension shall tion for such renewal and * $1,600 * * for the considеration which year within been made have prior sixty- royalties on some released all his original expiration term Eyes Irish Are songs, including “When nine con copyright.” It is of ceded U.S.C.A. 23.§ assign- Smiling,” a further and also made this creates all concerned that rights. further renewal This ment expectancy, an and that event his purported bind Graff and assignment “heirs, day must on the first the the be alive author executors, and next administrators twenty-eighth year in to obtain order power kin,” an irrevocable granted assignment of this ex a renewal. An execute in attorney plaintiff pectancy must rest also on likewise survival. heirs, etc., all name or that of Graff’s assignment apparent here is also necessary the renewal to secure documents of renewal would not cut off rights therein for copyright and all widow, executors, children, extended to is, the as- renewal. That term of the kin, in the event Graff’s or next of supported by traditional signment was period. prior to the renewal See Fox death terms, attorney its to enforce Knowles, U.S. 326, Corp. v. Film bridge historically been the has only contest L.Ed. 680. The anciently whereby assignments recog- not or not the statute abso point whether ed actually assignment. Certainly made “at law” were lutely nized effective forbids parties. say it does. There passage intent does according Cook, assignment Alienability of in Ac- “shall void Choses an words that 822, 824; Ames, effect,” example, in as, for of no tion, Harv.L.Rev. 213, 214; pledge History, or trans dealing with the Legal C.A. Lectures § Barnett, Cir., no more pension. If we had than re F. fer of In Yale L.J. on, go May the statute could agreement, This dated words of .to 2d rеstraint on Copyright hardly in that a freedom duly find recorded assignment. on November Office however, had, upon the stat- day 1939, the Reliance August first On Copyright Act of copyright history. utory year of the twenty-eighth right shall be con- “exclusive applied must that the question—renewals execu- year plaintiff ap- entered tinued [the author] within that — assigns.” 1 Stat. name; tors, reg- administrators Graff’s plication for renewal in amended; name, the Act in Graff’s as- 124. renewal istered the approxi- provision to renewal changing the copyright itself, renewal signed the form, the words “execu- mately present days its assignment. Eleven and recorded assigns” dropped tors, administrators applied for his renewal and as- Graff later told, indi- This, we are 4 Stat. to defendant Fred Fish- out. signed this Music, signed Mills Chauncey defendant bers 01- noted that 1 lt Mills does threaten Ball, Since Inc. who collaborated Ernest cott injunction pe publish song, does not Graff, before the died against assigned it. re run widow her Olcott’s riod. plaintiff; Ball’s widow as newal' infrequently happens period. al It not tolerated.2 assignments are not cates copyright outright to the author sells his argued may just But as well comparatively sum. assign publisher for small prevent sought only to statute great proves to be a success If the work cut off the widow’s ment that would twenty-eight died; beyond lives term or children’s in case the author be years, your that it should committee felt only Congress intended the author right the author to take the exclusive renewal, family get his to a to be able term, law should be framed and the “executors, went out thus administrators” law, not so that he could existing as is the or, assigns”; said in along as with “or deprived right. of that Goff, 1 Music Pub. Co. White-Smith Cir., Congress enacted 187 F. years, present twenty-eight “The term policy, completely dis entirely “an new years, right for with the of renewal fourteen title, breaking up continu severing terms, many cases is insufficient. The word, what proper sense of the ance a enough together, to ought long to be taken used, vesting an might ever terms right to his give the exclusive author per absolutely eo nomine in the new title period for such that there work a says, how designated.” All sons that this being away from probability taken its ever, assignment copyright not is that when, perhaps, it age, him in his old he needs renewal; assignment is an that renewal H.R.Rep. Cong,, most.” 60th No. present expectancy, right. It does not a Sess., p. Report was 2d The House disposal express public policy against a adopted the Senate Committee on Patents possibility of renewal. We cannot Cong., Sen.Rep. as its own. No. 60th “void effect” in find and of no a 2d Sess. change. do the case oth this Nor Goff say We think it fair to that defendants’ express policy. At like such a most ers it substantially depends quotation, case on this they assignment would indicate that an expressing as a clear intent to the statu- this case to be be like the one in effective. to tory meaning to and one which we should present in was not since the issue And give effect. But several observations must cases, passed upon. See Fox it was it, be made about for contains its own am- Knowles, Corp. supra; Silverman Film biguities. purpose clearly Its direct was to Corp., Sunrise Pictures explain the continuance of a renewal term 289, certiorari denied A.L.R. F. against single long the substitution aof L.Ed. 1219. words, argued In other term. ex- an point Congressional More to the isting arrangement existing law”— —“the Report on the Act March necessarily and so not clearly for an ab- statute, present U.S.C.A. 23—ex- § is cept prohibition. solute If the committee had change slight here for a textual latter, really meant they easily could supporting was immaterial. committee drafted the statute. And could right decision extend the of renew- easily have purpose stated their in unam- years another to make a total fourteen al biguous words report. is, in their itAs period twenty-eight years, and it their own words almost as ambiguous as preference arrangement, for this stated its They the statute itself. said the author single and longer term for rather than deprived “could not be of” right to re- years. fifty So it said: life new. Does this mean he could not be de- committee, consideration, after full “Your prived of it if he “sells his copyright out- distinctly that it decided the advan- right publisher” so, ?3 If we agree. Or tage preserve of the author the renew- did mean court was strike Paige Banks, 13 Wall. copyright One treatise on states upheld assign Court an publishers sought unsuccessfully as a transfer of a ment made duce the committee to include an amend- after of renewal and under the Act requiring assignee ment pub- author and Assignment contingent renewal, preserv- lisher to unite in thus upheld of renewal publisher’s ing a plates. investment English statute, Anne, c. Bowker, Copyright, 1912, 117. This es- Bowles, Carnan v. Bro. C. C. nothing tablishes more than the com- Eng. Rep. 45, 1786. report mittee does. Publishers are still pres- illuminates little that dependent on author’s survival. Rеport issue the Committee ent Probably they Register Debates, would have liked to secure vol. Act. precarious expectancy; 7, App. than more cxix. Literary specifically attempt Wittenberg’s interest is treatise down the author’s so, “deprive” Property purports If He cited the footnote. dispose expectancy? of his use, result used poor for the to set out model contracts word to privilege authors and “deprived” publishers, his authors and that he is picture producers rights. from right, not saved movie his renewal motion alienate contract, publishing “deprivation” right itself. As In the he admonishes being “probability copyright its retain the the author to statement about the age,” right. away grant old him in his own name and exclusive taken repetition provi- same Wittenberg But also insists that no thought, than ambigu- whereby agrees same from the sion be included author and suffers assign to obtain a renewal the exclu- ity. This, says, right sive under the he renewal. been find the statute had If we that could copyright “the to right is because renew light interpreted of the committee’s the—in rests with the and he should we assignments as report such forbid —to agree joint protection to for renew the here, give to might well be inclined find we publisher.” Wittenberg, himself and the any the doubts the committee benefit 195, 196. is A similar clause contained Meaning they language chosen. had model movie Id. contract. obscure, may frequently courts well is Congressional Here, then, state sympathetic clear a substantial number be is they doing. say subject think all tending ments of what writers on Dickerson, only thing: the same can United States that an author 1356; renew, Hamilton and binding agree he but that can make Braden, Special Competence the Su The ments to renew for benefit. someone’s 1357-1367; Court, Yale preme seems not unreasonable to conclude L.J. Radin, Statutory Interpretation, this throughout cf. that such doubtless exists belief Naturally, 863. But we do not find Harv.L.Rev. neither this trade. ascertain, belief, interpretation; exists, far as we can if them it nor the authorities contrary. way general weight has Yet view been selves bind us. some Act, may passage after Assistant be attached Soon to the fact that an am Attorney statutory provision “no biguous fairly General Fowler that observed uni has formly interpreted way, pre subject of been one may doubt it [the renewal] sumably upon. acted renewal, which valid contract before equitable, legal, carry Perhaps not the persuasive would even more is the his- Op.Atty. tory attempts copy- thereto when renewed.” 28 of further title amend appears attempts have The Such also laws. were aimed at Gen. revision, people general usually change including the attitude of the affected been copyright; copyright as manifested the treatises in the duration of the but for our provisions published .subject. purposes relative to the Four treatises be copyrights preservation of status of stating definite in that an au 1909are fore existing at what would be time of enact- assign expectancy of validly thor ment of these bills are of interest. renewal,4 deny none that found we that of the passage: true some In two bills we find this “Pro- it. After * * * vided, hedge. Four treatises experts tended that where the author has part went effect agreed after new act into therewith for published the renewal probably assignment following can enf term act” under said terms state orced;5 [with fairly pe- definite others are make fit the time three contract but we Only proposed have found it.6 riods of the H.R. 71st about seems act]. Sess.; Í0434, assignability.7 particular Cong., deny Cong., Of 69th 2d H.R. show Copyright, Law of right, 1912, 117. and Copyright ^[4] Drone, 5Marehetti, Radio, 1936, Law that even Law, 1917, 367; Bowker, Literature, Law, 1925, 66; Weil, The were unsuccessful Copyright, 1847, MacGillivray, Law of the Law 67; DeWolf, ; Property, taken Stage, The Law of Morgan, 230; Curtis, Outline of away. does not Screen Copy- Copy- 773; lem 1936, 532-538, sion is Literary in his appears Law of Amdur, Ladas, own Wittenberg, not to have considered unilluminating, Motion name. Copyright Frohlich International 540-541. Artistic Pictures, Literary assignee’s Law and & however, Property, His Schwartz, Protection long any prob- Property, renewing Practice, discus- for we assignments could provision holding void this all others 1st Sess. And two further has act. But the author appears: “where True, it would quite re- seems to us doubtful. agreed copyright to renew the assignee or be to look nice for an author forward of the newal term for the benefit comes. time following]. the renewal money when terms more licensee” similar [with Sess.; assigning. What Cong., do H.R. But he 1st can H.R. 72d who bill, authors we would all Cong., saying a fifth 1st Sess. Still 72d cake House, already assigned eat their says can passed the same much which thing H.R, Only future and have it too. only slightly different words. This, Further- Cong., con- . fair all around. ruling Sess.8 such more, 71st 3d to be wish ceive, part recognition, on the authors constitutes a clear least, deprived privilege obtaining validity drafters money now, whose husband expectancies.9 or that a widow assignment Act of deprived penniless wishes to be dies acknowledgment of A somewhat more direct statutory privilege anticipating her validity assignments in three found are, effect, right. We asked to provide other that the continu- bills. These impose saving beyond twenty-eight forced on authors wid- copyright ation of the twenty- persons by requiring forego them to years * * * person “in ows shall vest money they years eight additional would entitled to whatever who have been * expec- by assignment their any could obtain of subject term require than an agreement equity, may tancies. It should valid law report am- disposal ambiguous re- on an been made for the committee produce prior biguous statutory such provision term to the date when this sec- newal tion, 926, amended, assignability. takes effect.” H.R. a drastic restriction on free Sess.; Cong., Cong., 76th 1st 75th H.R. by is reinforced This conclusion Sess.; Cong., 1st 1st S. 75th Sess.10 judicial disapproval of history of told, Congressmen All interested lawyers assignability. restraints Thus on copyright seem to have taken it for law rule way the archaic discovered a around granted agree that an author could action, against assignment choses of assign If the renewal to someone. directly, supported them equity courts of far, undoubtedly they agree went that result. at the and courts of law winked someone to author could authorize an Cook, supra. familiar op. Equally cit. period ar- act in his name when the on against restraints general rules rived. may be property.11 There alienation of attempts also, might mentiоned, history, we Notwithstanding this unsuccessful assign- wage only prevent employers well moved demonstration quot report ap- mentioning this bill is worth The committee assignments, appears pears recognize to be inconsistent it ed section deny speaks retaining which seems to “absolute rever- an earlier section agreements. validity “parallel” Com that of of such sion” of renewal —to supra. representa- pare 24 with § § 1909 Act —in the author’s H.R. the tives, explanation assignments.” “regardless 23§ to be his seems unpublished Sess., H.R.Rep. Cong., works. 71st 2d referred No. 11 Carey Schuyler, p. Law Illinois 13, esp. Interests, may point c. §§ the terms Future out 439; Up Schnebly, (1) provided if Restraints were: for in bills Legal Interests, original copyright assignment Alienation was on on the Schnebly 961-995, royalty royalty basis, 1186-1215. to be Tale L.J. says the same “Indeed, period; 961): during (at paid a substantial the renewal history property portion original copyright of real for a had been sold sum, lump in the record of various consists two bills said the same sum whereby sought legal again, paid it devices and two bills said inalienable, and of the means land shall be make “the author the owner and/or whereby upon perform- [renewal], courts thwarted those efforts entitled protect what order to deemed to of such conditions as be deter- ance larger good.” See, also, by agreement, social or in the mined absence ** court, agreement v. John D. Park Miles Medical Co. Dr. justice may require.” & Sons Graff would 517; probably pay- Bobbs-Merrill obtained a further Straus, plaintiff had Co. ment from the passed far immaterial so as the bills present discussion concerned. ments, consequent specific legisla evidence which casts doubt on the con- assign tion forbidding regulating sideration; certainly defendant Graff’s ments. de One such statute was royalties statement songs on the Cessna, clared unconstitutional. Massie v. assignment covered had amounted L.R.A.,N.S., Ill. 88 N.E. to as $5,000 much annually (i.e., as a 234; see, Am.St.Rep. generally, maximum) so, particularly does not do Fortas, Wage Assignments in Chicago, ephemeral view of the well-known nature Yale L. 526. And is the unusual popular Indeed, song hits. defendants J. assignment case of an unenforceable of an song’s present base their value electrical assertion spendthrift interest en being under a trust developments radio, the new pleasant calling forced it fiction transcription, and sound motion assign,” a “contract with the amount pictures. advertising And their adds that assigned as the damages. measure of sung year Olcott “for or two and Kelly Kelly, 11 Cal.2d 79 P.2d having then lived its hour seemed des- 119 A.L.R. Yale forgotten” tined to “a Dublin until L.J. Further, there is our recent holding minstrel,” isle,” own returning “to native assignment that an expectancy part Ireland,” made it folk “the lore valid, Barnett, supra; a will is In re seemingly came back here whence to a Restatement, Property, gen delayed, considerable, albeit present § suc- erally contingent interests in modem cess. law, Restatement, Property, 162. Our § Affirmed. society still rests theory on the that men ordinarily disposition can make free FRANK, Judge Circuit (dissenting). rights. property their perfectly We are From most interlocutory orders there willing uphold Congressional declara appeal. is no an interlocutory From public tion assignment fоrbids junction, of its capacity because marked renewal; a copyright expect of something but we harm, permits appeal. for an ambiguous more than inferences Unusual caution should be exercised in the report drawn explicitly from committee issuance of such an order. Cf. Watson v. arguing only for continuance of ex an Buck, 387, 61 isting statutory scheme with a new re bar, preliminary In the case the period. If property rights newal are to be on injunction seriously intrudes defend- rendered immediately untranslatable into ants, restraining them continuing money’s 'money worth, in pro order to going had on for sales—which been about contingent tect remote and future