*2 the contemporary composer’s one of most Okun, Okun, New Fishbein & Maxwell compositions, a popular Boosey appellee & City, York for According work. to the provi- Hawkes. very the loosely sion of drawn 17 U.S.C. Thau, Wolf, Ross, Shirley Popper, P. proprietor a of inter alia a copy- Jones, City, appel- York & New for Wolf righted work” is entitled to lee Suchoff. copyright, renew the whereas the author York Au- Karp, City, Irwin New for or certain of the author’s surviving kin is America, Inc., amicus League of thors entitled to the renewal of most other curiae. works. Here both Boosey & Hawkes, FEINBERG, Before OAKES and VAN (Boosey), the Inc. music GRAAFEILAND, Judges. Circuit proprietor the initial copyright Orchestra, for Concerto and Peter Bar- OAKES, Judge: Circuit claiming tók are the to renew the presents appeal question This the copyright. Boosey argues that it is the composition rights posthumous work; whether a musical the of a proprietor Peter assigned by argues to which are the Bartók the work is post- not during performed and which is his life- The humous. trustee for Bela Bartok’s “posthumous” estate, Benjamin Suchoff, time is with- nevertheless argues as does meaning copyright Boosey is posthumous.2 work author, living, if the author or if 1. 17 24§ U.S.C. author, widow, widower, such or children be by copyright secured this title shall living, executors, then the author’s or in twenty-eight years endure for of first from the date will, the entitled his next of kin absence shall be publication, copyrighted whether the a renewal and extension of the author’s true work bears the lished name: posthumous clopedic, name or copyright in such work for a further term of anonymously or under an assumed any twenty-eight years application when for Provided, That in the case renewal and such extension shall have been any periodical, cy- or of work copyright duly regis- to the office and composite or other work year prior therein within one tered to the copyright originally which the by was secured expiration original copyright: term of thereof, any proprietor or of work further, provided That in And default of the by corporate body (otherwise copyrighted registration application of such for renewal assignee or licensee than as of the individual extension, any employer author) an for whom such expiration twenty- determine at the shall eight hire, proprietor work is made for copyright such years publication. from first be entitled shall to a renewal and agreement signed by appellant extension of the in such work for 2. Under 1949 twenty-eight Bartók, composer’s term of the further application when Peter estate, Boosey widow and the pay royalties such renewal and extension will period which, pursuant made to shall have been office to the renewal to estate duly year registered provisions will, pays therein within one Bartok’s Bela prior expiration original proceeds to the term of Mrs. Bartók her lifetime further, copyright: provided And That in the to her sons her and then appellant death. Should work, any copyrighted prevail royalties presumably case of ing other includ- will equal paid a contribution individual author to shares to Mrs. be two sons. wholly family’s Bartók and her cyclopedic periodical proprietor, Boosey, or to or other com- has been work, work, posite scrupulous protecting the author of such if still the Bartók widow, widower, living, case. or children of congressional intent he solely to would holding confers that right Judge Owen’s not posthumous. the work Bartok hold must reverse. Boosey. We Hawkes, Inc., 382 Boosey F.Supp. & composed was Orchestra Concerto (S.D.N.Y.1974). We find August 15 and Octo- between by Bartók controlling weight give must to the the conduc- a visit 1943, after ber *3 case, purpose in this of first legislative Bartok’s hos- Koussevitzky to Serge tor and thus reverse. impression,3 suffering was from Bartók room. pital to take his life in leukemia, was agree Judge with Owen that the We The Concerto for Or- period 1945. in 24 is rationale September, § by the Bos- performed fully first aware of the was We are dan- clear. chestra conducting, Koussevitzky upon isolated bits of relying leg- Symphony, gers ton 1944, 2, Symphony in history statutory 1 and in reconstruc- December islative tion, on again J., Jackson, concurring The Concerto was Hall, Schweg- Boston. on December 29 in Boston Brothers Calvert Distillers mann performed 1944, Carnegie 384, 395, at Hall in and 71 Corp., and 13, 1945, January 10 and (1951), there excep- York but are L.Ed. New radio, over the rule. proving On March broadcast tions and Congressional at Committee Concerto, Bartók completing After Hearings before Joint Committee on Boosey in the work to his assigned Patents, following colloquy took publishing con- their 1939 to pursuant the chairman and place between