maximum of forty-two. It applies to some original and to all derivative works.” It would probably cover the majority of copyright entries during any particular period-the majority in number, I do not say in importance. The longer termthe life of the author and fifty years after his death-applies only to original works," but applies to most of those.

The requirement for recording the author's death date had been dropped. However, the bill included the compromise renewal provision for extending subsisting copyrights which had been worked out at the earlier conferences,57 and much of the discussions of copyright duration at the 1906 hearings 58 centered around this provision:

SEC. 19. That the copyright subsisting in any work at the time when this act goes into effect may, at the expiration of the renewal term provided for under existing law, be further renewed and extended by the author, if he be still living, or if he be dead, leaving a widow, by his widow, or in her default or if no widow survive him, by his children, if any survive him, for a further period such that the entire term shall be equal to that secured by this act: Provided, That application for such renewal and extension shall be made to the Copyright Office and duly registered therein within one year prior to the expiration of the existing term: And provided further, That should such subsisting copyright have been assigned, or a license granted therein for publication upon payment of roy alty, the copyright shall be renewed and extended only in case the assignee or licensee shall join in the application for such renewal and extension.

Dissatisfaction with this provision continued to be expressed." Some publishers felt that their investments would still be in danger, and argued that subsisting copyrights should not be extended at all. George W. Ogilvie, a Chicago publisher who acknowledged that he was speaking against his own interests, argued that making the renewal conditional on the consent of a publisher gave the publisher a veto power which he could use to dictate his own terms and reduce the royalty he had formerly been paying.61 Mr. Ogilvie suggested a provision requiring the assignee or licensee to continue paying the same royalty; 62 however, in cases where there had been an outright sale rather than a royalty agreement, he opposed any provision that would require joining the assignee in the renewal application.

65 Section 18(b) of the bills listed these works as follows:

63 He

any composite or collective work; any work copyrighted by a corporate body or by the employer of the author or authors; any abridgment, compilation, dramati zation, or translation; any posthumous work; any arrangement or reproduction in some new form of a musical composition; any photograph; any reproduction of a work of art; any print or pictorial illustration; the copyrightable contents of any newspaper or other periodical; and the additions or annotations to works previously published.

50 These "original works" were listed in section 18 (c) as follows: "book, lecture, dramatic or musical composition, map, work of art, drawing or plastic work of a scientific or technical character, or other original work." 57 Arthur Steuart, a Baltimore attorney representing the American Bar Association, described the evolution of the compromise as follows:

finally this clause was reached as a compromise of the interests involved, because it gave to each side the necessity of calling upon the other, both the author or the original proprietor and the subsequent licensee or assignee, as to what should be done in the case of an extension. It was the best compromise that we thought possible under the circumstances, because it left each of those interested a voice. They had to be consulted and had to be reconciled before the application could be made. Hearings (Dec. 1906), supra note 53, at 173.

68 See, e.g., Hearings (June 1906), supra note 53, at 46-49, 54, 137, 185; Hearings (Dec. 1906), supra note 53, at 48, 95, 173, 402, 421.

50 COPYRIGHT OFFICE, AMENDMENTS PROPOSED TO THE COPYRIGHT BILL (S. 6330, H.R. 19853) 80-83 (Pt. I, Nov. 1906); id. at 7 (Addenda, Dec. 4, 1906); id. at 54-55 (Pt. II, Dec. 1906).

60 Hearings (June 1906), supra note 53, at 54, 137.

Hearings (June 1906), supra note 53, at 46-49; Hearings (Dec. 1906), supra note 53.

at 48.

62 Hearings (June 1906), supra note 53, at 47. 63 Hearings (Dec. 1906), supra note 53, at 48.

wished to insure that in all cases the benefits of the extended term would go to the author and his family.