gains, copyrighted year song the ad- —of accomplished that result should be by legis good their versely affecting will. That declaration, by judicial lative not fiat. if, improper pre- on the order was facts present purposes, sented, assuming, for limiting discussion, We are our the facts will on final hear- us, parties before question the did unlikely plaintiff seems ing, it will be interpretation. statutory On this in sought, relief final granted decree ought we terlocutory issue to fore performance.1 specific I for think the parties other contentions close reversed, order should because on the may wish and be entitled raise on the appear, equity now court of facts as merits, including possibly claims of inade grant specific performance, should quacy of consideration in gross subject matter of light prevent negative toas enforcement of the contract, the circumstances relations assignment, go which would quеs made, parties when was and the adequacy damages remedy tion as a paid. consideration Restatement, Contracts, breach. for made, was 380. But we when the contract think we In §§ publisher, say plaintiff record no the was successful should contains F.Supp. author, court 76] 1 The district of trust the benefit of [38 opinion: plaintiff.” in its “Some said although plaintiff in its brief raised that Plaintiff relied has the G. copyright, pro Inc., right Schirmer, Corp., Robbins renewal Music obtaining herein Misc. N.Y.S.2d 699 cedure the. However, appears plaintiff, “accepted which, defective. to me deci advantage gained controlling material court below sion decreeing specific forcing plaintiff bring upon the State Court action for specific performance, performance of a or for a similar contract.” declaration plaint lyricist. immensely for the Graff, proved valuable an author defendant that Graff iff.2 record on this admitted straits.” desperate was “in financial then facts, should we considering released agreement, (a) By Graff ca of the economic take notice existing un plaintiff obligation, from the most pacities acumen and business de pay to agreement, der an earlier per that certain In ascertaining authors. period, fendant, over a considerable future com sons, economic “often because royalties, of some seven group annual on a class,” “necessitous pulsion,” constituted a ty royalties “had amounted songs, which 1928, used, present Justice, Chief an previous years much as to as $5000 knowledge which off-the-record judicially, give рlain ; nually” (b) contracted as the elicit—such inquiry would no casual contingent rights renew personal tiff City Club report by the contents of a seventy if songs, on those copyrights Proceedings of York, of New i.e., ripen, later ever those should Offi Labor of Governmental Association twenty-two years live go Graff need not cials, like.3 We and the was longer, until 1939. consideration only take need nearly here. We so far $1,600. The lump payment to Graff every school that which judicial notice of cer almost royalties alone were released usually, a few that, boy knows — equal entire tain, period, to a short Shake as W. exceptions (such notable ' basis, $1,600; consideration Shaw), authors speare and G. B. the re actually received for was nothing transactions inept in business hopelessly assume even if rights. But newal Graff, the defendant lyricists, like and that royalties paid the released was nothing song.” “for a songs sell their often paid re $1,600 for the was entire and the de- (a) the then, where Here, case is a seventy then, rights, there were newal of a class fendant paid amount songs, in busi- notoriously inexperienced persons involved in this particular song actual- author was particular ness, $1,600 or about one-seventieth suit was financial time, desperate ly, at copyright twen renew a suc- straits, plaintiff $23. while right which on no (b) later —a ty-two years publisher; experienced cessful such a worth for was assumption could contracted property the contract author lived for unless character purchaser course, party could know was, made, “neither twenty-two years more — valuе,” “it was so that speculation has approximately speculative. highly confessedly went Brandéis 2 Mr. Justice present renewal of the value ju- acquaint bimself, song record to out of tbe is not estimated in suit to the breadmaking dicially, However, “the art moving papers. it was used with trade, usages 1939, of the devices and and 6,335 the radio times on imposed buyers by profita- are prospective of bread which a number are there upon being honest bakers or dealers since into have come uses which ble by subjected assignment, their dishonest fellows such elec- of the the date problems competition, with transcriptions radio, motion- unfair trical public pub- coin-operated confronted officials tracks, picture sound charged broadcasting. of the laws with the enforcement phonographs and radio lic prohibiting weights, president appellee’s short ‍‌‌‌​​‌​​​‌​‌‌‌‌‌​‌‌​​‌‌​​‌​​​‌‌‌‌​‌‌​‌‌​‌​​‌​‌​‌‍with their moving paper, In its administering experience in song those laws” urges most “is one —obtaining times,” information from a va ballads celebrated riety including sources, letter, necessary pre- injunction writ is 1917, monetary damage.” Hoover Pres Herbert ten “substantial vent Jay Wilson; Baking Burns Co. ident similar were There 594, Bryan, songs 264 U.S. v. Graff sold other several including 68 L.Ed. 32 A.L. 44 plaintiff in the same contract — Guy v. F. Cf. Oklahoma Atkin R. 661. ’Till The Sands the well-known Co., 1941, 313 U.S. 61 S.Ct. son Cold —which have admitted- Grow Deserts ly famous.” world “become matters, For and related Dissenting opinion see Da- 3 in Ribnik v. Mc Approach vis, 350, 361, 364-370, An Problems of Evi- Bride, 277 Process, in The Administrative dence A.L.R. (1942) 364, good 403-405. Harv.L.Rev. is doctrine dissent now Nebraska, light Olsen v. 244-246, 1305, 133 A.L.R. 500. bargain dark”; made in the (c) mining properties, tain $750,000. than worth consideration was а small specific performance, denying sum.. Appeals Circuit Court of F. 483] [154 That is not the kind of contract which for the Ninth Circuit said that the con- equity will specifically Although enforce. tract convey “prop- bound the defendant to Kent, Chancellor in a early well-reasoned erty of party which neither could know case, Seymour Delancey, Johns.Ch., even approximately the It was a value. N.Y., 222, concluded that inadequacy of ** bargain made the dark. Where specific consideration alone per would .bar inadequate grossly the consideration sois contract, formance of a his views were present case, as it is the contract rejected appeal by a .bare majority, 3 any is time knowledge made without Cow., Y., 445, N. 15 Am.Dec. in what of making part its of either became the leading American case. More parties prop- thereto the nature of recently, however, there grow has been a value, thereby, erty its affected or of ing tendency adopt Chancellor Kent’s spe- equitable principle no if violated view. But we need not rely on such denied, parties performance cific authorities, for it is well-established that remedies, legal are left if their specific performance where, will be denied they have.” in addition to inadequate consideration, reasons, order foregoing other of the For factors contribute to inequity interlocutory injunction bargain. for an Simp See Chafee and son, Cases on Equity (1934) 1173-1193, reversed.4 especially page note Among because It should also be reversed factors to considered are lack of advice enforcement, think, can, I contracting party, Ames, Ames v. contract for Copyright of a Act of Ind.App. 509; Banaghan N.E. option the sale of an author’s Malaney, 839; 200 Mass. 85 N.E. prior to date when the author made L.R.A.,N.S., 871, Am.St.Rep. option. to exercise that himself able experience differences in business previous My discussion has a bearing information, Margraf Muir, 57 N.Y. interpretation For, on the of that Act. 155; especially improvident if an contract equitable denying enforce- result, Comstock, is 968, Pickett v. 209 Iowa ment of certain contracts sale of lump 229 N.W. 249.3a Where a small property, considered, which I just coupled consideration is sum sale upon non-statutory grounds, it serves rests inexperienced property seller of my colleagues’ suggestion answer value, problematic highly deny equity will granted pol- it for we must take Gates, Cir., relief. Marks v. system icy posed legal steadfastly op- of our L.R.A.,N.S., 317, F. Ann.Cas. any impediments on the freest 120; cf. Federal Oil Co. Western Oil possible alienability all men of their Co., Cir., F. cases cited that we must property, and construe this 954-957; Pomeroy, Specific in 58 Per C.J. accordingly. statute Contracts, of 3d Ed. formance Sec surmise, might Congress As one Gates, had supra, tions 192-198. Marks the inexperience fully the in mind of performance authors. plaintiff specific asked for show, protect I shall it desired to As a the contract which of defendant against very improvident the sort convey per them twenty to him a agreed to cent disposition agreement for the property acquire in should of their con- interest Territory tingent privilеges which, renewal Alaska. The consid bar, cash, opinion majority case the in at eration was and the $1000 can holds Indeed, $11,225. my colleagues, debt enforceable. cellation of a Within two be ago, joined opinion acquired the had few weeks in years, defendant cer- in 3a Mississippi ultimately win, doing Mo. Co. Cf. & R. without R. unneces- sary Cromwell, 645-646, harm to U.S. 23 L. defendants should ulti- Randolph’s mately (assuming Ex’r Ed. succeed. Quidnick At most that prior any agreement made to the renewal right L.Ed. 200. date to sell renewal can be val- id) The defendants seem not the interim be finan order should not have cially responsible. alone, gone beyond pendente however, impounding, ground preliminary lite, receipts injunction, for a the defendants from surely song. not when there sales of are other the protecting plaintiff, means should it statutes, sure) In both Stat. (in to be passing, [2 171]. said which it was are useless provisions which before the Act now very section of that the like- burdensome, there are upon au- the and in “imposes us limitation] [a * * * In the Unit- discrepancies. right re- wise dispose of the power thor’s laws, copy-right States, “clearly existing the his life” which ed during newal in- author, in first is secured to protect and children widows intended to if, stance, years; au- fourteen supposed improvidence of from the * * living, then period, he be Shapiro, & end Bernstein thors Co., but, more; he be then Cir., years if al., Inc., Bryan December fourteen et copy-right deter- living, then the [Incidentally, not F.2d event unnecessary although, that recent makes it mined decision in family stand his weight give any the obiter dictum death subsist- Mantón, means of J., opinion Tobani v. more need * ** Inc., Fischеr, ordinarily left to them. Carl ence F.2d majority opinion in- to which the copy- author a bill secures “The approval.] stant case refers first twenty-eight years, right for must, majority opinion grants, as instance, right renewal for four- put very real restraints pe- some if, that more, first at the end teen dispose his on riod, the author’s living, or shall have the author * * * pur- option: statutory renewal One who scholar, se- family. who prior to contract made chases it under a life, his of- and wastes cludes himself acquires world, nothing, the renewal date enlighten the property to ten his concedes, majority if the author profits has best date; not if he intes- encourage alive on that dies not Shall we labors. then, tate his before creditors cannot avail enlighten knowledge, and the means of that ** option pre- themselves of ought *? that virtue date, even if he leaves no or widow every inducement sent reasonable children, Congress expressly because their talents. men to consecrate fluence * * * option pass to next then for the interest cannot be of kin to his administrator. la- country intellectual honor of our admits, also, And de- depreciated, and a life bor should be provide clearly statute does study ter- laborious research and voted to ¿live date, the author is on the disappointment poverty. minate * * * option purchaser to a passes is, au- whether the in the instant a contract as before us reap the reward.” thor bookseller shall must, therefore, case. We turn to the Congressional pjurpose With legislative history. better, mind, we can the Act My quote colleagues part Congressional Con- intention get at gressional reports concerning committee (more quoting 1909 Act enacting reports discussing Act. from my colleagues) Those extensively than do term, say Reports to a renewal author’s that Act :5 the Committee that “the should be framed is the urged committee before “It was law, so existing that he could not de- single to have a be better it would right,” prived of that and cannot any right renewal, term without “taken old away age in his him suggested. fifty years life and term of report the he heeds it the most.” Since consideration, committee, full after Your law,” “existing then the 1831 refers Act, the distinctly ad- to the decided that it the should examine —as we preserve re- author to the the vantage of of the following does not —the comments infrequently happens It not period. newal Congressional made at the time Committee outright copyright sells his author that the when Act the 1831 was enacted: comparatively small for publisher a to a proves a great be the work second session of the first Con- If “At the sum. beyond the term of lives au- passed to secure success gress, a statute your felt years, committee books, twenty-eight copy-right their charts thors the right exclusive be the like it should maps. In a statute term, and the renewal take passed copy-right prints author to the to secure seq. Report Cong. p. Committee The Senate 14 et No. 60th 2d Sess. House report. adopted this the law should be framed as is the ex- that he can deprived “not right” of that law, isting so that de- having he could not be it away from “taken him prived right. present his age The term old it he needs the most.” twenty-eight years, right with the of re- I find difficult regard it those ex newal years, for fourteen many cases pressions of the Committees as mere idle insufficient. ought terms, together, taken talk, or as ambiguous so that we can long enough to be give au- laugh them off. The considerations which right thor the exclusive to his work for they present fully suggestion answer the period prob- such a that there would be no majority opinion that, if we do not ability away of its from being taken him allow author away to contract his con age, when, perhaps, in his old needs it he tingent renewal privilege ripens, before it very percentage most. small A we him depriving a means copyrights are ever renewed. All use of procuring funds, by sale of right them ceases in long most cases before when it contingent is still living, on his expiration years. twenty-eight In i.e., prior beginning twenty- to the comparatively few cases where work eighth year. Congress If him intended term, original ought the author survives time, dispose to be able to of it before that adequate given to be renewal term.”6 why fifty- it confer on single did not him a year Why provide six renewal, term? did it for a should, us, case before We care- explicitly prevent its exer fully especially consider these sentences Plainly, cise at an earlier date? as Con Reports: those two “The said, gress because it wanted the author is whether the author or bookseller to be unable sell “outright pub to a reap infrequently the reward.” “It not comparatively lisher for sum”— small happens copy- the author sells his as he to do in this endeavored case. right outright publisher com- attempted “оutright” Here the sale of paratively Surely, small light sum.” 1917, twenty- occurred in Congressional purpose thus dis- years two came into ex before closed, ought not so construe the stat- e., (i. 1939). Congress If istence contem publisher ute and not the au- plated author should be that the able reward,” when, “reap the thor will date, early make such sale so then infrequently happens” here—and as “not possible position put him the worst copyright outright “author his —the sells adequate for an to do so consideration: comparatively for a small sum.” any Congressman any sense As must ¡literally Committees almost de- prior seen, sale value scribed facts of instant case: small, year, twenty-eighth would be outright original Graff sold his term for purchaser buying because sum. His a small turned out to be one gamble longevity. on the author’s In oth comparatively “of the few cases where words, repeat, early er if such an sale original the work survives the term.” It allowed, arrangement was to be the best just meet was to such a contingency, the single author would been a for the said, Congress gave Committees fifty-six years, gam “the for then the term of right” author the exclusive to “an ade- inhere in element would not bling the sale. that quate renewal term” could, explicitly rejected But ar case, “reap such a order, reward” Why? in “his old rangement. the Commit it, should see to age.” gress said, safeguard Con- the author tees “in “right explicit age.” intended author to intention is frus old hedged majority’s interpretation. take renewal term” is so about trated report work, living, also “Your said: commit if the author of still may apply renewal, widow, do not fаvor and the bill tee provide does not or the original widower, author, extension of the or children of twenty-eight years, living, term it does or if such author provide widow, living, for an extension of widower or children be not years twenty-eight executors, or, term from fourteen to then author’s the years; change will, and it makes some of a his next of ex absence kin. It was isting apply permit law as to those who intention to the the adminis- apply confirming renewal,

