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07B renewal registration rights
1909 Act: §23
1947 Act: §24
1976 Act: §304(a)
“[T]he proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the 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[. Under most circumstances,] 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: And provided further, That in default of the registration of such application for renewal and extension, the copyright in any work shall determine at the expiration of twenty-eight years from first publication.” (1909 Act, §23; essentially the same in later laws, except for durations)
“Separate renewal registration is possible for a work published as a contribution to a periodical, serial, or other composite work whether or not the contribution was copyrighted independently or as part of the larger work in which it appeared. Except in the cases described [under Group Renewal], each contribution published in a separate issue requires a separate renewal registration.” (Information Circular 15)
The song “I’ll Lend You Everything I’ve Got Except My Wife” was composed by Harry Von Tilzer with lyrics by Jean Havez. Von Tilzer (the individual) assigned his rights to Harry Von Tilzer Music Publishing Co. April 8, 1910, which copyrighted it May 2, 1910. Havez died April 3, 1937. Von Tilzer renewed the copyright September 29, 1937. Jerry Vogel Music Co. renewed the same song March 21, 1938, in the name of Cecilia Sedgewick, from whom Vogel received an assignment July 19, 1938. Sedgewick was purported to be the widow of Jean Havez (this was not established in court), yet even if this were certain, the assignment occurred too late to be valid given the lack of connection established previously between Vogel and Sedgewick. Vogel didn’t “make any effort to find out if his assignor was the widow of Jean Havez… . He filed the renewal certificate before he had the assignment, which is dated after the original term had expired.” The crucial point was that: “A renewal of a copyright by one not entitled thereto is void and, cannot be cured by subsequent ratification by the person allegedly entitled to renew.”
(The dispute in the same trial over the rights in another song, is summarized under renewal term rights of widows.)
The facts that pioneering movie director D.W. Griffith shot The Birth of a Nation and that the completed film was first shown in 1915, are incontestable. (The facts that the movie led to pleas for film censorship and to outcries against its supposed racism, are also incontestable, although both are outside the scope of this web site. The film continues to be discussed in any authoritative comprehensive history of motion pictures.) What became contestable was whether the renewal application filed on its copyright was valid.
The copyright was dated February 6, 1915, and was filed February 13, 1915, by D.W. Griffith as a “motion picture photoplay not reproduced for sale; in other words, as an unpublished work”. Epoch Producing Corp. was formed February 6, 1915, which was after The Birth of a Nation was made. It was to Epoch that the renewal certificate was issued in 1942.
The documents introduced into evidence at trial showed that Epoch Producing Corp., although it had applied for and received a certificate for renewal of the copyright (the only such applicant on this film), could not establish that Epoch was entitled to hold the renewal-period rights. Despite its holding contracts from David W. Griffith Corp. and Majestic Motion Picture Company, these merely established that Epoch had obtained Majestic’s obligations upon making a movie from Thomas Dixon’s novel, not that Griffith worked for Epoch. It could not be proved that Majestic had financed Griffith, nor even “what relationship, if any, existed between Griffith, on the one hand, and Majestic or Epoch, on the other.” The evidence does not “indicate whether Majestic and/or Epoch simply supplied capital for the production of the picture, whether they commissioned Griffith independently to produce the film, whether they ‘hired’ Griffith as employee to do the work, and, most important, whether they could have exercised the requisite power to control or supervise Griffith’s work, which is the hallmark of ‘an employer for hire’ relationship.”
“Moreover, there is no specific reference in either assignment [two April 17, 1915, transfers by Griffith’s corporation to Epoch and profit-participant Dixon] to the renewal term. This deficiency has generally been held as a matter of law, absent contrary evidence, to preclude a holding that a transfer of renewal rights was intended… . While Epoch correctly observes that the assignment here is from a corporation and not from an individual author,… DWG Corp. was in effect the author’s [Griffith’s] alter ego… . The transfer from the DWG Corp. is analogous to a transfer from the individual author and … the assignments must be limited in their effect to the original term copyright.” In both respects, Epoch failed the burden of proving it had acquired the rights in the film for the renewal period.
illustration: Lillian Gish as she appeared in The Birth of a Nation, released 1915. Sixty years later, she testified at the trial.