William prepare the orches- Boosey was tract. Jenner of New York on the Allen sub- the full score within print and parts tra whether to extend the author’s ject printing The was be six months. copyright for an additional fourteen wartime but conditions England, done years: some completion, as did rewrit- delayed premiere. after the Thus Bartók I The Chairman: would like to ask receiving correcting and still was Bartók question. Would not you June, 1945, as late as proofs printer’s lisher, ternji if a third given, were Printing his death. months three a contract with the make author stipu- was manuscript completed not only lating that not was he to have copyrighted by Boosey therefore and publication control the first six months after March until twenty-eight years, but that he should death. Bartok’s it, and the publish it, control held year copyright term first contract, original under the for the by 17 defined U.S.C. Boosey, § fourteen-year period extension and if March, Boosey 1974. Both expired another extension of give fourteen applica- filed Bartók Peter for the years, then second fourteen- Copyrights per- Register tions. year period? renewals, ex- filing of both mitted done, Mr. Jenner: It is never and I adjudicate between declining to pressly have some doubt about whether it le- them. gally could be done. But I should be felt “constrained to con- Judge Owen glad provided to see that so for that it is a Orchestra that Concerto clude” could not be done under the law. purposes work” for “posthumous Representative put Law: Then it in “published” it was finding the bill itself. Bartok’s death. copyrighted itself, Put it Mr. Jenner: in the bill “posthu- on the definition relied Owen done, say that it so that Register Copyrights cannot used mous” the author is certain to have history. that ex- musical He examples and concluded, provision age tension as for his however, he to or a that were look 114.1, agree parties such a case. M. The Law of All at ed.), (1974 is in accord. for his widow and his chil- A work” is provision one of the exceptions three to the renewal statute. dren. Thereafter, only House re- The definition “posthumous” Committee legislative out the 1909 Act porting called for one fulfills purpose of renewal, and in authors year protecting connection there- their1 families is following say: had the in the narrow with situation—not present here—where a copy- contract for Committee, Your after full consider- never right was executed by the author ation, decided it was distinctly to during his life. See 2 Nimmer, M. supra, advantage of the pre- author to 464; Kupferman, Renewal of period. the renewal serve It infre- Copyright, Colum.L.Rev. 712 (1944). quently happens that the author sells In that the estate case can make its own copyright outright a publisher thereby protect contract and itself. For comparatively small sum. If the *4 example, had work here been found proves to a great work success and effects, among Bartok’s his widow and beyond lives the term twenty-eight of children could and presumably would years, your committee felt it have their own arrangements right be the should exclusive published. have it In that logi- case the term, author take renewal excepting cal basis for the widow and law should be framed as is the statutory children from protection is law, existing so that he could not be that, original proprietors, as they would deprived right. of that it. have no need of Kupferman, See su- H.R.Rep.No.2222, Cong., 60th 2d Sess. 14 pra, 44 Colum.L.Rev. at 715. Nimmer, See M. The Law of at 117.21, case, however, § this § at In where (1974 ed.). 493-94 congressional This copyright contract was executed before give the purpose death, author his fami- the author’s the family has no —to renewal ly right recog- been other protection means of than the stat —has courts, by the nized although not in any utory right;4 equally this is recent case. See Harris v. Coca-Cola the work true whether is available Co., 73 F.2d (5th 1934): Cir. Yet the print or not. district court’s “posthumous” of definition would create period The second intended, is not as legislative discrimination between fam incident of the first benefit two equally unprotected in these sit ilies the then of owner of the expiring Where, here, uations. death occurs copyright, but as a recognition second sale, but before publica extended the law to the author of tion, agrees commentator one that “no proven has permanently suggested any possible has reason one by giving directly meritorious him, rights of the statutory why the benefici alive, not, if or if widow, to his chil- be defeated in aries should such an in dren, next of kin or executor Bricker, Renewal stance.” and Exten supplementary copyright upon the Copyright, sion of S.Cal.L.Rev. 38- terms stated in the statute. Kupferman, (1955). See