the renewal. Instead of for the the trator to but to right permit author, the of to author the who had no still wife or living, bequeath by right or to the widow or children of the to children will the to provide dead, apply if he be renewal.” that might perfect which re- assignee that the interpretation is The result of that be- right newal in his own his old in his own protection the author “in of hocus-pocus. a to like half and without such age” resort teasing becomes illusion “a will.”7 bequest pauper’s munificent in a that It was Statute Uses8 and, hos- purpose it failed in its because opinion demonstrates majority The itself interpretation, effect tile had the any such that the benefit the author convey- merely three “adding words trifling: be early necessarily sale must statute, by ance.” similar A gutting paid the small consideration discussing my interpretation, col- will result two by plaintiff to Graff 1917—over leagues’ decision here. ma- renewal date —the decades before the adequate opinion says it was jority uneasy obviously my colleagues ephemeral na- “the interpretation because of Congres- well-known about their popular ture of hits.” Which song expressed sional intention in the 1909 Com- expected say no one could report that in 1917 by mittee their des- demonstrated slight the re- more than a sum for pay perate subsequently recourse to intro- bills song, Only newal to even most successful passage. duced but which failed of especially purchased since progressed one of bills as far as were alive unless the author passage valueless Congress. one And by house of Since, opinion majority as since, in 1939. another, in one or bills way all those must, early expressly provided acknowledges, an sale thus assignment term, evitably, negligible price, how can might mean be said to Congressional purpose protecting anything not, show —if as the show — age it, be reconciled with old of the author recognition “a majority would have a sale ? alleged such permission make validity assign- Act but, received an author term,” A small sum ment the renewal on the con- twenty help trary, man will do little to him young the draftsmen believed that later, years. years in his declining legislation needed to validate amending assignment. proposed such an While but majori- interpreted The statute as legislation unsuccessful is at best a feeble ty merely means An author cannot this: statutory interpretation, only basis for “outright” sale before the make direct proposed sort of have had bill which would year. But, say my twenty-eighth col- significance, any clear the va- showing as leagues, can so do indirection — Act, lidity of an under the 1909 assignment here) (twenty-two years earlier making as sought been one de- would prive agreement, specifically enforceable abso- assign the author of him, lutely binding assigned to have renewal, explicitly or one which stated twenty-eighth soon in his name as thereafter, assignments that such opinion year The majority arrives. admits theretofore, valid; pro- no between such the difference a trans- posal ever made. “outright” direct action and forbidden variety. opinion cites, tweedledum-and-dee support sale is of the employed plaintiff hocus-pocus interpretation, its views seven text- writers; yet clear the artificial character of the majority opinion makes book con- plaintiff, “expert” distinction: Witmark & that one such M. cedes denied the Sons, early for its title to the on an power assignment relies song to make “to “hedged” executed M. assignment in 1939 Wit- other six either that the were Sons,” George signed by “by “fairly” Graff definite. There is mark & then no George support majority’s & Sons” Graff’s M. evidence comment Witmark attorney.” Congress “appointed could not fairly uniformly the statute “has been purpose— way” by “experts.” admitted interpreted intended that its twenty- scrap sale prevent evidence, a direct is not a prior And there record, year easily circum- eighth my or out of sustain col- —should had intended an an- statement “it seems leagues’ vented. If not un- assignment valid, ticipatory should be it to conclude” that such a reasonable belief e., century, assigna- the course of a are thus strange (i. that renewal provided throughout machinery by it has “doubtless exists the trade.” ble) since Edwards vember Mr. -. Justice People Jackson California, concurring No Eadin, English (1936), 8 Perhaps Law, Anglo-American ; et 467 altogether Holdsworth, History seq. Legal History accurately,