Robert Underwood Johnson, representing the American [Authors'] Copyright League, proposed a further compromise: where there had been a royalty agreement, the copyright could be extended without joining the assignee or licensee, but the latter could continue publishing at the same royalty rate; however, where there had been an outright sale, the assignee or licensee would have to be joined in the renewal application. This provision, which came to be known as the "Monroe Smith Amendment," was incorporated in several of the later bills.65

66

64

Before the 1906 hearings started it had been assumed that everyone favored abolishing renewals and substituting a long term based on the life of the author, with special terms based on publication for certain works. During the course of the hearings some new opinions were advanced. Objection was raised to having different terms for various works, on the ground that it would create difficult borderlines. A good deal of opposition to the life-plus-fifty term was expressed, both because it was too long and because it was necessarily indeterminate.67 Sentiment was also expressed in favor of renewals as a device for adjusting the term in accordance with the commercial value of the work, so that "undeserved or undesired extensions of term" would not be conferred upon those "hundreds of thousands of copyrights of no pecuniary value to the owners." 68

70

These views found their way into the identical bills that were reported out of the committees of both houses early in 1907.69 Special terms were provided for photographs and posthumous works, but for all other works the copyright was to last for thirty years from the death of the author. However, the life-plus-thirty term was made to depend upon a renewal device; the copyright would expire twenty-eight years from publication unless the owner recorded a claim to the remainder of the term within the twenty-eighth year." The requirement for renewal by the author, his widow or children, as a condition for extending subsisting copyrights, was also retained, but the provision authorizing an assignee to join in the renewal was dropped.

The committee reports accompanying these bills indicate clearly that the purpose of adding the renewal device was to allow the large bulk of copyrighted works to fall into the public domain at the end

4 Id. at 95, 402.

See notes 82-85, 95-96 infra, and text thereto.

66 COPYRIGHT OFFICE, op. cit, supra note 59, at 51 (Pt. II, Dec. 1906).

Id. at 73-79 (Pt. I, Nov. 1906); id. at 49-53 (Pt. II, Dec. 1906).

Hearings (June 1906), supra note 53, at 183.

S. 8190, H.R. 25133, 59th Cong., 2d Sess. (1907).

TO Section 17 provided a term of 28 years for photographs and 30 years for posthumous works, both to be computed from first publication.

A proviso to § 17(c) read as follows:

*Provided, That within the year next preceding the expiration of twenty-eight years from the first publication of such work the copyright proprietor shall record in the Copyright Office a notice that he desires the full term provided herein; and in default of such notice the copyright protection in such work shall determine at the expiration of twenty-eight years from first publication. * * *

6234861

of a short definite term, while permitting a much longer term for works of lasting value."2

For almost a year after these bills were reported there was practically no legislative activity in the copyright field. In November, 1907, William A. Jenner, a New York attorney who claimed to be representing no special interest,73 published a broadside entitled The Publisher Against the People, an attack upon the pending copyright bills, in which renewals were discussed at length." Mr. Jenner argued that "one of the covert but great objects of the bill is to enable the publishers to escape from this second term"; 75 he felt that the renewal term was of much value to the author and should be retained:

The second term of fourteen years to the author or to his widow or children is always a distinct and important advantage to him, and never a disadvantage, because if the author has made an improvident bargain with his publisher for the first term, its disadvantages may be redressed by the bargain for the second term with a surer knowledge of the selling value of the work. The proposed law altogether omits this salutary provision, and under it the publisher will acquire, and the author will forever part with, the entire interest in the work not only for the contingent term during life but also for the absolute term of thirty years from his death, unless the author reserves to himself the ownership of the copyright, which rarely happens."

76

Mr. Jenner had no objection to a longer term where the work was worthy of it, but felt that this could best be accomplished by means of a second renewal, thus giving a third copyright term to the author and his family."

In December, 1907, a newly-revised copyright bill was introduced in the House by Mr. Currier 78 and in the Senate by Mr. Smoot." Special terms computed from publication were given to posthumous works and to "any periodical or other composite work," "any work copyrighted by a corporate body, or by an employer for whom such work is made for hire." 80 All other works were given a term of life-plus-thirty, subject to a double renewal provision; to obtain the full term it was necessary both to record a claim within the twenty

72 The following is an excerpt from the House report:

It is said that under existing law no extension of the term beyond the first períod of twenty-eight years is asked for on 95 per cent of the copyrighted books. Your committee provide in this bill that unless within the year next preceding the expiration of twenty-eight years from first publication the copyright proprietor shall give notice that he desires the full term, the copyright shall cease at the end of twenty-eight years. It is believed that under this provision more than 90 percent of copyrighted books will fall into the public domain as early as they would under existing law. H.R. REP. NO. 7083, 59th Cong., 2d Sess. 14 (Pt. I, 1907).