supra, 44 Co also See White-Smith Music Publishing at 715. lum.L.Rev. Goff, 187 F. (1st Co. out, points legislative As Nimmer 1911). Supreme As the Court said in protecting authors their purpose Fisher Fred Music Co. v. Witmark & not so pa- derives much families from a Sons, 643, 653-54, view toward authors as a class ternalistic (1943), 87 L.Ed. the “basic consider- economic reality as from policy underlying ation the was the provision” property designated copy- of “the author the form ‘copyright’ his to sell real losing right, property without unlike and other renewal interest.” personal property, its forms only own its interests in supra. have mind purposes see note 2 would But For it renewal. case has to be assumed that “posthumous,” as did Judge accurate incapable Owen, by nature very correlating it prior particular to its ex- to one monetary evaluation definition “publish,” of the word a term ploitation. which it- variety self has a of definitions Nimmer, supra at 462. This M. Copyright Act depending upon the con- for all equally salient families' purpose text.5 Owen used the definition sale is where “posthumous work” as a work “pub- short, In where the lifetime. author’s after the lished death of its author,” cit- purpose of the statute is to legislative Ringer, B. Renewal of Copyright, an author and his protection extend Office Study No. 31 at 128. makes better sense to read the family, also relied on a quotation He from 2 M. exception work” as a with- Nimmer, supra at (refer- 463-64 unnecessary protection where holding of dictionary to the ring definition of “post- itself, protect can rather than family humous”). But Nimmer states illogical discrimination between as an “publication occurs when by consent of equal need protec- who are families owner, the original or tan- tion. copies gible sold, of work are leased,
loaned, given away, or otherwise made available to the legislative purpose general public Given this . .” compelled 1 M. not feel to define the do 194-95.6 In *5 sufficiently Holland, Corp. a definition technical that the American Visuals lead- 5. See 1956), chapter treatise takes an entire which states F.2d Nimmer, supra explain to mantically, it. 1 M. ch. Se- 4. “publication” is clouded term seman- the moreover, “posthumous” word the where the term is defined for tic confusion carry a not even with it does publication, connotation of purposes, and that we have different here an being limited to describe the last- one-word-one-meaning- illustration only family to one of a and so bom after born his fallacy. Fowler, Dictionary death. See H. A father’s of footnote, Judge in Frank stated a As (2d ed., English Usage 468 Modern revised n.2: at 742 1965). was indeed Bartok’s Concerto a crea- perhaps could Such confusion avoided conceived, very bom and much tion by using words in the different different con- during progenitor’s known to the world its life- is, device in texts. . . Another some Certainly when Bartók time. delivered his contexts, the either to cut off initial letter of publisher provid- a work to his ing under contract (so “publica- that we would the word have performance publication he was “ublication”) spell or to tion” and the word considering dealing that he was with a (yielding “publication” and backwards “noi- says posthumous work. As Nimmer in refer- tacilbup”). “posthumous” provision, ence to the opinion goes on to state The only protection common law where is [that author, preference proprietor over of require sought] considerably courts will instance, necessarily in this his widow open holding before dissemination that more (or kin), and children executor or next of place deprive publication has taken so as to justified posthu- in the case seems least it, rights of the material of the creator in precisely publica- mous works. It is (b) a where certificate has than family tion of such works that the author’s plaintiff claiming and the is been obtained may rely support. financial most It fur- publication to enable him to sufficient main- ther to be seen whether the remains courts action on the federal' statute. tain an is will hold that work if it is Id. at 743. publicly during disseminated the author’s “publication” published The definition of in in a 6. 26 of the lifetime but not technical § only fixes the date when Act sense until after the author’s death. In view begins questionable provi- “publi- to run and does not define rationale for this Nimmer, sion, supra possible legislative oversight itself. 