960 years. Court, Helvering My Suрreme a comment in colleagues refer to also Attorney Hallock, 444, 106, 119, v. opinion Acting made in an U.S. 309 60 S.Ct. 451, 1368, 604, Op.Atty.Gen. General 84 125 A.L.R. said: 28 L.Ed. Fowler. that, explain by as “To disregard But opinion discloses, the cause non-action fact response Congress to the Congress when itself sheds no it was in light “direct assignees speculative unreali- whether to venture into assignments Congress are “entitled ties. had atten- may of the renewal” not have its decision; ques- renewals”; to that tion the answer directed to an undesirable negative; was in the there is no indication that tion as to opinion here quoted in St. Louis Trust cases v. [Helvering remark St. 74, passing, Co., 39, as is shown made in Louis 80 L.Ed. merely Trust 296 U.S. 56 S.Ct. in- 29, “It is not statement: following A.L.R. Becker v. 100 any 48, determine opinion tended question this Louis St. Trust 296 U.S. 56 S.Ct. rela- 78, had, any which relates L.Ed. bill 80 35] assigns, rights their way pigeon- tive of authors and that found its into a committee way only by rights Congress mentioned hole. atten- not have had its may argument.” quali- Thus tion of illustration or so directed number of reasons. * * * fied, opinion is entitled an obiter such an Various considerations * weight. to little might suggested in- ** action Congress, argued plaintiff that It was quick- sufficient to on indicate we walk Act, must be when the 1909 enacting sand in the absence of try when to find we judicial deemed to have had in mind legislation legal a controlling corrective Act, terpretation that the 1831 principle.”9 noted that there It should be later therefore be construed Act must report of the Committee nothing had it. But there majority construes Act refers to dealing 1909 interpretation ‍‌‌‌​​‌​​​‌​‌‌‌‌‌​‌‌​​‌‌​​‌​​​‌‌‌‌​‌‌​‌‌​‌​​‌​‌​‌‍of the judicial been clear Banks, And, best, Paige supra. at not at lines. along 1831 Act suggested statutory rule of construction 1871, Banks, that, Paige plain all only one means—“neither final nor conclu- 709, court, pass- 608, 20 L.Ed. Wall. ing legislative inter- sive”—of ascertaining 1828, was thus contract made est, way to lucid in- give which must Act, distinguished the 1831 construing from" the intent, of that such as find dications 1790, which Act of preceding reports. here Helver- Committee Cf. Put- provisions. Judge differed its Bank, U. Stockholms Enskilda ing v. nam, Goff, Co. v. Music White-Smith 50, S. 55 S.Ct. Boston 253, Paige understood F. States, United U.S. Sand Co. v. Banks, solely supra, as to the 1790 relating L.Ed. 170. S.Ct. that it cannot statute to show goes Congress in considerations following that it clear to reinforce reports: Supreme my interpretation had held that under the of those Court Constitution, contingent privilege 8, expressly cl. Act art. § prior purposes the author to the states the limited for which alienable was date copy- patents renewal. In the face of fixed for authorize and the weight ambiguity, promote Prog- not much follows: “to Arts, by statutory rule of construc- se- ress of Science useful given be tion uses, legislature without Times for limited curing Inventors the exclusive Authors pre- Right statutory language which has to their re- change, interpretation, spective Writings viously judicial and Discoveries.” received [For clause, light background read in the historical language of the statute is Hamilton, Enterprise, interpretation. That rule of see con- Patents Free of such Monograph recent much T. N. E. No. has been weakened C. 11-27.10] struction Ship during changed Bethlehem had not been almost Neirbo Co. v. Cf. century despite interpretation,