After the case had been tried in district court, and been appealed in appeals court, it returned to district court. One aspect of this complex case “put in issue (1) the copyright of the unpublished song and lyrics ‘Melancholy’, the song of which was written by Burnett and the lyrics by Watson in 1911 and copyrighted on October 13, 1911; (2) the copyright of that song and new lyrics composed by Norton in 1912, and then transferred to Bennett; and (3) the third version of that song under the name of ‘My Melancholy Baby’, published in 1914, which contained Burnett’s music, Norton’s lyrics, and an additional chorus in march time.
“The trial court found that Burnett and Watson registered their claims for renewal rights in the 1911 version, and Burnett in the 1912 and 1914 versions; that plaintiff also registered claim to renewal rights in the 1914 version; and that Charles Norton, a son of George Norton who wrote the new lyrics in 1912, also applied for renewal rights in the 1914 version. It decided that renewal rights of the Norton lyrics  were lost because of the failure of any person entitled thereto timely to file claim therefor, and that plaintiff owned the renewal rights to both titles and to the music of Burnett.”
The decision here was that “Burnett’s renewal of the 1912 copyright was ineffective” insofar as what was added by the 1912 copyright to the work contained in the 1911 copyright, and that thus “there was no copyright protection in the United States for the Norton lyrics, published in 1912 under the title ‘Melancholy’, and again in 1914 under the title ‘[My] Melancholy Baby’, which were held to be in the public domain”. The music enjoyed continued copyright.
“The Circuit Court of Appeals decided, as to the 1912 version, that Bennett had obtained a valid copyright, that Burnett and Norton were joint owners thereof, that Burnett’s renewal, assigned to the plaintiff, inured to the benefit of both plaintiff and Norton’s son, whose interest passed to defendant by the latter’s assignment… .
“It is now determined that the Norton lyrics copyrighted in 1912 are not in the public domain, and that Burnett’s renewal of that copyright, he being a joint owner with Norton, because of the death of Norton prior to renewal, inured to the benefit of Burnett and Norton’s son and their successors in interest.”
With this decided, the court in this third decision addressed whether the third version of the song was a derivative work, as summarized under derivative versions and new matter. Yet another aspect of this case is under term period calculation.
The only firm of several which held ownership or licenses in the classic Italian film The Bicycle Thief to file a renewal on the 1948 American copyright was International Film Exchange (IFEX), “which applied for and received a renewal certificate from the Copyright Office on November 29, 1976. However, since this renewal application was made in the name of IFEX, it was not effective to validly extend the copyright term. A mere licensee, as opposed to an assignee, cannot validly renew a copyright in its own name. As a consequence, the film irrevocably entered the public domain upon expiration of the initial term of copyright.”
Although IFEX argued that its renewal should be considered valid owing to language in its contract which gave it “‘rights of renewal’”, this “could only be reasonably interpreted as granting IFEX a right to secure a renewal of copyright in name of the author.” Section 24 of the 1909 Act was cited.
(A complete summary of this case is under derivative versions. Of critical importance therein is an editor’s note concerning a reversal in the copyright status upon U.S. entry into URAA/GATT.)
P.C. Films and Turner Entertainment each filed renewal applications on the 1961 film King of Kings. The circumstances by which this film got made, and the resolution of a dispute over who had the rights to distribute the film during the renewal term, are summarized under termination of grants provided by entry into new copyright term. Samuel Bronston Productions Inc. produced the film, which MGM contracted to distribute. Bronston’s rights were acquired by P.C. Films in 1967, and MGM’s rights were acquired by Turner later.
