renewal for another twenty-eight years on behalf of the "author, if still living, or the widow, widower, or children, if the author be not living, and if such author, widow, widower, or children be not living, then the author's heirs, or executors, or administrators ***, but if the work be a composite work upon which the copyright was originally secured by the proprietor thereof, then the proprietor of such copyright shall be entitled to the privilege of renewal and extension." Subsisting copyrights could be extended to the full term by the author, or his widow, children, or heirs, but the bill contained no "Monroe Smith Amendment" which would have allowed a publisher to share in the renewal.

The Smoot-Currier bill of February, 1909,106 which became the Act of 1909,107 represents a crude attempt to graft some of the provisions of the other bills onto the basic renewal provisions of the 1908 Currier bill. In particular, the four types of works for which special terms had been provided in the other bills-posthumous works, periodicals and other composite works, works copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author), and works made for hire-were picked up intact and forced into the renewal scheme as works for which a proprietor could claim renewal in his own right. It is regrettable that, after years of consideration and study, one of the most important provisions of the bill should have been pieced together hastily and enacted without any real analysis of the consequences.

The duration-renewal provisions of the Smoot-Currier bill were enacted without change on March 4, 1909.108 The following quotations from the reports that accompanied the bill 109 indicate that there were two basic reasons why renewals were retained:

(1) To benefit the author.

** It was urged before the committee that it would be better to have a single term without any right of renewal, and a term of life and fifty years was suggested. Your committee, after full consideration, decided that it was distinctly to the advantage of the author to preserve the renewal period. 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."

110

(2) To regulate the term according to the commercial value of the work.

* A very small percentage of the copyrights are ever renewed. All use of them ceases in most cases long before the expiration of twenty-eight years. In the comparatively few cases where the work survives the original term the author ought to be given an adequate renewal term. * * * 111

E. SUMMARY

On its face the development of the 1909 duration-renewal provision appears to comprise an extraordinary non sequitur. Most of the bills and almost all of the discussion assumed a life-plus term and the aboli

109 H.R. REP. NO. 2222, S. REP. NO. 1108, 60th Cong., 2d Sess. (1909). 110 Id. at 14.

111 Ibid.

tion of renewals, yet the law as enacted retained a publication-plus term with a rather elaborate reversionary renewal system. A careful analysis of the spotty, confusing, and extremely complex history of the provision shows pretty clearly why this happened, and the reasons are important today:

(1) The opponents of renewals agreed so thoroughly among themselves that they became complacent. They failed to make an effective case against renewals in the first instance, to answer the arguments presented on the other side, and to recognize the growing congressional sentiment in favor of renewals.

(2) Congressional hostility to a long, indeterminate term for all works was evident from the beginning. Provisions requiring registration of a renewal claim during the twenty-eighth year and recordation of the author's death date appeared in almost all the bills. These provisions were aimed at putting ephemeral works in the public domain after 28 years, and at making it easy for the public to determine when a copyright would expire.

(3) It was also obvious that some of those responsible for the legislation in Congress gradually became convinced that authors needed protection against publishers; renewals appeared to provide a convenient device for insuring that at least some of the benefits of the copyright went to the author. Nearly everyone agreed that the extension of subsisting copyrights should revert to the author and his family, and this provision furnished a springboard for extending the reversionary principle to all future copyrights.

III. THE PRESENT LAW OF COPYRIGHT RENEWAL

A. STATUTORY LAW NOW IN EFFECT

112

The duration-renewal provisions of the Act of March 4, 1909,1 which came into effect on July 1, 1909, were contained in two sections: § 23, which covered works copyrighted after the Act came into force,1 and § 24, which covered works in which copyright was already sub

112 Supra note 107.

113 The following is the text of § 23 as originally enacted:

113

SEC. 23. That the copyright secured by this Act shall endure for twenty-eight years from the date of first publication, whether the copyrighted work bears the author's true name or is published anonymously or under an assumed name: Provided, That in the case of any posthumous work or of any periodical, cyclopaedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the 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: And provided further, That in the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopaedic or other composite work when such contribution has been separately registered, 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.

sisting.114 There were curious differences between these sections; in the case of future works, § 23 gave the renewal right to the proprietor in the case of posthumous works, periodicals and composite works, works copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author), and works made for hire, while for subsisting copyrights § 24 gave the proprietor the renewal only in the case of composite works. These differences may have been the result of a deliberate effort to have the extended terms of subsisting copyrights revert to the authors and their families in as many cases as possible, but it seems more likely that they simply resulted from careless drafting.115