building Corp., 308 U.S. it; dissenting proposals 128 A.L.R. to amend opinion Butler, J., page had left un statute been where century changed after deci half A. repudiat case were L.R. which in that sions Tomp In Erie R. Co. A brilliant criticism of the conven court. ed fight descriptions monop kins, tional L. reigns waged of Elizabeth and 114 A.L.R. the statute olies Ed.

961 closely ful- in line patent bring or statute should that statute copyright A pro- interpretation the purpose; if it the than fill that constitutional Constitution will adopted by my colleagues. the monopoly primarily for the And that a benefit moted the publishers, clearly than in or rather Constitutional limitation was manufacturers basically or a reward to inventors mind of in the statu- as 1831—when first authors, verge tory provisions question in were it on unconstitu- here for, tionality.11 keep likely; just adopted- highly must two To effect that we the —is years earlier, 1829, Supreme sharp eye purpose the the Constitutional Court a in clause, Corp. language Engineering stressing this Consti- Cuno 10, provision Corp., Automatic Devices November tutional far more than it subse- v. 1941, L.Ed.-, I 37, quently did date.14 62 86 and Morton until recent S.Ct. 5, here more this statement Suppiger January Co. v. G. note once Salt S. 1942, L.Ed.-, 402, report: dis- “The whether 62 86 1831 is S.Ct. which reap close movement author or bookseller the reward.” back-to-the-Constitution shall Committee, simple in a in field which words of the The answer of the constrained was, regarded Constitution, necessarily, “the as least as Constitution are at good than) majority (if as one author.” Yet the result of the guide a better opinion gloss give in the other an- the reams of which have writ case is to been price ten since 1789. West Co. v. swer—“the bookseller.” For a small Coast Hotel 379, Parrish, 391, 1917, 578, paid here (so 300 U.S. 57 S.Ct. “bookseller” 1330;12 581, 703, author’s con- acquired 81 108 Wis majority rules) A.L.R. L.Ed. Penney Co., right which, came into be- 435, tingent it consin 444, C. when v. J. And, 1939, immensely 267, valuable. ing 61 L.Ed. A.L.R. S.Ct. Frankfurter, shown, recognizes majority J., already cf. concurring that, inevitably, acquisition for an in- People Graves v. rel. New York ex consequence O’Keefe, must substantial sum U.S. contingent sale of the permitting A.L.R. 1466: “But date, that, is early at an if there constitutionality the ultimate touchstone of anyone going to substantial reward Constitution itself and not what we renewal, not, in cir- it such will worthy note, have said about it.” the author. also, that, cumstances^enure while individual inventor way between seems to be The inherent difference rapidly to the cor giving exploiting porate laboratory, patent research involved pat so that the difficulties always ap been copyright grant longer ent is no and a must same kind noteworthy that parent. And it is personal genius stimulus to it once Congress provided patents (see Hamilton, ibid., time 152-158),13 should, showing, renewable certain development place on a among such has taken pro expressly it period, for an additional respect authors song-writers. With equivalently as vided, not do persons, did the full achievement of the Copyright the 1831 or 1909 objectives copyrights provision Constitutional Acts, of such easily possible. interpretation “And the benefit still An grantees Act, assignees and Copyright seq., et extend to U.S.C.A. shall 1§ -thing adequate protection patented, gives use them will study by overhauling opment I is in a necessitate James made Gold-wa- Anti-Monopoly patent system ter, serve the if it Movement objective. Hand, 1939). England, (unpublished, L. Cf. 1606-1624 constitutional system [patent] “Perhaps course, is out- in Of in order aid the J.: ” * * * Dewey Almy be, & Chem- viа the ventor or must worn Co., Inc., patent copyright, Janu- incentives Co. Mimex some ical publishers. ary 124 F.2d 986. manufacturers Dialogue, 1829, repudiating court, Pet. 14 in 12Therethe ex Pennock Story empha pressions Mr. Justice found in Adkins v. Children’s provision. Later, Hospital, 261 sized the constitutional U.S. paid at of the court less A.L.R. said: “The L.Ed. speak (although there was a deviation in Constitution does not freedom of tention Brady, Atlantic Works contract.” say develop- Otto This is not long detour, 438). corporate After ment of the tory research labora- recently pat- has returned to earlier court calls the elimination of the Engineering Corp. system, merely many per- Cuno attitude. See ent Corp. supra. recently suggested, Devices devel- Automatic sons have plainest because freest ticular case —as day, minds of the tion ates colleagues, into many Rokeach consensual That this is secret.” necessary they tention of ten ing’ a contract much confusion was the notion adding: “One a contract. cerning of the reluctance nized part treme enthusiasm for Thus one manifestation of ago, intensity, the American attitude. But have been please. pretation liberty is that men should have the extent of their Consequently, it pious part large ^[*] which to a status which laissez-faire against if there were still were to a considerable extent from “the intention contracts, frankly confessed that that And theory The chief obligations *”14a several times possible our Judge language can overcome whole, desirably, been, fiction, of considerations of I “implied” negative measure this confusiоn & Parev Products as this court has adopted by agree uncharacteristically, act of the in our Sons, Inc., society make interpret the statute as Yet true has parties, that a contract cre- square 19th court Clark, appropriate parties’ may perhaps saying, that courts bargaining that that that prop respective were still our peculiarly such imposes history rests on the century, is. has stated courts have all restrictions on the within recent weeks. court, doctrine, courts that there had been “liberty of contract” surprising long parties in an is a contracts Cir., strong has, were not in the greatest possible where changes in fullest Co., Inc., v. I. statements con- so to do. interest therein the desire Congress must never candidly the devotion to about statutory covenants and been an good formula to admit that intense, the most ex- conclude while, during opinion policy.15 with result. theory obligations parties” to it, arises out it seemed presump- only the F.2d long idea was this attached a month entering general, ‘remak- so that opinion if, bloom low the recog- inter- writ- open par- they and, ‘In- that my de- to- table restrictions hence were words, they rule er the condition had become doctrine ginnings of American that there not so ignorant not think of tractual which had hence common law turies. ployer between the doctrine of which other ly existing This derstood status to ings decades powers ess was restore status and restrict tract.17 Hence it seemed to them that bued with a doctrine of then stract control. ing and full century. courts must set forth in wording as found in a Such ‘natural redemрtion mortgaged property author’s constitutional age against clogging the should not be attitude resulted than the actual “taken for immemorial and universal. individual self-determination reasonable. unconstitutional. during of free men easy holder of a was, incapacities violated must and sound mind in as to The state contract, incapacities disregarded * * * it, As Dean Pound has seventeenth had been such laws from the be- incapacities.’ Usury developed general rights, were men English progress employee and the incapacities genuine legislative move interfering. penalties, the the latter explain. gospel might requirement as the last familiar able to sure, in order to by enacting release. There in the direction of ab- penal in the relation legislative attempts to courts held for two damages, lawmaking, with which faith legislation, in our unless that desire principles from status and free make that law was mov- imposition clog judges equity could be idealized “an make part But But bond to recover historically precise remained eighteenth progress particular generation attitude of the arbitrary contract, refusal to al- law, freely alienability inconsistency absolute, said,16 of due protect there were courts that men of agreements' contractual laws were surviving especial- doctrine the 19th redemp- * * * of con- by * * *” equity it was some, other equi- were proc- call- cen- con- him, aft- free em- that un- did im- 16 Interpretations Legal History 14a Law, 5 Stat. at L. Patent This renewal feature 6Off. See. 18. “doctrine” in the Patent Act of involved a mis omitted interprеtation epigram, then. of Maine’s and since Stat. Forness, Cir., Forness, supra, States United States United F. January 125 F.2d note 2d note 25. Lines, Hume v. Moore-McCormack 336, 342-343, 121 F.2d 18-22. exercised, indirectly, freedom thus the individual face of the abstract ment bargains punish The to up enforce his and to they as ideal. had set try execpt equitable bargain who they make him say that the best incapacities was could This chooses.20 involves some historical. The Hale thesis also were challenge legislature over-statement. But its dramatic holding amounted helps us to at contractual conventional thesis create new was unable to perspective. drawn tain new and had been valuable capacities; lines public eighteenth high-light serves interest in and forever in the seventeenth it, disa- type Because of can new individual contracts. that no centuries and time, why, it mat- did Nor did better understand at no let- recognized. bility could go alone-ism underlying principle so far as obliterate all ter that the as direct governmental was the same interference con statutory disabilities new ; imposed why, hey-day tracts even in the of laissez underlying the disabilities faire, were doctrines equity.” there retained such against perpetuities as the and the rule that the theory of laissez-faire was alienation, rules as to restraints on dower state, interfere was not to government, trusts, voidability rights, spendthrift was beyond That such minimum. bare Laissez-faire, contracts, infants’ etc. practice, when laissez- actual words, emphasis; other shift meant a brilliantly zenith, its has been faire was in older were not killed off but mere attitudes Hale, be- Robert writings shown ly submerged. aids see the Hale us to may para- thesis ginning in 1923.19 His legitimacy openly of the State’s now ac appearance, In un- phrased thus: outward knowledged and interfer interest direct let-alone-ism, of state extensive use der many Nothing, ence kinds of contracts. however, fact, rejected. power is In said, it has been like excess. exceeds State’s much of the a transference went far. Laissez-faire too they The contracts power to individuals. lawful) (so they helpful ap- are en- make far as It is to make an historical through protected proach interpretative the State chief forced device employed by my opin- its colleagues. courts its sheriffs. the orders of Their relies, effect, ion, again, sup- individual has a I More than note on a institutions, property any spirit sell or use his tenaciously to refuse to of our posed opposed except own terms. If some- terms or restraints on freedom to con- to all tract, which, him sell urged, else tries to make or use it must be read one into terms, State, through except legislation. on those To make that all American sheriffs, protect here, my will applicable colleagues courts and him its thesis must Liberty spirit operative to contract was from intrusions. assume that century liberty Copyright contract as ago includes one when the Act stated E. tract 1927; Constitutional 35 Col.L.Eev. Tri-City of the State Supposedly Sei. (1939) Cohen, a contract view, Hale’s See As Q. * * * puts (although (1923) Chief Justice Coercion and Distribution Council, the law of who American ideas Non-Coercive at the 475; (1935) Guarantiеs, says were independently) ** that our disposal Force Taft Steel contract From subsequently sovereign power 27 A.L.R. State, 38 Pol. Our 39 Col.L.Eev. Foundries v. “law of con- Equivocal say State, party point in a re- M. hen, will urally law, fers L.Q. which the viewed as a under what Control of Business sis er be disposal Social Order other be exercised as between Property sovereignty (1927) conferred?" M. E. (by putting Contract, more or arises: If sovereign then the law of contract con- circumstances body subsidiary (1933) former) For what cf. less on one the State’s force at the Sovereignty, Cohen, J. M. rules voluntary 103-104; branch of Cohen, party shall that Law and The purposes Clark, according of the State 13 Corn. over an- The Ba- bargain parties cf. Co- public Social pow- nat- enacted; Act, many felt.25 the 1909 it is con- matters made themselves ceded, en- Copyright statute When the 1831 Act was took over earlier acted, considering yet provisions whole-hog was not which we are laissez-faire us; However, vocabulary accordingly fashionable. the case now before spirit” full-fledged style 1831.20a relevant “time is that of let-alone-ism became the spirit, average then and with the purporting such a “educated” to find well-to-do are, think, operative, my colleagues I still American after War.26 For a Civil many history. span years, vocabulary misreading Both constricting views such of those have criticized who ultra-let-alone-ism fashionable history expressed21 have made much judiciary. As is not seldom smooth, oversimplified true, it: Even too step fashion was out of laissez-faire, period popular budding so-called with а fashion in words course, “histor- thoughts as in almost so-called outside the court houses.27 currents period,” saying there were numerous What the courts was not neces- ical were cross-currents, in one single not a drift sarily and index what had in of only lawyers sees casual observer direction.22 The mind: We are too inclined to much ex- history capsules; And with legal the surface. take in we re- the current at merely history reading laissez-faire: strict our what cessive too much to —and books, relatively time —the surface neglecting for a short we find in the law Republic, early days In the that “there waft into current. fact the courts oc- powerful.23 visibly gusts perpetually mercantilism was still casional and varied * * * certainly not changing Hamilton was weather of transac- Alexander “old Adam”— n wholly grip occurring tions” in world. “A the outer jar notions —and Mercantilist climate cannot from a Adam Smith. be delineated through- however, captured raindrops.”28 persisted Even, even medieval in notions24 — America, in century court-houses, who, out 19th were there of Political England, too, Clarke, Historians earlier each to some and attitudes Northern not one the time when it spirit symbolizes nents Stratford, the it, er “mercantilism” January conscious of the Ct. statute we such often dollar 20a To shift Beard, 529, As to domestic Supreme symphony Of Cf. Cf. United States Dean Braden, To the effect spirits. vague explain Govern words, there than in this Hamilton 86 L.Ed. laissez-faire, course, 20, “spirit Pol.Sci.Q. Ry. emphasis. Pound, The Victorian Introduction usually, (1906) 609, 612ff; note Theory 1942, catchwords. complex Court, there moving why (1937). Co. United The having metaphor, many and “laissez-faire” particular recur to the —. history. for instance. Special Competence 125 F.2d 928. ho chooses one bias, is much (1888) (1937) 656-665, 50 Vale L.J. policy, see, towards or many labels Sabine, facets and any given moment, Adair, passed, conscious or congeries age,” to The Forness, e. and to use ten Each of Cycle historian Or country; g., Wingfield- cacophony States, 62 S. sources. construing “medieval,” A The Pow- history hut to restate Hamilton reprinted History surface (1935); British compo- of acts did in special (1941) Groat many them will un- As cf. Bois, produce ancient that beliefs are not After The Bubble Act 429, 555, statement must L.Ed. because Opinion 673, 39 were there said not occasionally represents day final Founding ers’ Ct. City great respect, 394 and Butchers’ Union Smith’s views dividual tectionist Mr. Justice akin Cases, 1873, Hume Moore-McCormack 121 Professor Walter B. today Fenno, 1869, public 652, Goebel, Not a statute “If F.2d Loan & before things Co., 1884, v. they mercantilism. prejudices.” 28 L.Ed. egotism as of until we reach 336, authoritative. Fathers. Cf. Pollock England, welfare Editor’s Smith was referred to English Field in the public opinion yesterday. 16 Wall. are out of Trust but his yesterday, judge-made as ancient as to as the and note 12. 585, coupled quoted judicially necessarily 2d Introduction to Wall. to have Business the virtues of in- foreign views Dicey, 36, 110, Kennedy truths as well as Ed., 1914, do we find Adam date; Slaughter-House prime protector But with this 746, 757, 9pinion 553, 541, not so much Lines, Cir., Veazie Bank v. ‍‌‌‌​​‌​​​‌​‌‌‌‌‌​‌‌​​‌‌​​‌​​​‌‌‌‌​‌‌​‌‌​‌​​‌​‌​‌‍Crescent vii. opinions affairs was guided apt Law erroneous there are Company 157 U.S. reflection 21 L.Ed. Our taxation remarks Farm- 2 to re- 4 S. Du- pro- many recognized power is used in in War, their long asserted after Civil Court, ideas, ways,” Dilling- said the style dependencе in words 370, 374, 44 McLaughlin, 264 U.S. ham v. generally prevailing in the court-rooms. construing a 68 L.Ed. See S.Ct. was one of them. Chief Waite Justice obliged no York We are Illinois, 1877, New statute. Munn v. 94 U.S. prevent longer to hold that Hardy, 1898, 169 U.S. 77. Holden v. disposal rights was exhausted Knoxville free 42 L.Ed. 780 instance, non-statutory rulings, for 13, 22 in such Harbison, Iron Co. v. officers, execu- public contracts impressive as as that are also their future tors and receivers assigning thought-ways were signs that not, grounds public earnings will point constantly running towards one enforced,32 policy, in the doctrine or be compass. subsequent tussle specific equity grant will refuse in a opposing attitudes is disclosed tween to. improvident In- contracts. performance of Holmes dissenting opinions series of —with deed, a success- warned we have been which, lat as leader of dissenters29 — by able econo- commercial banker and ful terly, majority doctrine.30 have become the liquid- excessive passion mists that do, then, interpret the Con It will not kind of ity every make eagerness gressional reports, committee either —the immediately convertible property idea were the words men of the causes into cash —was thought as single "with but a and inflexible began in Depression which Great folly interfering to the of ever with con curb that something to we do unless tracts. everything, instant monetization of zest for judicial worship of Excessive let-alone- collapse.33 may profit economy then, away began, ism the 1920’s melt any repugnance to judicial former decisions, disappeared dur- and has bargain- free with legislative interference ing decade, Supreme last effects ing а blindness involved may Court.31 one’s own “Whatever con- community public opinion trying to save about the wisdom of —of —the be- Lately, we have duct of individuals. ignorant a folly it is and rash from mous the worker to a lumbia XIII tice.” he And, Paxton pressed L.R.A.,N.S., 1062, Ann.Cas.l912A, 487 prevailing Noble State Bank v. ple argued mum titudes ground ophy, at war. See a Court Holmes, shocked U.S. effect, cy, should, States 29 capitulation spoke Sometimes Germans, “thirty Wage for a 16 Mieh.L.Rev. vehemently encyclical, story turned its back on the views ex Supreme for to be of natural My in the expressed Blair, Bench, Pollock Letters this field is with the such economic reform Law of Philosophy Zane, time, unconstitutional, Pope years with whom we were then Noble the course to the wicked Court declared judiciary, decision, possible, accept living wage Rerum defended Court, law and natural German views majority State before the Haskell, 1911, legislation. Zane, excellently (1918) Bar and (1941), of Law denounced it as District of Novarum, announcing in a democra prevailed: Bank Legal of the in his fa- ideas case. told Philos United of the (1941) Social Mini- ideas 2cf. peo jus- Leo 219 Co- at- In 32 National Wealth President, Temporary tee, Hearings, Moore-McCormack ing the current anti-laissez-faire drift Fashions Berle and Minneapolis, tation of with Fischer Cir., cause for Matter 58 N.Y. not far below the 121 F.2d 336. one who likes cial Forces Certainly State drift of now Change, tain to last For 30 31 ^[32] 35 N.E. Informed gee See discussion prevailing proper scepticism, Bar will erode too some re testimony 442, 445, 450, opinion an address F.2d and Societal Worthington Ass’n, regret: Furness, Marquette Liberty pertinent Pederson, (1935) 186. National Economic forever, healthy scepticism concern- May 22, 1939, it, 23 L.R.A. 97. January 24, see pp. (1934). a of this Bank They may prevent Lines, surface. new other Bossard, much. cases Bliss v. Liquid Ralph before 371Ó, National Bank of et past, Planning, 14 becoming regard fashion, if we & al., opposing change Am.Rep. 273; 2 75 F.2d Trust W. 1942. Claims and That 3713-3724; Sociological the N. Cir., 1941, before the Lawrence, admire it. Hume v. Commit- Manuei, N.Y. a flood and ci- should, views is view cer- So- X. a ; gun slogans business “affected ed. Their were laissez-faire and public interest,” legislature “As rights natural individual. reaching revolts, so decides.34 In that conclu- claims on natural all absolute sion, more, have, denials courts once realized one were met with absolute side theory that what one life often on man does with his Hence the of the the other. affects all If took not the rest of us. is infected individual natural of the disease, many may victim- form: men negative others absolute ized. poverty, If he crime rights, contracts dire must nev- have inalienable the State may group may result large property, suffer.35 etc.” private and a er interfere *** And so bargaining.36 For fight it with free “In nu- against fierce irrational, oppress- something contract tyrannical than merous private parties; contracting affair jump of the ive men conclu- restraints may vitally all restraint affect the interests sion the absence of view; public. Once prevailing good was the the one absolute in itself and indeed ”39 good. period, long time medieval subsequently, granted was taken today unwisdom of Recognition overriding pub- that there was an social or individual liquidity or exсessive excessive aspect lic trafficking. individual Cf. a commitment ism at all mean does not Lines, Cir., Hume pa v. Moore-McCormack undue regimentation, or rigidity, emphasis Eng- Davenport, F.2d This Russell ternalism. Cf. Victory, public obligations private land 24 Fortune on the Would Be everywhere in was, exploited Here, persons as almost however 136-144. comp and, life, intelligent royal dynasts need for there is terests of dictatorial later, human “Most issues of oligarchy.37 an economic benefit romise.40 relationships are not enterprising result- and social A revolt of individuals Co., 1895, People York, Loan & Trust Nebbia New Choate’s For L. page argument, 532. Ed. U.S. A.L.R. 1469. lawyer Carter, and a conservative Carmichael v. Southern Coal arguing, bar, of of the leaders U.S. company, favor of a trust in 1327. behalf of 109 A.L.R. tax, constitutionality Blair, cit. of loc. See Paxton alleged (157 page 517): 37 See, Wingfield-Stratford, is g., 1 His “It U.S. e. appellant 498ffi; tory (1928) that counsel for of Civilization British its most Clark, this consider come tax—and of Business J. M. Social Control upon injustice (1926), form of monstrous 26ffi. —falls population per Property Cohen, two cent and M. R. Sov- States; ereignty, must (1927) but what re- the United L.Q. 13 Cornell cent, per printed Cohen, fact two think that in and Social Law paying (1933) but a trifle more than have been Order cent, per §>500,000,600 Cohen, [of of the tax- two M. R. The Basis of Con- tract, (1933) 553, annual income of the na- while of the es] re- Harv.L.Rev. deducting tion, printed Cohen, would be suffi- after what Law and The Social living people, (1933) furnish a 69, 75, cient to they Order receiving probably County been more Cf. Hudson Co. Water fifty per McCarter, cent.? time than At same 28 S.Ct. startling fact, impressive 560; and not another 14 Ann.Cas. dis by them, senting opinion also been receiv- adverted to ing has in Chrestensen v. Valen more of tine, more and the attention 122 F.2d country grow- people States, of the mean the Clark v. United —I large ing masses concentration diminishing interest, light in an ever number of wealth persons. It is of subse- impossible compare quent events, It was to avoid the the absolutistic arguments Joseph Choate, suggestion asserting some that there was connec- striking facts, Supreme and before the Court tion between it 1895 that impossible bring would should federal income tax also about point communism, Carter, around conflict which James form gather. ease, They political tax, same contentions would in the gently applied, that such intelli- finally dividing by reducing succeed in did great political two the undue country. parties wealth, help concentration of prevent At complaining party things of these communism and the breakdown last legislative ascendency

