(2) During the twenty-eighth year, before a claim has been registered, the interest of the persons entitled to claim (or of their assignees) is still contingent or inchoate, but is now capable of being presently vested.613 However, should the person entitled to claim die before his application is submitted, the rights of his heirs, legatees, or assignees are cut off, and the members of the next statutory class become entitled to claim.614

(3) As soon as a valid renewal claim is registered, the renewal is "vested in interest”—that is, there is a "present fixed right of future enjoyment." 615

616

(a) At this point the rights of the group entitled to claim are determined and indefeasible, and the contingent rights of the other statutory classes are cut off and destroyed. The death, during the renewal year, of the registered claimant or of any other entitled to claim, will not affect the validity of the renewal, the rights of the other members of the class, the rights of assignees, or the rights of his own heirs or legatees.617

(b) Renewal by one of a group entitled to claim probably vests legal title in the registered claimant and equitable title in the other possible claimants.618 Later renewal registrations in the names of the other claimants may convert their equitable rights into legal title, but it cannot change the persons entitled to ownership, since these were fixed when the first claim was registered.619

(4) At the beginning of the renewal term itself, the renewal copyright becomes "vested in possession"-that is, a right of present enjoyment comes into existence.620

5. Notice of renewal copyright

A question of considerable practical importance, on which the statute is completely silent and the authorities provide no definite answer, is the form of notice required for copies published after the renewal term begins. Does the notice on copies already printed have to be changed? On new copies, will the old notice be sufficient? Will a new notice, giving only the date of renewal and the name of the renewal owner, be sufficient alone? What is the date of renewal-the date of registration or the date the renewal term begins? Who is the renewal owner-the registered claimant or his assignee? 621

613 See Silverman v. Sunrise Pictures Corp., 273 Fed. 909 (2d Cir. 1921); White-Smith Music Pub. Co. v. Goff, 187 Fed. 247 (1st Cir. 1911); Von Tilzer v. Jerry Vogel Music Co., 53 F. Supp. 191 (S.D.N.Y. 1943), aff'd sub nom. Gumm v. Jerry Vogel Music Co., 158 F.2d 516 (2d Cir. 1946).

614 2 LADAS, op. cit. supra note 588, at 773-74; 2 SOCOLOW, THE LAW OF RADIO BROADCASTING § 686, at 1218; Brown, supra note 610, at 473, 481; Note, 10 AIR L. REV. 198, 204 (1939).

615 BLACK, op. cit. supra note 608, at 1811.

618 See Rossiter v. Vogel, 134 F. 2d 908 (2d Cir. 1943); Rose v. Bourne, Inc., 176 F. Supp. 605 (S.D.N.Y. 1959), aff'd on other grounds, 279 F. 2d 79 (2d Cir.) cert. den, 364 U.S. 880 (1960); HOWELL, op. cit. supra note, 589, at 116; Bricker, supra note 591, at 26; Comment, 36 U. DET. L.J. 66, at 68 n. 15 (1958).

617 Bricker, supra note 591, at 26; Zissu, Works-Subject of Copyright-Rights in Statstory Copyrights 5 (Practising Law Institute, mimeo outline, 1949); Comment, supra note 616, at 68 n. 15.

618 See notes 540-46 supra, and text thereto.

619 See 2 SOCOLOW, op. cit. supra note 614, § 679, at 1207-09.

620 BLACK, op. cit. supra note 608, at 1811.

621 The statute, 17 U.S.C. § 32 (1958), permits substitution of an assignee's name in the notice only after the assignment has been recorded. See NICHOLSON, Ä MANUAL OF COPYRIGHT PRACTICE 162 (2d ed. 1956).

It has been suggested that, although probably sufficient,622 retention of the original notice might be misleading to the public.623 On the other hand, though at least one court has upheld a notice limited to the facts of renewal,624 there is little justification in the statute for such a result.625 Because of this uncertainty the commentators have almost all recommended use of two notices or a combined notice setting forth both the facts of original publication and renewal.626

IV. REVIEW OF BASIC PROBLEMS

A. IN GENERAL

Renewals have become so complicated and controversial that it is hard to take a fresh look at the problem.627 Nevertheless, it appears that this is what those responsible for the forthcoming general copyright law revision will have to do, if they are to avoid the outcome of previous revision efforts. They should try to see through the complexity of the present provision, to put aside their own preconceptions, and to determine objectively whether renewals have any features worth saving. In doing this, they should recognize that the main aspects of the renewal device division of copyright duration into two terms, and reversion of ownership—are two different things that should be considered separately.

B. RENEWALS AS AN ASPECT OF DURATION

At present about 15% of subsisting copyrights are being renewed; in fiscal 1959, for example, roughly 21,500 copyrights were renewed, as against 124,500 that went into the public domain at the end of their first 28-year term.