Section 23 of the Act of 1909 became operative in July, 1936, and is now § 24, the basic duration-renewal provision of the copyright law as codified in 1947.116 Section 24 of the Act of 1909 ceased to have any effect after July 1, 1937, and was dropped in the 1947 codification. In 1939 Congress enacted a bill transferring jurisdiction over commercial prints and labels from the Patent Office to the Copyright Office; 117 the bill provided that subsisting copyrights originally registered in the Patent Office could be renewed in the Copyright Office upon application by the proprietor, and this provision became section 25 of the Copyright Code.118 In 1940 § 23 of the Act of 1909 (now § 24 of the Code) was amended to permit separate renewal of contributions to periodicals and other composite works, whether the contribution had originally been registered separately or not.1 119 Aside from these changes, the renewal provisions are exactly the same as when they were enacted over fifty years ago.120

In structure, § 24 falls into four parts:

(1) The main body of the section provides that copyright shall endure for 28 years "from the date of first publication."

(2) The first proviso provides that, in the following cases, the copyright proprietor is entitled to a second term of 28 years if renewal registration is made within the 28th year of the first term:

(a) "Any posthumous work;'

(b) "Any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof;"

114 The following is the text of § 24:

SEC. 24. That the copyright subsisting in any work at the time when this Act goes into effect may, at the expiration of the term provided for under existing law, be renewed and extended by 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 by the author's executors, or in the absence of a will, his next of kin, for a further period such that the entire term shall be equal to that secured by this Act, including the renewal period: Provided, however, That if the work be a composite work upon which copyright was originally secured by the proprietor thereof, then such proprietor shall be entitled to the privilege of renewal and extension granted under this section: 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.

115 Brown, Renewal Rights in Copyright, 28 CORNELL L.Q. 460, 477 (1943).

116 Act of July 30, 1947, 61 Stat. 652, 17 Ú.S.C. (1958).

117 Act of July 31, 1939, ch. 396, § 3, 53 Stat. 1142.

118 17 U.S.C. § 25 (1958).

119 Act of March 15, 1940, ch. 57, 54 Stat. 51, 17 U.S.C. § 24 (1958).

The

120 Changes affecting renewals have been made in other sections of the law. renewal registration fee was raised from $.50 to $1.00 by the Act of May 23, 1928, ch. 704, 1, 45 Stat. 714, and from $1.00 to $2.00 by the Act of April 27, 1948, 62 Stat. 202, 17 U.S.C. § 215 (1958). The President was given power to extent, by proclamation, the time limits for renewals and other registrations for the benefit of foreign authors affected by wartime disruption of communications. Act of Sept. 25, 1941, ch. 421, 55 Stat. 732, 17 U.S.C. § 9 (1958). [The Act of April 13, 1954, 68 Stat. 52, 17 U.S.C. § 216 (1958) provided that, when the last day for taking action in the Copyright Office falls on a Saturday, Sunday, or holiday, the necessary application or deposit may be made on the next business day.

(c) "Any work copyrighted by a corporate body (otherwise than assignee or licensee of the individual author);"

(d) "Any work copyrighted *** by an employer for whom such

work is made for hire.

(3) The second proviso provides that, in all other cases, the following are entitled to the renewal: "the author** * 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 * * ** (4) The last proviso provides that, unless renewal registration has been made, copyright terminates at the end of the first 28-year term.

B. THE NATURE AND THEORETICAL BASIS OF RENEWAL COPYRIGHT

122

The renewal copyright established in the Act of 1831 and elaborated in the Act of 1909 is a unique form of property whose nature and theoretical basis are still unclear. The courts and the commentators have repeatedly characterized a renewal as a “new estate” or a “new grant" rather than a mere continuation or extension.121 Renewals are said to be separate from and independent of the original copyright,1 to be "free and clear of any rights, interests, or licenses attached to the copyright for the initial term," 123 and to have "absolutely all of the attributes of a new work copyrighted at the time the renewal is effected." 124 The right of renewal is considered a personal right given directly to certain named beneficiaries; 125 it "does not follow the author's estate but *** is derived directly from the statute.” 126