democracy. gained Pollock v. See Farmers’ Paine— variety.”41 should since Tom black-and-white We have traveled far champion people’s rights dogmatizers. early beware of the either-or hard-and-fast, civil- —proclaimed perfect unnecessary that ‘The to make a gov- is, it has all-or-nothing, complete ization the less occasion antithesis between * * * * rec- Sedgwick ernment. complete formal individual and freedom * * * legislation ognized that social governmental guardianship everyone. liberty preservation of the essential necessary But it is that individu observe measures, saw, he individual. Such alism, if utterly unrestrained, becomes self- free- may diminish promote rather than devouring.42 dom.”44 more,” “More and Macmillan said Lord 1935,43 “the political main issue science individual philosophy of When the 100% has come to be—not whether the State often soft vogue, the courts ism was They intervene regulation all devised pedalled considerations. daily of our lives but and read interpreted legal where the frontier rules ought line wisely most to be drawn between their own the influence of statutes under province activity of state process and that of policy. That public notions enterprise. But, individual largely On all hands unconscious. have been recognized said, now there was of laissez- often Holmes Mr. Justice faire, gave which judicial us no doubt dec policy-making our industrial in those strong supremacy commercial gave judges also them who decided us isions.45 many evils, slums repudiations other attendant also uttered verbal ** give must place regime. to a new legislation.46 But the demolition Fair Law, 153; to be Opinion by ty dividual’s by served, with his danger position fraud gain, ject wealthy contract? Finance mass of nearly ought every person counsels, flagrant See ^[42] remedy. individual which make, with all real freedom. some answered in the needs Mr. Justice “To was to redress in some to be Exchange remedy. also difficulty cf. but who nevertheless is all the very comparison classes to furnish in which from the individual eyes open inequality by put 260ff. Tulane L.Rev. full contractual Dawson, If these and capable plain upon exercise.” This income tax he is England, freedom unlimited contractual looked contract which he people same; can freedom, efforts were rеvenue, The view taken in French and German is Douglas, Democracy passed hardly matter of upon and not the victim of Economic were made to furnish as to there which binding with their of may yet 2d Ed. affirmative, danger and leave the its face. The ob- Dicey, the like which the make a fair bar- all full capacity deprive made to devise is it is assumed an himself ais tax law in Duress and pressure age, acting of placed 1914, 152, degree be so used is Law and generally, perpetual extension questions parting, little of allowed himself capaci- part an in- is means great cases by very in a pre- of a liminary 1914) Law and ess legislation, L.R.A.1918C, faire school which believes cific Cardozo, 57 Law it has a Mass. Book 11; Vegelahn Times of William (within Common vor of thing police who, I am not a beyond (1920) or better. ernment ibid. bank. He ‍‌‌‌​​‌​​​‌​‌‌‌‌‌​‌‌​​‌‌​​‌​​​‌‌‌‌​‌‌​‌‌​‌​​‌​‌​‌‍“is a 9.. Contract, supra. 46 ^[45] Am. (1921) For candid avowals that gee Law Company establishment 361-398, (1937) very paternalistic institution; Notices, force.” (1879); 92, 181, St.Rep. 443; the time of having proper e. Now am Law ought leaning said, And Other Treatise 37 S.Ct. 44 N.E. private Opinion ** g., replied socialist, Nature I (1879) 103, 113, 146-149; President Taft advocated See 483-494; argued Holmes, Holmes, J., etc. limits) Collected v. towards state socialism. Jensen, 1917, citizens can do as well Cohen, do to some of his critics Pringle, Ann.Cas.l917E, 900; 1077, of a [But] we have Howard Taft Guntner, 1896, 524, government reprinted * * * Things (Shriver, 1936) 10, nothing The Path of the must be England (2d Evidence Science 61 L.Ed. Thayer, paternalist, I am not 35 postal Legal Papers The Basis Judicial Southern Pa- The Life such a bank there is and (1937) L.R.A. the laissez- in but and The do Holmes, judicial A Pre- savings Dicey, passed (1898) (1939) run a Proc- 1086, U.S. any- 722, gov- 167 ed. fa- 7- stingy inadequate, My purposes through bargain (c) stat Congress, col- emphatic interpretation, leagues utory most also themselves is the cite what is, job judicial Kelly Our “the legislation.47 kind of describe as unusual case” of Kelly, possible, the aims 11 Cal.2d 79 P.2d 119 A.L. far as to enforce case, Congress. should, spend- instant R. in which an interest under indirection, carry allowed, by achieve thrift trust out what meant Copy assigned. to be protection of authors in Act, out, carry without important “property” It modification, judicial here involved is a creature of statute and legislation decisions found “right property.” not a common law of the let-alone-ist era. Head, Ch.D.(1879), In Powell v. L.R. 686, 688, argued part is of considerable interest to some note it was owner by majority support of the cases play cited its grant could a license for Copyright production their assertion Act without the consent alleged law, light because, must be read in the of an other common owners strong policy, in our tenant be embedded in common of a chattel has legal system, unfriendly any pleases. “restriction to use the chattel as he Jes- assignability”: (a) sel, R., rejected saying: free There is the argument M. declaring citation an Illinois decision “I am not at all inclined to extend regulating assign unconstitutional statute antiquated doctrines, which and barbarous wages ments of and salaries. Massie v. Legisla- partly set aside have been Cessna, 152, L.R.A., Ill. N.E. partly Equity, Courts ture N.S., 1108, Am.St.Rep. 234.48 To cite statute, rights to new created sympathy, such a case indicates which I wholly are of a character different from my colleagues entertain, doubt whether which these ancient prоperty to legislation, attitude that be Holmes, apply.” J., dissent- Cf. doctrines liberty contract, cause it interferes with Corrigan, U.S. ing, in Truax invalid; attitude United States 254, 27 L.Ed. A.L.R. has, decades, Supreme flatly Court recent recognition today legal We know (b) rejected.49 also cites our types of between different differences decision, Barnett, recent In re incompatible is not con persons where, following early 124 F.2d 1005 New law,” cept “equality intelli before (as obliged decisions York we were J., More interpreted. Hughes, C. gently Tompkins, do under Erie R. Co. v. People Tipaldo, New York ex rel. head 58 S.Ct. U.S. 587, 627, 56 1487), assign we held that an

