Cite as 450 F.Supp. 59 (1978)
first publication, and may be renewed for an additional term of 28 years, upon the application of specified persons. The first proviso of Section 24 permits renewal by a proprietor who initially copyrighted the work, provided the work falls within at least one of the following four categories:
(1) a posthumous work;[1]
(2) a periodical, cyclopedic or other composite work upon which the copyright was originally secured by the proprietor thereof;
(3) a work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author);
(4) a work copyrighted by an employer for whom such work is made for hire.
As to all other types of work, the second proviso of Section 24 permits renewal by the author or his designated heirs or representatives.[2]
None of the terms used in the first proviso is defined in the Copyright Act, although 17 U.S.C. § 26 defines “author” as including an employer in the case of a work made for hire.
In the case of a “work made for hire,” only the employer or its successor may renew the copyright. Shapiro, Bernstein & Co., Inc. v. Bryan, 123 F.2d 697 (2d Cir. 1941). In the case of a “composite work,” the second proviso of Section 24 specifically provides for renewal by the author or his successors, assuming, of course, that the author was not an employee and that his contribution is distinguishable from the rest.[3]
- ↑ The Court of Appeals for the Second Circuit would apparently define a posthumous work as one which
1) was first published after the death of the author, and 2) on which the copyright was first assigned after the death of the author.
Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941 (2d Cir. 1975). See Nimmer on Copyright, § 114.1.
- ↑ The rationale of favoring authors over proprietors was explained in the House Report in connection with the recent revision of the Copyright Act:
“It not infrequently happens that the author sells his copyright outright to a publisher for a comparatively small sum. If the work proves to be a great success and lives beyond the term of twenty-eight years, your committee felt that it should be the exclusive right of the author to take the renewal term, and the law should be framed as is the existing law, so that he could not be deprived of that right.” H.R.Rep.No.2222, 60th Cong. 2d Sess. p. 14.
And in White-Smith Music Publishing Co. v. Goff, 187 F. 247, 251 (1st Cir. 1911), the Court stated:
“There are at least sentimental reasons for believing that Congress may have intended that the author, who according to tradition receives but little for his work, and afterwards sees large profits made out of it by publishers, should later in life be brought into his kingdom.”
See also Nimmer on Copyright, § 113.
However, the author may assign the renewal right. Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 63 S.Ct. 773, 87 L.Ed. 1055 (1943). Nimmer on Copyright, § 117.2.
- ↑ In the Copyright Act of 1909, as originally worded, Section 23 (renumbered as Section 24 in Title 17, U.S.Code) permitted the author to renew the copyright in a contribution to a composite work only where he had separately registered a copyright on that contribution originally:
“* * * That in the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopedic or other composite work when such contribution has been separately registered, the author … shall be entitled to a renewal … (Emphasis supplied).”
In 1940, this section was amended to eliminate the underlined clause, and thus at least literally permit renewal by authors whether or not the copyright in their contributions had been separately registered.
However, defendants state that “The law concerning the right to renew a contribution to a composite work that has not been separately registered is most unclear.” Defendants’ Brief, p. 14. And Nimmer agrees, stating
“It is undoubtedly correct when the individual contribution originally bears a separate copyright notice in the name of the author. Where this is not the case, however, it cannot be stated with certainty that the author has a right to claim renewal in the work even though he was never owner of record of the work in its original term of copyright.” Nimmer on Copyright, § 114.2.
If authors who had not separately registered claims to copyright on their contributions to a composite work were not entitled to renewal, there could be no difference in consequences, whether or not the work was made for hire. In any event, it is settled that the renewal right is never extended to employees whose contributions were produced for hire. Fred Fisher Music Co., Inc. v. Leo Feist, Inc., 55 F.Supp. 359 (S.D.N.Y.1944).