1 M. and the cation” at renewals, deceptively simplistic including among proprietor It would be it 193. to con- light dictionary justified 24 of the Act in the it would seem that a construction is strue incorporate “publication” among posthumous which which only definitions includes works “posthumous” meaning public into the those which have received after death no applied to authors’ works. Neither Web- form dissemination as au- dictionary any other definition refers thor’s life. nor ster’s concept “publication,” Copyright Act 2 M. at to the 464-65. pass We need not on the had revisions.8 completed the Con- case Bartók occurred; has publication when certo, performed, question it heard had exe- had simply point defining out for its we copyright, a contract cuted one work” as is not proofs, all before published had corrected until after the author’s death tangible copies published While had his death. implicit problem with it the what public to the carries not been distributed the implicit as well as death, dan- parts publication orchestra Bartok’s had been unscrupulous an could ger least members of the distributed delay publication in order and the Symphony general public purposely Boston rights. Concerto both in obtain had heard concert work, as they on the radio. Judge Owen it, also substantially relied on the heard was as Bartók in- heard, provided by Register form proofs Copy it to be and the tended (Circular IB) “post his revisions. This is not the defines contained published as a “work where a humous” first case never released a after dissemination, copyrighted the death of the public although work for au yet And thor.” performed occasionally,7 he have Office has authority give opinions no that when the define so distributed aft- death, legal interpretation terms and its composer’s public er the never on an he knows whether intended substantial say, designation publisher’s “op. posth.” we Needless to do not subscribe to the can publication views on pressed ex- as the last word in musical works be relied the charac- dissenting opinion, composition. Paradoxically, issue terization itself, Concerto need not reach. Bartok’s for Orchestra “posthumous,” the dissent would make was analogized
7. The district court Concerto designated posth.” “op. as an its Chopin’s Major Frederic Rondo in C Two lisher. Pianos, Owen, Opus himself a com- Finally, 21-year the dissent’s reference to the poser, published relates Rondo was delay publication Chopin’s Variations “posthumous” Chopin’s work six very Air Piano on a could for the German well *6 though previously per- it death even had been example danger prime Copyright be a of the of by composer approximately formed years the 20 by publisher purposely delaying Act abuse these earlier. From facts the court con- rights publication to secure renewal to which “posthumous” term cluded that the had been family would otherwise be author’s entitled. internationally publication defined in terms of Judge Owen himself states that 8. Peter Bartók years, Chopin for at least 120 in died illogically” argues “not that the work here in F.Supp. 382 at 884. question does not even to conform the diction- True, Chopin work both the and the Bartók ary “posthumous,” light definition of of performed respective work had been in their performance prior public composer’s to the its Chopin authors’ composed lifetimes. The Rondo was death. prior years Chopin’s 21 to death 201.2(a)(1) provides 9. See 37 C.F.R. § which in by played afterward, and was him soon but part: relevant manuscript by was thereafter laid aside Chopin for not Copyright Office, however, reasons known. It was not The does not given any publisher. arrangement No making comparisons undertake the of of publication by Chopin work copyright was deposits similarity to determine life, manuscript works, in his and give and legal associated opin- between nor does copyright Chopin’s Rondo remained or ions advice on such matters as: property manuscript (i) until his death. The validity was The copyright or status among those later found of numerous other other than the facts shown in the records of by published Office; a friend works named Julian Fon- tana, arranged publication (ii) persons, who of these The whether in con- cooperation family Chopin’s with alleged works in in copyright nection with cases of fringement, in- 1855, composer’s six after the death. contracts between authors and emphasis publishers As for 2 note of the dissent or other matters of a similar na- compositions upon practice numbering ture; publication, according (iii) scope date of to the we do not protection The and extent of system, artificially by foreign consider this devised interpretation works countries or themselves, publishers objective foreign to be copyright or rele- or opinions; laws court determining policy (iv) sufficiency, vant in the intended of 24§ The extent scope Act. Nor compliance copyright do we believe that with the law.
947
decided10
to make a fortress out
never before
should not
not
of the dic-
issue
controlling weight.
DeSyl
tionary; but
remember
given
See
stat-
Ballentine,
570,
78,
always
purpose
351
have some
utes
va v.
or ob-
577 —
974,
(1956).
