Page:Roger Miller Music v. Sony-ATV Publishing (2012).djvu/8

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No. 10-5363

Roger Miller Music, Inc. et al. v.
Sony/ATV Publishing LLC

Page 8

Roger Miller was entitled to the renewal copyright because he was living at the time the application for registration was made. Sony was in turn entitled as Miller's assignee, and thus took ownership at the time the interest vested on January 1, 1993.^[1]

The fact that the interest in the renewal copyright vests “upon the beginning of such further term,” 17 U.S.C. § 304(a)(2)(B)(i), does not dictate a contrary result. The date of vesting is not dispositive as to who owns the copyright, as the 1992 Act “separate[d] the inquiry of who is entitled to the renewal rights from the inquiry of who is alive when renewal vests.” Dimensional Music Publ'g, 435 F. Supp. 2d at 457; see also 3 Nimmer on Copyright § 9.05(C)(2) (describing the two concepts as “uncoupled”). Instead, the date of the renewal application determines entitlement to ownership. Accordingly, a party can become entitled to ownership of the renewal copyright prior to the time it actually vests.^[2]

The district court (and RMMI) cited language in Broadcast Music, Inc. v. Roger Miller Music, Inc., 396 F.3d 762 (6th Cir. 2005), and the prior panel's opinion in this case as support for its conclusion that an assignee has no interest in a renewal copyright if the assigning author dies prior to vesting. In both cases, this language is dicta. The issue in Broadcast Music was whether an author's widow and children take equal shares in the renewal interest upon statutory succession; the opinion mentioned vesting only in the course of an overview of the law regarding renewal copyrights. Id. at 763-64, 768-69. Moreover, Broadcast Music cited Miller Music, which, as described above, did not

↑ The one other case to address this issue under the 1992 Act also held in favor of the assignee. Dimensional Music Publ'g, LLC v. Kersey, 435 F. Supp. 2d 452, 460 (E.D. Pa. 2006). Nimmer's copyright treatise described Dimensional Music Publishing as a “textbook case” of the operation of § 304(a)(2)(B)(i). 3 Nimmer on Copyright § 9.05(C)(2). Courts were split on the issue under the 1976 Act, compare Frederick Music Co. v. Sickler, 708 F. Supp. 587, 589 (S.D.N.Y. 1989) (author must survive until registration in the renewal year), with Marascalco v. Fantasy, Inc., 953 F.2d 469, 476 (9th Cir. 1991) (author must survive until start of the renewal term), but the 1976 Act did not contain the “at the time the application is made” language.
↑ The scenario of a party's gaining an indefeasible right to something prior to actually being eligible to receive it is hardly unusual, and is often presented, for example, in pension law. In ERISA plans, “an employee's right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age,” even though the benefits are not paid until he actually retires. 29 U.S.C. § 1053(a); see also Calabro v. City of Omaha, 531 N.W.2d 541, 550 (Neb. 1995) (holding that “an employee's protected interest in a pension vested before he or she became eligible to collect the pension”).

[1] The one other case to address this issue under the 1992 Act also held in favor of the assignee. Dimensional Music Publ'g, LLC v. Kersey, 435 F. Supp. 2d 452, 460 (E.D. Pa. 2006). Nimmer's copyright treatise described Dimensional Music Publishing as a “textbook case” of the operation of § 304(a)(2)(B)(i). 3 Nimmer on Copyright § 9.05(C)(2). Courts were split on the issue under the 1976 Act, compare Frederick Music Co. v. Sickler, 708 F. Supp. 587, 589 (S.D.N.Y. 1989) (author must survive until registration in the renewal year), with Marascalco v. Fantasy, Inc., 953 F.2d 469, 476 (9th Cir. 1991) (author must survive until start of the renewal term), but the 1976 Act did not contain the “at the time the application is made” language.

[2] The scenario of a party's gaining an indefeasible right to something prior to actually being eligible to receive it is hardly unusual, and is often presented, for example, in pension law. In ERISA plans, “an employee's right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age,” even though the benefits are not paid until he actually retires. 29 U.S.C. § 1053(a); see also Calabro v. City of Omaha, 531 N.W.2d 541, 550 (Neb. 1995) (holding that “an employee's protected interest in a pension vested before he or she became eligible to collect the pension”).

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