A.L.R. 1445, and West Coast A.L.R. expectancy ment of will Parrish, effective, and cannot set Co. v. aside a Hotel 108 A.L.R. 1330. bankruptcy judgment trustee in or a credi adequately to unable ;' statutory for those Protection tor in that case no afforded must be contrary themselves policy, protect was it declaration nor system.50 Con- legal And when for civilized suggested that the consideration assign- wage prohibition Dickinson, ills 318, 319, 327, will cure the Adminis- propagated Ohicago Supremacy ments have and the trative Justice , * * *» 22; 209, (1927) 122, note note Law People of New York ex 49 Morehead v. law in the time of Rich- “What was the 587, liability Tipaldo, 56 298 rel. U.S. Lion on the de ard Ooeur 1445; 918, 1347, persons company 103 A.L.R. telegraph L.Ed. 80 Parrish, message Gray, 300 Hotel Co. was sent?” The West Coast whom (1900) 57 Law U.S. Sec. and Sources Nature 108 A.L.R. 1330. system 50 recognizes Paul, divers re Our Estate and Gift Federal Of. complete liberty (1942) note; Taxation of contract. and straints Among enforcement them are 33 and 34. notes up pleases. government tion, And backs contracts as to sailors’ rules liberty. cen- does mean that eighteenth An Laissez-faire sales reversioners. say- given has most its “inter tury explained up had State chancellor ferences,” “in persons but that State used to ing were that necessitous ways so terfere” of in shrank from in new at the demand free.18 the courts But employ- government dividuals. The of industrial recognizing the facts

