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COMMENTS AND VIEWS SUBMITTED TO THE

COPYRIGHT OFFICE

ON

JOINT OWNERSHIP OF COPYRIGHTS

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COMMENTS AND VIEWS SUBMITTED TO THE COPYRIGHT OFFICE ON JOINT OWNERSHIPS OF COPYRIGHTS

By Samuel W. Tannenbaum

SEPTEMBER 11, 1958.

The study "Joint Ownership of Copyrights" is a fine treatise covering the development and legislative history of the concept of joint authorship of copyrighted works. It also points up the doctrines which merit further study and consideration.

Charts 1 and 2, which define joint authorship in terms of resultant work and in terms of property rights respectively, summarize graphically the substance of the pertinent sections of the intricate foreign statutes.

In my opinion, the study properly presents two possible alternatives: (1) Shall one coowner have the right to use or license the work without the consent of the other coowners, with the obligation, however, to account to the other coowners for their share of the proceeds; or (2) shall the consent of all the coowners be a prerequisite for the use or license of the work by one coowner or third parties? The judicial tendency in the United States is to answer affirmatively part (1) in the preceding paragraph. The British law, however, appears to adopt the affirmative of part (2) above.

If we advocate the continuance of the U.S. doctrine, favoring free exploitation of the property, we can rely upon decisions typified by Jerry Vogel Music Co., Inc. v. Miller Music Co., 74 N.Y. Supp. 2d, 425 (1st Dept. 1947) (the affirmance of which in 299 N.Y. 782 (1949) was inadvertently omitted in footnote 52 of the study). If it be deemed more desirable, a satisfactory statute codifying the principle of the above case, may be enacted.

On the other hand, if we favor the English doctrine, it would be necessary to resort to statutory enactment.

In determining which doctrine is preferable we must decide between the following philosophies: The English, which as indicated by Mr. Cary, stresses the importance of a coowner being secure in the ownership of his property; or the American, which results in the greater facility of the commercial exploitation of the work.

In my opinion, the U.S. doctrine is preferable. If a coowner, in disposing of the property or an interest therein, perpetrates a fraud or commits a breach of the fiduciary relationship, the innocent victim has adequate legal redress by an action for an accounting or an action for fraud.

In the absence of fraud or breach of good faith, as a practical matter, the coowner who concludes a deal with a third party is just as anxious as the other coowners to obtain the best terms, the benefits of which would accrue to the other

coowners.

Once we adopt either one of the above viewpoints, there still remains the question of the apportionment of the proceeds among the coowners.

While DeSylva v. Ballentine, 351 U.S. 570, 582 (1956), held that the widow and child of the deceased author take the renewal of copyright as a class, the court declined to pass on the question of the apportionment of the proceeds in the renewal, for the reason that the parties had not argued the point nor was it passed on by the lower court.

As the widow and children own the renewal copyright as coowners, it would be most helpful that Mr. Cary's study be not concluded, until consideration be given to the various theories which have been advanced with respect to the apportionment of the proceeds.

May I suggest the following items for further study:

(1) Should the widow take one-half and the children collectively take the other half?

(2) Should each member of the class take per capita, i.e., should the widow together with each child share equally?

56580-60-9

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