accomplish,
ject
ceptions § occurred, that somehow may be made this decision will ing” many years has re- voiding copyright sult in performed, the work is renewals distribut- made assignees at the expense of copyrighted originally; therefore the au- ed family thor’s is based on right may beyond vest the overly the renewal children; gratuitous broad and of the author’s there assertion in a may life dis- opinion, trict court Von Tilzer many heirs difficult locate. In a v. Jerry Co., work, Vogel 191, Music 53 periodical cyclopedic presuma- F.Supp. 196 (S.D.N.Y.1943), aff’d sub bly the rationale renewal nom. Gumm v. Co., Jerry Vogel Music (2d the inconvenience of 158 F.2d needing to avoid 516 1946); the many join contributors actual source of in order Cir. the as- work, inapposite sertion is the context although renew entire of Toba contrib- Fischer, Inc., contributions, 57, can renew individual ni v. Carl (2d utors 60 denied, raising Cir.), cert. 305 question whether U.S. proprie- (1938), tor in the event of such an denied to individual right who fail to renew a works, renewal has to renew those such grave conveyance to sue for the question doubt. Ring- See B. void Gitlin, registrations P. Copyrights (1965); copyright er and 60-61 of oth Nimmer, supra 2 M. 114.2. ers. Commen- agree tators the provision for re- Mindful of the dissent’s warn rights for “corporate (oth- newal body however, ings, rely on the well-estab assignee than an erwise or licensee of lished doctrine that the copyright title author)” individual is practically procured be held in trust for the meaningless, Ringer Gitlin, see & supra the persons benefit of who are rightfully 42, except at 59 n. as a statement entitled thereto. Stern, Harms v. 229 F. corporate assignees of a copyright, as in (2d 1915), Cir. vacated on rehear case, are not entitled to renew the grounds, on other (2d F. 645 Cir. copyright.11 M. 114.- 1916). See Silverman v. Sunrise Pictures 3, at 469. As for employers’ renewal Corp., (2d 273 F. 1921), Cir. cert. if those rights, paid who have employees denied, create a work were not able to renew (1923) (title L.Ed. 1219 held in trust by copyright, it would be profitable, less sisters for class of kin); next of Maurel example, films, to make and it would Smith, (2d v. 271 F. 1921) Cir. be difficult the case where many em- (title joint held in trust author as work, create a ployees such as a Disney owner); joint Edward B. Marks Music cartoon, to determine who the author or Corp. Jerry Vogel Co., Music are. The “posthumous authors work” F.Supp. 135 (S.D.N.Y.1943), aff’d, 140 appears exclusion to us consistent with 1944). F.2d 270 To avoid any other exclusions from 24 as we possibility of invalidation of have read that section. copyrights previously proprie Most of arguments made in the tors limited class of those in Boo dissent are answered in the course of sey’s position here reliance on the
foregoing opinion. The quarrel dissent’s Office’s Circular No. “philosophy” with our is evidently a effect of this decision shall be prospec *8 quarrel with the House Committee is, re- tive only. That our decision ap will port quoted on the 1909 Act in opin- our ply only to future and pending renewals, (and Nimmer, in ion 2 M. supra I, App. parties here, as well as to the and will 967-77) at and with the underlying operate ra- not to legal void the title to re tionale renewal concept as set copyrights by newal held those proprie Nimmer, in 2 M. supra 113, forth Boosey’s Instead, § at tors in class. the au- original respect not an 11. A mere licensee claim with to a licensee in the exclusion renewal, copyright, appears very ambiguous meaningless. much less its 1 M. statute Nimmer, 61, 114.3, 55, supra 468 n. §§ so that husband, thoughtful executed a will in children, widower, if “widow, thor’s royalties left the from copy- he all such au- living, or if be the author renewal copyrights rights trust widower, be not or children widow, thor, remainder, widow with the upon for his executors, inor the author’s then living, death, Peter, to his son the appellant her will, kin” his next of of a absence the Apparently, appellant is unwill- herein. own- equitable the to be deemed shall for his to wait remainder to ing accrue. have their rights and the ers of legal proprietors the against remedy asks this Court to He declare that ap- un- are entitled they to has rights right no pellee publisher the to renew here.12 decision our of his father’s der the works and pay royalties all following
to continue
judgment
Instead,
reasons the
renewal to
mother.
above
such
he
For the
right of
claims the
renewal with his
reversed.
brother,
with the
mother
result that
GRAAFEILAND,
Circuit
VAN
widow,
Bartok’s
to whom
Bela
the com-
(dissenting):
royalties
all the
poser
left
her
lifetime,
end
accomplishments
up getting only
will
whose musical
one-
As one
mastery
“Chop-
them,
the
barely
remaining
go
beyond
third
two-thirds
cudgels
appellees
sticks”,
up
appellant
the
and his
going
I take
brother.