Inevitably, a person's reactions to these figures will be colored by his own philosophy of copyright. There are many who believe that the longer a copyright lasts the better; and that it does no harm if the bulk of copyrighted works are protected longer than necessary, provided those works with continuing commercial value are given adequate protection. Others argue that a work can continue to have scholarly, historical, or other value after its commercial value is gone;

622 See 2 LADAS, op. cit. supra note 588, at 774; Henn, supra note 584, at 459. 623 BOUVÉ, op. cit. supra note 587, at 41-42; WEIL, AMERICAN COPYRIGHT LAW $957, at 368-69 (1917); Bricker, supra note 591, at 26-27; Kupferman, supra note 588, at 734.

624 Fox Film Corp. v. Knowles, 274 Fed. 731 (E.D.N.Y. 1921), aff'd mem., 279 Fed. 1018 (2d Cir. 1922), rev'd on other grounds, 261 U.S. 326 (1923); see Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 42 F. Supp. 859 (S.D.N.Y. 1942). But see Von Tilzer v. Jerry Vogel Music Co., 53 F. Supp. 191 (S.D.N.Y. 1943), aff'd sub ́nom. Gumm v. Jerry Vogel Music Co., 158 F. 2d 516 (2d Cir. 1946).

25 See BOWKER, COPYRIGHT ITS HISTORY AND ITS LAW 118 (1912); Bricker, supra note 591, at 26-27; Kupferman, supra note 588, at 734.

625 BOUVÉ, op. cit. supra note 587, at 42; BOWKER, op. cit. supra note 625, at 118; HOWELL, op. cit. supra note 589, at 119; 2 LADAS, op. cit. supra note 588, at 774; NICHOLSON, op. cit. supra note 621, at 162; SHAFTER, MUSICAL COPYRIGHT 171 (2d ed. 1939); WARNER, op. cit. supra note 605, § 83, at 261; WEIL, op. cit. supra note 623, § 957, at 369; Bricker, supra note 591, at 27; Henn, supra note 584, at 459; Kupferman, supra note 588, at 734.

67 For discussions of some of the philosophical bases of and arguments for and against renewal of copyright, see EVANS, COPYRIGHT AND THE PUBLIC INTEREST 16-20 (1949); Bricker, supra note 591, at 45-46; Chafee, Reflections on the Law of Copyright: [Pt.] II, 45 COLUM. L. REV. 719, 721-25, 732-33 (1945); Finkelstein, The Copyright Law-A Reappraisal, 104 U. PA. L. REV. 1025, 1042-54 (1956); Hollander & Diamond, The Right of Renewal-Confusion's Masterpiece, 64 COM. L.J. 96, 98 (1959); Kupferman, supra note 588, at 735; Young, The Copyright Term, 7 COPYRIGHT LAW SYMPOSIUM (ASCAP) 139, 153-54, 162, 168-71 (1956); Comment, 36 U. DET. L.J. 66, 74-77 (1958).

they assert that it hampers free cultural and intellectual interchange to have great numbers of ephemeral and non-commercial works tied up for long periods of time, when no one is interested in asserting rights in them.

It is worth noting that a number of foreign copyright laws have provisions limiting the duration of copyright or of certain rights, unless the work continues to be used or made available to the public. Most patent and trademark laws have renewal provisions aimed at the same objective. The American renewal system also accomplishes this result, and avoids the need for providing special terms for particular types of works (photographs, motion pictures, etc.).

Renewal registration can be a burden, and failure to observe the time limits can have drastic and unfortunate results. However, most of the troublesome problems connected with renewal registration arise from uncertainty as to the right to claim and own a renewal copyright, and renewal could become a routine formality if the reversion were removed. Even the problems of failure to meet the time limits. might be ameliorated by provisions for a longer period, or for grace periods and reinstatement as in foreign patent and trademark laws. As a registration formality, the usefulness of renewal in leading to the true owner of the second term is sharply limited by two possibilities that the renewal term may have been assigned, or that there may be others in the same class of renewal claimants. On the other hand, there are cases in which renewal registration offers a helpful starting point in searching copyright title, and improvements in the whole scheme of registration and recordation might increase the number of these cases.

C. RENEWAL AS A REVERSION OR RESERVATION OF AUTHOR'S RIGHTS

Probably the main purpose of the present renewal provision was to protect the author against disadvantageous bargains-to give him a second chance to realize financial benefits from his creation. This underlying purpose has been called paternalistic and in conflict with principles of freedom of contract. On the other hand, an analysis of the copyright laws of the world reveals a tendency to treat copyright as something different from ordinary goods and chattels, and to establish restrictions on alienability and control over contract relations for the benefit of the author and his family. There is an apparent conviction that copyright involves an element of personal creativity entitling an author to special consideration in his contractual dealings, together with a recognition that when most copyright bargains are made there is no way to judge the ultimate value or life of the work.

