CONTENTS B. Acknowledgment of assignments executed abroad.. C. Discretion of the Register of Copyrights as to recordation. B. Time limits for recordation... C. Concepts of "notice" and "valuable consideration" D. The relationship of recordation to copyright formalities- Page THE RECORDATION OF COPYRIGHT ASSIGNMENTS AND LICENSES I. INTRODUCTION 1 2 The assignability of copyright has always been accepted in AngloAmerican jurisprudence.1 Recent judicial developments in this country reflect a trend toward even greater alienability of copyright. For example, in upholding the assignability of contingent renewal rights, Justice Frankfurter relied upon "the momentum of history." Commercial transactions involving complex transfers of copyright have received judicial support and appear to be increasing in number and size. Increases in the economic importance, variety, and complexity of copyright dealings may well be accelerated by the development of new media for the exploitation of copyrightable works. It thus appears particularly necessary to consider, in any revision of the law, provisions for a system of recording documents pertaining to the ownership of copyrights in order to (1) permit the copyright owner to enjoy the benefits of constructive notice afforded by an effective recording scheme; and (2) furnish the prospective purchaser or user with reliable records of copyright ownership. A recording system of this type would be even more necessary if the new copyright law adopted the principle of divisible copyright, thus facilitating more splintered transfers. The complex nature of copyright transfers is but one of the reasons why an effective recording system seems warranted. Perhaps more basic is the intangible nature of the work copyrighted. A copyrighted work cannot be the subject of physical possession, and this fact would appear to make some system of notice of ownership essential. This argument is strengthened by the fact that intellectual works cannot be restrained geographically. Justice Holmes noted that a copyright "may be infringed a thousand miles from the owner." 3 The importance of recording complex and economically significant transactions involving intangible and diffuse property has apparently been generally recognized. Thus, revision proposals, such as the Dallinger bill, eliminating formalities for obtaining copyright, nevertheless contained strong provisions for recordation of transfers. In fact, if the mandatory notice and registration requirements were eliminated or modified, recordation of transfers could be made to 1 The Statute of Anne, 8 Anne c. 19 (1709), protected "the author and his assigns”. 2 See Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 656 (1943). White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 19 (1908) (concurring opinion). 5 perform an even more vital informative function. In any event, the scope, effect, and mechanics of recording transfers appear to raise more problems than the basic question of whether or not an effective system of recordation is desirable. Section 30 of the present copyright statute provides: Every assignment of copyright shall be recorded in the copyright office within three calendar months after its execution in the United States or within six calendar months after its execution without the limits of the United States, in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, whose assignment has been duly recorded. The paucity of litigation involving this section does not reflect its commercial importance. An interest in maintaining or expanding this provision has been strong during all prior attempts to revise the Copyright Act of 1909. There is every indication that this interest persists with respect to the revision efforts now in progress. The text and philosophy of the present recordation provision raise many of the issues that will be relevant to any revision of the copyright law. These include the following: 1. Scope of recordation The fact that the present provision refers only to the recordation of "assignments" raises questions as to the scope of that term. Should partial transfers (which may also be denominated as "exclusive licenses") be within the sweep of recordable transfers? Should recordability be extended expressly to other documents relating to the ownership or use of copyrights, such as wills, documents of heirship, contracts, changes of names, etc.? Should recordability be extended to nonexclusive licenses? Similarly, should an exclusive or nonexclusive licensee be considered a "subsequent purchaser" for this purpose? 2. Requirements for effective recordation What minimum standards-with respect to execution and acknowledgment, identification of parties and subject matter, the nature of the document recorded, etc.-should be met before recordation of a transfer can operate as constructive notice against third parties? And to what extent should the Register of Copyrights be given discretion to determine the recordability of a particular paper? 3. Effects of recordation The provision in the present law for a 3 or 6 months period for recording, and the requirement that a subsequent purchaser must himself record to obtain protection raise questions of priority as between two transferees: Should the initial 3 or 6 months period be maintained? Should priority in recording, with or without the initial 3 or 6 months period, be controlling? What are the proper dimensions of the concepts of "valuable consideration" and "notice" on the part of a subsequent purchaser? To what extent should recordation be $ Memorandum of Edith Ware for Committee on Patents, June 29, 1939, 3 Shotwell Papers 385. The broadcasters, on the other hand, felt it unfair and inconsistent to remove registration requirements for authors, while at the same time imposing on grantees and users an obligation to record every grant of a right in a copyright. The Shotwell Committee examined the copyright law and its problems in the late 1930's and drafted proposed revisions. The Committee's efforts culminated in the bill introduced in Congress by Sen. Thomas, S. 3043, 76th Cong., 3d Sess. (1940). The minutes, memoranda, and proposals of this Committee, though unpublished, are collected and paginated in the U.S. Copyright Office. This collection will be referred to herein as "Shotwell Papers." Id. at 5, 17-19. 17 U.S.C. § 30 (1952). |