Notes

notes trusts; spendthrift my colleagues Fortas, refusal enforce Curiously, cite stay Chicago, Assignments of a man to out of busi Wage the contract Yale severely allow arm to forever or to author ness which the L.J. off; punishment relying holding, of those who make on that cut cases criticizes pacts, p. (at 557) As to the use of stand etc. that “it suicide seems concludes insurance ardized contracts restriction short of doubtful has, copyrights, recognize been gress as in the case of “We that courts have expressed modifying policy, such a there is no reason disinclined to extend statutes why beyond opera- the courts should frustrate it. It has the direct common used, person been held that a included within tion of the words and that times Compensation provisions Act the of a Workmen’s this disinclination has been carried validly himself may cannot contract out far. But it that there seems us statute; re- courts reached that statutes that need a different treatment. prohibit Legislature sult even when the statute did not The has the policy waiver of the what be, such contractual benefits decide of the law shall legislation. will, the tion Wass v. Bracker Construc- and if it has intimated its however Co., 466; indirectly, 185 Minn. recognized N.W. that will should be Powley Inc., App. оbeyed. cf. Vivian & major premise The 170,177, Here, statute, Div. 154 N.Y.S. 426. where expressed conclusion in a reports legislative change the Committee enactment, show that induces the terms, intent to arrive at similar limitation on not be set out in is not bargaining adequate free discharge it is difficult an duty for courts why pay respect say: you for me to see we at, see what driving are you to that it, intention. but shall have not said therefore go on as before. I agree that the must not courts rewrite import statutes and recently into them what Supreme Twice Court has Congress think quoted desirable when remained language has approval silent. But there is a marked applied difference interpretation.52 that canon of I Congress the silence between ment and a state- duty My believe it is our to do likewise. purpose expressed of its colleagues say they willing to abide nicety, ground Congressional a middle between complete policy against assignability Congress saying nothing contingent copyright of a I renewal. fear shouting. The guiding principle was for- just missed a real opportun :51 mulated as follows ity Mr. Holmes to do so. Justice like, required by statute, Isaacs, Navigation see United States v. Black Co. Standardizing Contracts, Lines, Cir., 27 Yale L. Diamond 124 F.2d 508. 34; (1917) Llewellyn, Havighurst, Consideration, J. What Price Cf. Ethics and (1931) 704, Administration, Contract? (1942) 40 Yale L.J. 42 Col.L.Rev. 731f£; Goebel, Theory Trends 27-30. States, Contracts in the United States, 11 Tulane Johnson v. United 421; Cohen, 30, 32, L.Rev. R. L.R.A.,N.S., M. 163 F. Contract, supra. Basis of Hutcheson, United States concept 219, 235, “coercion economic 312 U.S. 61 S.Ct. pressure” has received overt rec Keifer & Keifer v. Reconstruction ognition Butler, Corp., 1939, United States Finance 56 S.Ct. L.Ed. note cf. applied Stone, 102 A.L.R. 914. has been The Common Law in the United many ways. States, “contract ‍‌‌‌​​‌​​​‌​‌‌‌‌‌​‌‌​​‌‌​​‌​​​‌‌‌‌​‌‌​‌‌​‌​​‌​‌​‌‍law” (1936) 4, For 50 Harv.L.Rev. court, recent decided case

Case Details

Case Name: M. Witmark & Sons v. Fred Fisher Music Co.

Court Name: Court of Appeals for the Second Circuit

Date Published: Feb 11, 1942

Citation: 125 F.2d 949

Docket Number: 123

Court Abbreviation: 2d Cir.