If one assumes that there is merit in the idea of legal provisions preserving some continuing interest in the author, it is still necessary to ask whether the American renewal system is successful in accomplishing this result. On balance, it seems that the probable answer to this question would be a qualified "no."

(1) The all-or-nothing approach of the reversion can sometimes have drastic effects upon the interests of publishers and other users. This danger, coupled with uncertainty as to ownership of the renewal and inability to insure exclusivity, may reduce the value of a renewal or actually prevent the use of a work.

(2) "Split renewals," in which co-owners of a renewal assign their rights to different users, create accounting problems and may dissipate the value of a copyright.

(3) The complexity and uncertainty of the present law, deriving partly from the nature of the reversion and partly from poor legislative drafting, stands in the way of its successful operation. The task of revising the present provision to make it clear and consistent would be enormously difficult, and the prospect of simply repealing the reversionary renewal is a tempting one.

Notwithstanding these serious detriments, some individual authors and their families appear to have benefitted directly from the renewal provisions. Moreover, although there are various reasons why authors are in a better general bargaining position today than they were fifty years ago, renewals have apparently played a part in this change. In at least one case, the renewal provision was a pivotal factor in the formation and development of a major authors' protective society and its uniform contract.628

All things considered, it appears that although the American renewal system conveys some benefits to authors and their families, it has been a remarkably inefficient and burdensome method of accomplishing this result. At the same time, it is important to realize that the reversionary renewal is the only provision in the U.S. copyright law that attempts to preserve the author's interests or to give him an advantage in his contract relations. If the renewal provision were repealed and nothing were substituted in its place, the United States would be moving in a direction opposite to that of most other countries. There are many alternatives to a reversionary renewal system, and at least one of them has been seriously considered in past revision efforts. For example, the "Shotwell Committee" bill incorporated a 25-year limit on the duration of assignments and licenses, with a reversion to the author or certain of his heirs, but with a right to continue publishing under a royalty agreement. When seen in perspective this device appears closely similar to the existing renewal system, and would share many of the same advantages and disadvantages. Other provisions found in foreign laws and intended to give the author a continuing interest in his work include:

(1) Requirement that a contract specify the exact nature of each right transferred, with special requirements concerning transfers of an entire copyright;

(2) Prohibition against assignments and exclusive licenses for a lump sum, except under specified conditions;

(3) Requirement that contract must specify certain things (e.g., duration of each right transferred, period within which work must be exploited, remuneration, etc.), with presumptions to control in case certain provisions are omitted;

(4) Reversion to the author if the transferee fails to exploit or continue exploitation within a reasonable time;

(5) Establishment of conditions limiting right of transferee to retransfer copyright or rights under the copyright without the author's permission;

628 See Klein, Protective Societies for Authors and Creators, in 1953 COPYRIGHT PROBLEMS ANALYZED 19, 32-41 (1953).

(6) Establishment of controls over distribution of royalties collected by performing rights societies and other authors' protective associations.

D. CONCLUSION

The present problems of renewal revolve around the reversion to the author and his family. There is no reason why renewals could not be kept as a device for adjusting the term, while dropping the reversion altogether. For example, the copyright could still be divided into terms, with provision for extension by anyone with a legal or equitable interest in a copyright; the action of one person should be sufficient to extend the term for the benefit of everyone who has any interest in the copyright, without any change in (or loss of) ownership. At the same time, this system would still permit the large majority of works to enter the public domain twice as soon as they would under a straight term. Some features of the reversion could, if desired, be preserved by separate provisions dealing with assignments and contract relations.

As shown in the history of past revision efforts, the question of what to do with subsisting copyrights is an important and difficult problem that should not be dismissed lightly. With respect to copyrights in their first term, there are strong policy arguments against cutting off the future interests of prospective renewal claimants and their assignees. And, should the duration of copyright be extended beyond 56 years, preponderant sentiment in the past has favored having the extension revert to the author or his family; but in this situation the rights of transferees has always been a question. These problems promise to be among the most troublesome the legislative drafters will have to face.

V. SUMMARY OF ISSUES

(1) Should all of the essential elements of copyright renewal (division of duration into terms, registration as a requirement of the longer term, and reversion of ownership) be retained?

(2) If so, what major improvements or changes should be made in the present renewal provisions:

(a) With respect to the time limits and formalities of renewal registration?

(b) With respect to those entitled to claim renewal?

(c) With respect to other problems (assignability, rights of coowners, time of vesting, etc.) not now specified in the statute?

(3) If the present reversionary renewal system is not retained, should there be any provisions permitting works without continuing commercial value to enter the public domain sooner than other works: (a) By means of a non-reversionary renewal system?

(b) By other means?

(4) If the present reversionary renewal system is not retained, should there be any provisions for a reversion or reservation of authors' rights:

(a) By means of limitations on assignments?

(b) By other means?

5) What provision should be made for subsisting copyrights: (a) If in their first term?

(b) If the duration of copyright is extended beyond 56 years!