121 Ballentine v. De Sylva, 226 F. 2d 623, 629 (9th Cir. 1955), aff'd, 351 U.S. 570 (1956) : G. Ricordi & Co. v. Paramount Pictures, Inc., 189 F. 2d 469 (2d Cir. 1951), cert. denied, 342 U.S. 849 (1951); Silverman v. Sunrise Pictures Corp., 273 Fed. 909 (2d Cir. 1921); White-Smith Music Pub. Co. v. Goff, 187 Fed. 247 (1st Cir. 1911) Pierpont v. Fowle, 19 Fed. Cas. 652 (No. 11152) (C.C.D. Mass. 1846); HOWELL, THE COPYRIGHT LAW 109 (3d ed. 1952); 2 SOCOLOW, THE LAW OF RADIO BROADCASTING § 677, at 120506 (1939); WEIL, AMERICAN COPYRIGHT LAW § 949, at 363-64 (1917); Caterini, Contributions to Periodicals, in 10 COPYRIGHT LAW SYMPOSIUM (ASCAP) 321, 363 (1959); Bricker, Renewal and Extension of Copyright, 29 SO. CAL. L. REV. 23, 27-28 (1955).

122 Edward B. Marks Music Corp. v. Charles K. Harris Music Publishing Co., 255 F. 2d 518 (2d Cir.), cert denied, 358 U.S. 831 (1958): Silverman v. Sunrise Pictures Corp., 273 Fed. 909 (2d Cir. 1921); Fitch v. Shubert, 20 F. Supp. 314 (S.D.N.Y. 1937); April Pro ductions, Inc. v. G. Schirmer, Inc., 308 N.Y. 366, 126 N.E. 2d 283 (1955); BALL, THE LAW OF COPYRIGHT AND LITERARY PROPERTY & 88, at 193 1944); WARNER, RADIO AND TELEVISION RIGHTS § 81, at 245 (1953); Caterini, in op. cit. supra note 121, at 363; Bricker, supra note 121, at 27; Comment, 33 N.Y.U.L. REV. 1027, 1029 (1958); 22 BROOKLYN L. REV. 322, 324 (1956); 30 SO. CAL. L. REV. 532, 534 (1957); see Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373 (1960).

123 Fitch v. Shubert, 20 F. Supp. 314 (S.D.N.Y. 1937); accord, G. Ricordi & Co. v. Paramount Pictures, Inc., 189 F. 2d 469 (2d Cir.), cert. denied, 342 U.S. 849 (1951); Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 115 F. Supp. 754 (S.D.N.Y. 1953), rev'd on other grounds, 221 F. 2d 569 (2d Cir. 1955), modified on other grounds, 223 F. 2d 252 (2d Cir. 1955); WARNER, op. cit. supra note 122, § 81, at 245; Caterini, in op. cit. supra note 121, at 363; Bricker, supra note 121, at 27-28; Comment, 33 N.Y.U.L. REV. 1027, 1029 (1958); 30 SO. CAL. L. REV. 532, 534 (1957); see Miller Music Corp. v. Charles N. Daniels, Inc., supra note 122; WARNER, op. cit. supra note 122, § 83, at 255.

124 2 SOCOLOW, op. cit. supra note 121, at 1205; see Harris v. Coca-Cola Co., 73 F. 2d 370 (5th Cir. 1934), cert. denied, 294 U.S. 709 (1935); Silverman v. Sunrise Pictures Corp., 273 Fed. 909 (2d Cir. 1921); White-Smith Music Pub. Co. v. Goff, 187 Fed. 247 (1st Cir. 1911) BALL, op. cit. supra note 122, § 88, at 192-93; Bricker, supra note 121, at 27. 125 Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373 (1960); Ballentine v. De Sylva, 226 F. 2d 623, 625, 629 (9th Cir. 1955), aff'd, 351 U.S. 570 (1956): White Smith Music Pub. Co. v. Goff, 187 Fed. 247 (1st Cir. 1911): 28 OPS. ATT'Y GEN. 162 (1910): BALL, op. cit. supra note 122, § 88, at 193; 2 KENT, COMMENTARIES ON AMERICAN LAW 384 (2d ed. 1832); 2 SOCOLOW, op. cit. supra note 121. § 677. at 1205; Comment, 36 U. DET. L.J. 66, 68 (1958); see WEIL, op. cit. supra note 121, § 956, at 367.

128 Danks v. Gordon, 272 Fed. 821 (2d Cir. 1921); accord, Miller Music Corp. v. Charles N. Daniels, Inc., supra note 125; Ballentine v. De Sylva, supra note 125, at 625; WhiteSmith Music Pub. Co. v. Goff, 180 Fed. 256 (C.C.D.R.I. 1910), aff'd, 187 Fed. 247 (1st Cir. 1911); BALL, op. cit. supra note 122, § 88, at 192; HOWELL, op. cit. supra note 121. at 109; WARNER, op. cit. supra note 122, 81, at 246; Comment, 36 U. DET. L.J. 66, 67 (1958); Comment, 33 N.Y.U.L. REV. 1027, 1031 (1958); see Silverman v. Sunrise Pie tures Corp., 273 Fed. 909 (2d Cir. 1921); Stuff v. La Budde Feed & Grain Co., 42 F. Supp. 493 (E.D. Wis. 1941); Shapiro, Bernstein & Co. v. Bryan, 27 F. Supp. 11 (S.D.N.Y. 1939); 28 OPS. ATT'Y GEN. 162 (1910); 17 TEMP. L.Q. 299, 301 (1943).