I
However,
injustice
I
the
since
to Mr.
diffidence.
believe
Bartok’s
with some
being wrongly
results
this case is
widow which
from the majority’s
believe
decided,
respectfully express my
of Mr. Bartok’s
I must
frustration
wishes is nei-
required
justified by
nor
the Copy-
ther
dissent.
Law.
right
place
To
opinion
my
brothers in
provisions governing copyright
re-
proper perspective, one should bear in
newal are contained in
24 of the Copy-
the contest
mind that
herein is not be-
(17
24).
Law
right
U.S.C.
This pro-
penurious family
tween
a de-
part:
pertinent
vides
composer and an “unscrupulous”
ceased
it is between a
publisher;
son
the case
any posthumous
and his
“That
Bartók,
Bela
as a loving
mother.
which the copy-
Producing
Shows,
Epoch
Corp.
seeming
quotation
v. Killiam
relevance
12. The
Inc.,
(2d
1975).
Frankfurter
featured
F.2d 737
Cir.
from Mr. Justice
disappears
recognizes
when one
it was
dissent
throughout
The dissent
refers
to “widows”
determining (affirma-
made in the context
“distraught
pictures
negotiat-
widow”
tively)
issue whether an author’s
assign-
with the
for the sale and
assignable
copyright renewal
at all
obtain a
rights.
ment of renewal
Most authors or com-
expiration
agreement made before the
an
posers,
suppose,
we should
like other
testa-
original copyright
term. Fred Fisher Mu-
tors,
rely
family’s
others
act on their
Sons,
318 U.S.
sic
v. M. Witmark &
Co.
behalf; Congress,
contemplated
when it
exer-
(1943) (5-3
deci-
63 S.Ct.
rights by
family
cise of renewal
an author’s
however,
significant,
sion).
It is rather
assignment
the case of an
in which the author
agreement
is not valid if the author
an
such
term,
original
does not live to the end of the
term,
say,
the end of the
that is to
dies before
evidently
was not concerned about
undue
family
of the author’s death
in the event
disadvantage
“distraught
widow.” We do
assignment.
and clear of the
Miller
takes free
think it was so concerned
in its definition
Daniels,
Inc.,
Corp. v. Charles N.
Music
Similarly,
of what
is a
work.
(1960)
Music Copyright, 29 S.Cal.L.Rev. (1955): “. published after the death
of the author.” posthumous “A work is one which is published subsequent to the death of English (1933): The Oxford Dictionary its author.” writing: a book or “Of Published The Law of Copyright after the death of the author.” (1975): 114.1 Johnson, Dictionary of the English Language (1829): “The accepted dictionary definition “Done, had, published after one’s ‘posthumous’ used in this context death.” is ‘Published after the death of its Third Webster’s New International author, posthumous poems’.” as Dictionary (1971): WagnalPs Funk & Standard Diction- “Published after the death of au- its ary (Britannica World Language Ed. thor, poems.” 1963):
951
of statutes.’
Shaw Dreyfus,
au-
v.
after
172 F.2d
published
.
.
Cir.),
(2d
denied,
death,
cert.
a book.”
as
thor’s
907, 69
Dictionary
English
Oxford
Shorter
(1949); Banks v. Chicago Grain Trim-
(1933):
mers,
459, 465,
88 S.Ct.
writing:
or
book
.
“.
.
(1967);
L.Ed.2d 30
United States v. Pel
the au-
death
after
Published
ler,
170 F.2d
(2d
Cir. 1948).3
1668.”
thor
In United States
Blasius,
for the Cre-
Berk, Legal Protection
Cir.), cert. dismissed, 393 U.S.
(1970):
7.3
at §
Musician
ative
course, simply publish- which is one “It must be legis- assumed ‘that the of the author. after death ed expressed purpose lative the ordi-
nary meaning’ of words used in the
omitted],
statute
and where
[citations
Dictionary (1927):
Century
The New
they
sense,
have a basic and usual
published
.
after the death
“.