“The film was registered in 1962 as a copyrighted work under the Copyright Act of 1909. The application to register the copyright, filed with the copyright office on October 15, 1962, was signed by MGM in the name of Bronston and MGM as co-claimants… .
“There was no provision specifically requiring Bronston to register the film for the renewal term. Nor did MGM receive a power of attorney to renew the copyright. Nevertheless, on October 25, 1989, Turner registered the renewal copyright in the names of Bronston and Turner as co-claimants as MGM had done for the original copyright registration. On December 18, 1989, P.C. Films filed a second renewal application, naming P.C. Films as the sole copyright claimant.”
Was there an unauthorized renewal?
“It is true that the Basic Agreement does not impose any specific obligation on Bronston to renew the copyright, but this oversight may be explained by the fact that MGM believed it could register the copyright renewal for Bronston and MGM as co-claimants, as it did with the initial copyright registration, two years after the Basic Agreement was signed. Moreover, as Turner argued on appeal, it was the realistic commercial expectation of the parties that Bronston would seek to renew the copyright in the film, otherwise Bronston would lose any federal copyright protection for any of the rights it retained by virtue of the film falling into the public domain.” (There were indeed rights that Bronston retained: in 1960, “Bronston granted to MGM one of the most significant of its copyright rights in the film, namely the right to distribute, as well as various other incidental rights, while retaining other copyright rights, such as novelization and sequelization rights.”)
In preventing the copyright period from prematurely expiring, Turner was acting on behalf of P.C. Films (as well as itself).
(EDITOR’S NOTE: The Copyright Office Registered Works Database shows “Effective Registration Date” as October 30, 1961. This distinction is vital. Were this date not in 1961, the 1989 renewals would not have been valid.)
“The drafters of the 1909 Act were well aware of the difficulty of contacting distant authors who no longer wished to enforce their copyright rights. In [§]24, for example, Congress provided that a proprietor could secure and renew copyright on a composite work when the individual contributions were not separately registered. The provision was apparently addressed to the difficulties such proprietors had previously faced in locating and obtaining the consent of authors at the time of renewal. See H. R. Rep. No. 2222, 60th Cong., 2d Sess., 15 (1909); 1 Legislative History of the 1909 Copyright Act, Part C, p. 56 (E. Brylawski & A. Goldman eds. 1976) (statement of Mr. Elder) (hereinafter Brylawski & Goldman); 5 id., Part K, pp. 18-19 (statement of Mr. Putnam); 5 id., Part K, p. 77 (statement of Mr. Hale). See also Elder, Duration of Copyright, 14 Yale L. J. 417, 418 (1905). The effect of the consent requirement under the Court’s reading should not only be to forbid the author of the derivative work to ‘employ a copyrighted work without the author’s permission,’ ante, at 232, but also to penalize him by depriving him both of the right to use his own new material and, in theory, of the right to protect that new material against use by the public. It is most unlikely that a Congress which intended to promote the creation of literary works would have conditioned the protection of new material in an otherwise original work on ‘consent’ of an original author who did not express the desire to protect his own work.
“The Court of Appeals thought that the failure of Congress to grant an ‘exemption’ to derivative works similar to that it granted composite works demonstrated its intention that derivative works lapse upon termination of the underlying author’s copyright interest. 863 F.2d, at 1476. Section 24, however, does not exempt composite works from the renewal provision, but merely provides for their renewal by the proprietor alone when the individual contributions are not separately copyrighted. See 2 Nimmer 9.03[B], p. 9-36. Moreover, the ‘author,’ entitled to renewal under [§]24, refers back to the author of the original work and the derivative work. Congress did not need to make special provision for the derivative work in [§]24 because it already did so in [§]7, making it a new work ‘subject to copyright under the provisions of this title.’ 17 U.S.C. 7 (1976 ed.). (These two paragraphs are from the dissent in Stewart v. Abend (1990), 495 U.S. 207, 42.)
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