265 F.2d 925 | 2d Cir. | 1959
Dissenting Opinion
(dissenting) .
In his opinion below, Judge Bryan recognizes that it may be “incongruous to allow an author who has no widow or children to defeat his prior assignee by executing a will, the terms of which are in derogation of the assignment * * D.C.S.D.N.Y.1957, 158 F. Supp. 188, 194. In my view, such a result is not only incongruous but without legal justification. In the present case, the will did not purport to bequeath the renewal rights. It was silent as to them. For all we know, the testator may have assumed that his prior assignment would be honored by his executor. But the reasoning of the opinion below extends to a silent will as well as to one in outright derogation of a previous assignment. I think in both cases the assignment should prevail.
Under the present Act, the original term for copyright protection is twenty-eight years, with a further term of twenty-eight years upon renewal. 17 U.S.C. § 24 (1952).
This statutory scheme was created by Congress to protect the author and his family from the author’s own improvidence. Shapiro, Bernstein & Co. v. Bryan, 2 Cir., 1941, 123 F.2d 697, 700. But even though the intent of Congress was
As we have noted, the statute includes the “author's executors” in the class of persons entitled to apply for renewal and extension of a copyright. But this cannot mean that Congress intended the executor to take personally and beneficially, as in the case of a widow or child. “The executor represents the person of his testator * * Fox Film Corp. v. Knowles, 261 U.S. at page 330, 43 S. Ct. at page 366, 67 L.Ed. 680. Therefore, he clearly is to take only in a representative and official capacity in order to prevent the copyright from lapsing and to effectuate any bequest of the renewal right which the testator was entitled to make. See 261 U.S. at page 329, 43 S.Ct. at page 365. For example, if the testator left no widow or child, and had not previously assigned his renewal rights, he could properly bequeath those rights to a friend, and the executor could effectuate the bequest. But the testator here had nothing in actuality to bequeath. He had assigned his renewal rights, and his next of kin had assigned theirs. In equity and fairness, the executor should be made to take all steps necessary to see that his testator’s contract is carried out — a contract which was clearly “valid and enforceable” under the Fisher case.
In contrast, the opinion below, adopted by the majority of this court, permits an injustice to be perpetrated. It also reinforces an anomaly within the present statutory scheme. Because an executor cannot take office until the author dies, he is the only interested person who cannot join in a prior assignment of renewal rights by the author, and hence — under the reasoning of the opinion below — the only person who can absolutely defeat the rights of the prior assignee. Such is the result in the present case. But it seems highly incongruous and illogical to place the executor, and the people who take under the will, in a position preferred to that of the author’s widow and children. Surely this could never have been the result Congress intended. See De Sylva v. Ballentine, supra, 351 U.S. at page 582, 76 S.Ct. 974, 100 L.Ed. 1415; Shapiro, Bernstein & Co. v. Bryan, supra, 123 F.2d at page 700.
. The pertinent language is:
“ ~ * * the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author’s executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright. * * * ”
Lead Opinion
The judgment below is affirmed upon the written opinion of Judge Bryan, reported at 158 F.Supp. 188.