.
no
they require
legislative
resort
author,
(as,
posthumous
history.”
book).”
brothers, nonetheless,
My
rely heavily
Ency-
Century Dictionary
congressional dialogue which
certain
on
(1895):
clopedia
length.
at some
This discus-
quote
they
aft-
appearing
existing
“.
taking
debate then
concerned
sion
of that
or cessation
the death
er
Congressional
the 1908
Joint
place
due;
origin
especially of
its
new
proposed
on whether the
Committee
the death of
published after
books
long
for
provide
non-renew-
should
law
author:
term
renewa-
or a shorter
able
works.”2
Arguments before the
one. See
ble
Patents
on
of the Senate and
Committee
Having established the existence of a
Representatives Conjointly
on
House
accepted
commonly
and well established
Pending Bills to Amend and Consoli-
meaning
Respecting Copyright
Acts
date
works”, Judge
applied
Owen then
Congress
(1906-8).
opted
for the
accepted
rule of
equally
and established
time,
specified
the same
At
interpretation, viz.,
latter.
statutory
popu-
“The
import
in which the
accepted
ordinary
of words furnish-
situations
lar
four
interpretation
rule for the
would not
general
apply post-
of renewal
es the
rules
—
points
publishers prior
1668 refers to the earliest known
out
1. The date
to his
Bidou
death.
meaning.
of this
Chopin’s
occurrence
the Piano on a
“Variations
that
Air”,
by Haslinger
published
German
phrase “Op. posth.” (post-
2. The abbreviated
death,
Chopin’s
had been in
two
work)
appears
many pub-
humous
Haslinger’s possession
In
since 1830.
compositions
every
lished
is well known to
posthu-
event,
a work as
classification of
Equally
student of music.
well known is the
instance
in each
determined
mous was
opus
many
fact
numbers
classical
publication.
date
compositions
assigned by
publishers
were
according
publication,
to the dates of
respect
my colleagues,
3. With all due
I do
many of which were after
the death of the
majority
not believe
statement
in the
composer.
example,
compositions
For
opinion
Judge
Owen concluded “that were
Chopin
through
published
74 of
were all
solely
congressional
he to look
intent he
posthumously.
Bidou, Chopin
numbered
posthumous”
would hold the work not
correct-
ly interprets
Judge
holding.
Owen’s
This cre-
regarding
be the
inference
Whatever
situation
ates an unfair
Owen in-
major-
Chopin’s
terpreted
Rondo discussed in
7 of the
the statute
n.
in a manner which he
contrary
ity opinion, the fact
to be
remains that some of Cho-
believed
to the intent of the
pin’s posthumous
Congress.
works
were
hands of
*11
(Emphasis sup-
.
.
.
works,
works,
such
composite
works
humous
plied).4
by
corporate body
and
copyrighted
copyrighted by
employer
for
works
short,
agree with the commenta-
I
In
such works were made for hire.
whom
23, 39, supra, who
in 29 S.Cal.L.Rev.
tor
of the Joint
From the outset
Commit-
nothing
in the
said,
there
“.
deliberations,
it was obvious that
tee’s
Report
any judi-
or
statute, Committee
exceptions
given
were to be
these four
which would indicate that
opinion
cial
ordinary
than
treatment
works
different
works was intend-
posthumous
the term
the copyright
insofar as
copyright
of
ordinary
but its
and
anything
have
ed to
However,
concerned.
I find
term was
meaning.”
usual
language which the ma-
nothing in the
significantly,
and most
Finally,
anywhere
or
else in
jority quotes,
itself has
Copyright Office
States
United
of the Joint Committee’s hear-
reports
definition as
used the same
and
adopted
which indicates
the term
ings,
If we exam-
authorities.
cited
the above
given
works” was to be
“posthumous
office,
of that
we see
records
ine the
from
meaning different
that which it
(1953) “posthu-
No. 15
in Circular
viz.,
years,
for hundreds
works
had had
are defined as “works
works”
mous
published after
death of the author.
copyrighted after the death of
and
lished
definition is
identical
the author”.5
Hand was
I cannot believe
Copyright
in
Office’s “Cer-
contained
and com-
with this traditional
unfamiliar
Registration of a
Claim
tificate
wrote
accepted definition when he
monly
This is a “contem-
Copyright”.
Renewal
Shapiro,
&
v.
in
Bernstein
Co.
opinion
long-continued construc-
and
poraneous
(2d
1941).
697
Cir.