These generalizations, though mostly true, have suffered from too much uncritical repetition. To get at what renewals really are, one must look closely at what Congress wanted to do, what it said in the statute, and what the courts have said the statute means.

The legislative history shows that in retaining the reversionary aspect of renewals, Congress was trying to accomplish two things: (1) If the author was still living, Congress wanted to give him an opportunity to benefit from the success of his work and to renegotiate disadvantageous bargains. It has often been said that the renewal provision was based on "the familiar imprudence of authors in commercial matters." 127 While superficially logical, there is nothing in the legislative history to support this supposition. There is more evidence of a Congressional recognition that author-publisher contracts must frequently be made at a time when the value of the work is unknown or conjectural and the author (regardless of his business ability) is necessarily in a poor bargaining position."

128

(2) If the author were dead, Congress wanted to insure that his "dependent relatives" 129 would receive the benefits of the renewal, regardless of any agreements the author had entered into.

To attain these results Congress had to depart from ordinary concepts of property in two important respects:

(1) Reversion. The statute had to break the continuity of title at the end of the first term and provide for a reversion of ownership to the author, if living.

(2) Statutory designation of beneficiaries. To make sure that the renewal benefits went to "those naturally dependent upon the deceased author's bounty," 130 something more than a reversion to the author's "executors, administrators, or heirs" had to be provided. If the renewal reverted to the author's estate, it was entirely possible that legatees and creditors might gain the benefits at the expense of the author's family and dependents. Apparently in a deliberate effort to avoid this result, Congress set up a schedule of successive classes of persons who were entitled to take the renewal as "a new personal grant of a right." 131

These features made renewals so unusual that, immediately after the 1909 Act came into effect, there was uncertainty whether this could really be what Congress intended.132 Within a few years, however, it had been firmly established 133 that a proprietor or assignee,

127 Caterini, in op. cit. supra note 121, at 378; accord, Shapiro, Bernstein & Co. v. Bryan, 123 F. 2d 697 (2d Cir. 1941); BALL, op. cit. supra note 122, § 88, at 192; Bricker, supra note 121, at 27; 30 SO. CAL. L. REV. 532, 537 (1957); see SPRING, RISKS AND RIGHTS IN PUBLISHING, TELEVISION, RADIO, MOTION PICTURES, ADVERTISING, AND THE THEATER 95 (2d ed. rev.).

123 See H.R. REP. NO. 2222, 60th Cong., 2d Sess., 15 (1909); Comment, 33 N.Y.U.L. REV. 1027, 1029 n. 20 (1958); 6 U. DET. L.J. 79, 83-84 (1943); notes 87-89 supra, and text thereto.

129 S. REP. NO. 6187, 59th Cong., 2d Sess. 8 (Pt. I, 1907).

130 BALL, op. cit. supra note 122, § 88, at 193.

131 Ballentine v. De Sylva, 226 F. 2d 623, 629 (9th Cir. 1955), aff'd, 351 U.S. 570 (1956); accord, Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373 (1960).

132 The lower court in White-Smith Music Pub. Co. v. Goff, 180 Fed. 256 (C.C.D.R.I. 1910), held that the proprietor-assignee had no right to claim renewal himself. However, the judge could not bring himself to believe that the two terms were discontinuous and that the proprietor's rights were cut off at the end of the first term; he suggested that if the copyright had been assigned, perhaps the work went into the public domain at the end of the first term. It also appears that the Copyright Office was subjected to considerable pressure in 1909 and 1910 to register renewal claims in the names of proprietor-assignees. See 28 OPS. ATT'Y GEN. 162 (1910).

183 White-Smith Music Pub. Co. v. Goff, 187 Fed. 247 (2d Cir. 1911); Silverman v. Sunrise Pictures Corp., 273 Fed. 909 (2d Cir. 1921); Harris v. Coca-Cola Co., 73 F. 2d 370 (5th Cir. 1934), cert. denied, 294 U.S. 709 (1935); 28 OPS. ATT'Y GEN. 162 (1910).