The comments of the Senate committee were to the same effect:

The longer term proposed is but a possible maximum. It is coupled with the proviso that after a brief definite term of years (twenty-seven) the copyright proprietor shall record a positive notice that he desires still to keep alive the protection. In default of such notice the term will conclude absolutely at the end of twenty-eight years.

This amounts to an initial term of twenty-eight years (identical with the present initial term), with a privilege of renewal. It is probable that four-fifths of the copyrights would still conclude with the twenty-eighth year-conclude from their own indifference or inertia. S. REP. NO. 6187, 59th Cong., 2d Sess. 7 (Pt. I, 1907). Hearings Before Committees on Patents on Pending Bills, 60th Cong., 1st Sess. 120 (1908).

74 JENNER, THE PUBLISHER AGAINST THE PEOPLE 60-66 (1907).

75 Id. at 60.

78 Id. at 61.

"Id. at 65-66.

78 H.R. 243, 60th Cong., 1st Sess. (1907).

79 S. 2499, 60th Cong., 1st Sess. (1907).

80 Section 25 gave 30 years to posthumous works and 42 years to the other works speelfled. In the House bill, which was introduced first, the employer clause read "by an employer by whom such work is made for hire," but the word "by" was changed to "for" in the Senate bill.

eighth year from publication and to record the date of the author's death in the Copyright Office.81

The provision covering subsisting copyrights in the Smoot-Currier bill was the same as that in the bills which had been reported early in 1907; the compromise provision requiring an assignee to join in the renewal was not included. This provision, which was henceforth called the "Monroe Smith Amendment," 82 was restored to the Kittredge-Barchfeld bill introduced in the Senate on December 18, 1907 88 and in the House on January 6, 1908.84 The amendment provided that an assignee or licensee of a subsisting copyright would be entitled to join in the renewal application if (1) there had been no royalty agreement, or (2) the author refused to continue the existing royalty agreement. The Kittredge-Barchfeld bill also expanded the classes of persons who could claim the extended term: if there were no author, widow, widower, or children, the renewal could be claimed by the author's "heirs, executors, or administrators."

85

86

In late March of 1908 a three-day joint hearing was held on all the pending bills. At the outset it became apparent that Senator Smoot and Representative Currier, chairmen of the Senate and House Committees on Patents respectively, were attracted by renewals as a device for allowing the author's interest to revert to him and his family.87 Representative Currier in particular seemed to have become rather hostile to the idea of having a long term that might benefit publishers at the expense of authors; he spoke of the value of a renewal term to authors, and the significance of the following passage can hardly be overestimated:

Representative CURRIER. Mr. Clemens told me that he sold the copyright for Innocents Abroad for a very small sum, and he got very little out of the Innocents Abroad until the twenty-eight-year period expired, and then his contract did not cover the renewal period, and in the fourteen years of the renewal period he was able to get out of it all the profits."

At the 1908 hearings Mr. Ogilvie reiterated his opposition to allowing the publisher to join in the extension of subsisting copyrights, and appeared to take a position favoring reversion of copyright to the

81 Section 25 of both bills contained the following two provisos:

Provided, That within the year next preceding the expiration of twenty-eight years from the first publication of such work the copyright proprietor shall record in the Copyright Office a notice that he desires the full term provided herein, and in default of such notice the copyright protection in such work shall determine at the expiration of twenty-eight years from first publication: And provided further, That where the term is to extend beyond the lifetime of the author it shall be the duty of his executors, administrators, or assigns to further record in the Copyright Office the date of his

death.

82 Monroe Smith was a member of the council of the American [Authors'] Copyright League and the drafter of the actual language of the amendment. Hearings, supra note 73. at 65.

Sa S. 2900, 60th Cong., 1st Sess. (1907).