His
Bryan,
by
agency
the statutes
tion of
works” as
description
them”, Mazer v.
to administer
charged
original copyright
which the
“those
201, 213,
Stein,
74 S.Ct.
347 U.S.
by
out
someone to whom
taken
has been
(1954),
630
and courts
98 L.Ed.
passed
publi-
literary property
ordinarily “give weight to the in-
should
therefore,
was,
my opinion,
in
cation”
ambiguous
of an
statute
terpretation
of the same defini-
a reiteration
simply
charged with its administra-
agency
tion.
Ballentine,
v.
351
DeSylva
tion”.
discussed
Judge Hand
974, 978,
as composite
same breath
works
(1956).
copyrighted by an
works
em-
works
such works were made
whom
for
ployer,
course,
my brothers are correct
Of
cover
hire,
said that these
“those
interpretation
stating that
‘proprietor’
cases
given
should not be
Office
not the author of
...
Yet,
weight”.
before the
“controlling
It seems rather obvious that
the work”.
Office are
guidelines
discussing proprietorships which
he was
aside,
thought
giv-
should be
some
swept
during the
life-
being
author’s
into
came
being swept with them.
what is
en as to
language
with the
This accords
time.
wonders,
example,
many
how
One
9)
provides
(17 U.S.C. §
9§
depending upon
children are
widows
part:
copyright renewals
from
filed
royalties
existing guide-
with the
any work
in accordance
proprietor
author
“The
copyright by
“A renewal
subject
this
lines.
administrators,
thereto is void and
executors,
not entitled
person
title, or his
by subsequent ratifica-
cured
have
cannot
assigns, shall
Times,
Ledger
Seidel,
New York
is more the interests of clearly authors lie for the sale assign- with question upon one side of rather rights. Giving ment of renewal full rec- the other. If an than author cannot ognition to the increased worldliness of effective assignment make an of his what was once described as the sex”, renewal, “weaker be worthless to him hardly be seriously it can contend- when he is most Nobody need. good ed that widow is in as a position pay an would author for something he the merits to evaluate of a musical com- sell. We cannot cannot draw princi- position as was her husband who com- ple of law from the familiar stories of it. does posed Neither she have as com- garret-poverty of some men of literary plete knowledge and accurate of the mu- Even if genius. so, we could do publishing sic field.8 say that cannot such men would re- gard with favor a rule prevent- of law course, Of a widow can wait for twen- ing them from realizing on their assets assigning ty-eight her *13 they are when most in need of funds. She, But will she? to renew. like her Nor can be unmindful of the fact husband, put groceries must deceased that authors have themselves devised today. table Insofar as the safeguarding of means their interests. concerned, my the decision of brothers not have We do such assured knowl- the value of what he reduces has to sell edge authorship, about particular- when he probably at the time is most in ly song writing, about psycholo- need.9 gy gifted of writers and composers, as I see no compelling reasons why justify as judges us in importing resolution of these differences cannot Congressional legislation into a denial await the considered judgment of the of to authors the freedom dispose Congress which has been working on property possessed their by others. revision of the 1909 Copyright Act for authors While have habits mak- years. number of Justice would then want, intermittent ing for they may Bartók, accorded to Mrs. and her spirit hus- no independence have less band’s wishes would be fulfilled. In which would resent treatment of them short, may again if I quote Mr. Justice as wards under guardianship of the Frankfurter, this time from opinion law.” in Fisher Co. v. Sons, Witmark & I believe Owen’s L.Ed. decision was correct, (1943): I would affirm. promotion production 8. “If of artistic pro- Mr. Bartok’s contract as a with his overriding purpose copyright, following royalties: vided for the whole is the regulation of transfers in the au- selling price copies; of all 15% predomi- should be concerned thor’s interest purchase from the hire or 15% 20% nantly that can with revenues be realized for material; orchestral relatively creation, soon after the author performing right fees; 50% 662/3% receiving prospect of since the reward in performing right fees from 70% stage performances; 80% probably negligi- will the distant future have production. on an author’s Little ble effect royalties and fees from mechanical 662/3% adaptations; paid to concern should be revenues that will only to the author’s heirs.” accrue royalties reproduction and fees from 50% Curtis, Protecting in movies Authors and television. expressed Bill 203 and Revision the Alterna- No one has Transfers: dissatisfaction Symposium, monetary (Ascap arrangement. Law with this tives twenty-one, 1971). Number