84 H.R. 11794, 60th Cong., 1st Sess. (1908).

The amendment appeared in the second proviso of $ 26: *** And provided further, That if such subsisting copyright shall have been assigned or a license granted therein for publication, and if such assignment or license shall contain provision for payment of royalty, and if the renewed copyright for the extended term provided in this Act shall not be assigned nor license therein granted to such original assignee or licensee or his successor, said original assignee or licensee or his successor shall nevertheless be entitled to continue to publish the work on payment of the royalty stipulated in the original agreement; but if such original assignment or license contain no provision for the payment of royalty, the copyright shall be renewed and extended only in case the original assignee or licensee or his successor shall join in the application for such renewal and extension.

se Hearings, supra note 73.

87 Id. at 17-20. 61-62.

88 Id. at 17, 62.

So Id. at 20. This passage was quoted by Justice Frankfurter in his majority opinion in Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 653 (1943).

author by means of a renewal device.90 William A. Jenner also testified strongly in favor of renewals, and at about the same time he brought out a new broadside, entitled The Octopus: Reaching for Books,92 in which his views were even more forcefully expressed. He ridiculed the publishers' arguments that, unless they were given an interest in the renewal, they might lose their investment in their plates and stock on hand.93 In The Publisher Against the People, he had maintained that, if the author had sold his copyright outright, he should be given a second chance to benefit from it, and if he had made a royalty agreement, he should be entitled to renegotiate for more favorable terms.94

In view of these expressions in favor of the renewal principle, it is puzzling that the author-publisher groups did not attempt to answer them by making a strong case for the abolition of renewals. The fact is that the only arguments they advanced on the question at the 1908 hearings were in favor of the "Monroe Smith Amendment," 95 relating to the extension of subsisting copyrights, and even these arguments proved unpersuasive.96 It is not altogether pointless to wonder what would have happened if some of the fundamental arguments against renewals had been effectively presented to Congress in 1908.

Seven more copyright bills were introduced in the House between May, 1908, and January, 1909.97 With minor variations, the pattern for six 98 of these bills had already been set: special terms were provided for posthumous works," periodicals and composite works,100 works "copyrighted by a corporate body," 101 and works made for hire; 102 for other works the term was the life of the author plus a period of years,103 subject to renewal by the proprietor in the twentyeighth year from publication, and with the requirement that the author's death date be recorded; an extension of subsisting copyright to the full term for the benefit of the author and his family 104 was provided, but with the qualification of the "Monroe Smith Amendment" which permitted assignees to join in the renewal in certain cases. The seventh of these bills, which was introduced by Representative Currier on May 12, 1908,105 broke away radically from this pattern and returned in part to the principle of the existing law. Copyright was to last for twenty-eight years from first publication, with a right of

99 JENNER, THE OCTOPUS: REACHING FOR BOOKS (1908).

93 Id. at 44.

94 JENNER, THE PUBLISHER AGAINST THE PEOPLE 61-62 (1907). Hearings, supra note 73, at 17-20, 66, 74-78, 88-89, 412.

9 It was suggested at the time that omission of the "Monroe Smith Amendment" from the Act was inadvertent, The Copyright Code: Its History and Features, 76 The Publishers' Weekly 19, 20 (July 1909), but this is highly unlikely. In the face of all the discussion of the amendment, the omission of the amendment from the Currier bills of May 1908 (note 105, infra) and February 1909 (note 106, infra) can only have been deliberate, and this conclusion is borne out by the comments in the Committee reports, note 109, infra.

97 H.R. 21592, H.R. 21984, H.R. 22071, H.R. 22183, 60th Cong., 1st Sess. (1908); H.R. 24782, 60th Cong., 2d Sess. (1908); H.R. 25162, H.R. 27310, 60th Cong., 2d Sess. (1909).

08 All of the above (note 97 supra) except H.R. 22183, 60th Cong., 1st Sess. (1908).

Do The terms were 30 years in three bills, 42 in one, and 50 in the other two.

100 The terms were 42 years in three bills and 50 in the other three.

101 The terms were 42 years in three bills and 50 in the other three. The parenthetical phrase "(otherwise than as assignee of the individual author or authors)" was included in the clause in H.R. 21592, and the words "or licensee" were added in H.R. 27310. See notes 205-09 infra, and text thereto.

102 The terms were 42 years in three bills and 50 in the other three.

108 The period after death was 30 years in one bill, 42 in two, and 50 in the other three. 104 See notes 312-14, 336-39 infra, and text thereto.

106 H.R. 22188, 60th Cong., 1st Sess. (1908).