75 The term "valuable consideration" has also been the subject of judicial construction. In Rossiter v. Vogel, a promise to pay royalties was held not to constitute valuable consideration within the meaning of section 30. And recently, a court disregarded a recital and testimony that the assignor had received one dollar as consideration.76 The contours of "notice" and "valuable consideration" have been dealt with in only a few cases construing these terms with specific reference to section 30. But these concepts have developed considerable judicial gloss in other general areas of law-negotiable instruments, contracts, etc.-as well as in other types of recording statutes. Thus, the court in the Rossiter case relied on the meaning of "valuable consideration" in recording acts generally, as disclosed in a treatise on trusts and in cases outside the realm of 17 U.S.C. 30. These terms therefore have fairly well fixed meanings which are appropriately applicable in the copyright context. There would seem to be no necessity to define these terms further in the copyright statute. D. THE RELATIONSHIP OF RECORDATION TO COPYRIGHT FORMALITIES The recordation of transfers is not, in any true sense, a copyright formality. Thus, recording is not a condition for the subsistence of copyright protection but is a requirement for establishing, against third persons, a transferee's acquisition of ownership of a subsisting copyright. If this requirement is to have any meaning, it must be combined with sanctions for failure to record-and these sanctions would almost necessarily limit the transferee's ownership though they would not affect the subsistence of the copyright with some other person as the owner. Thus, the present law sanctions the failure to record an "assignment" by depriving the assignee of ownership as against subsequent purchasers. The present law also contains another provision under which the failure to record, coupled with the naming of the assignee as the owner in the copyright notice, may result, under the requirements governing copyright notices, in invalidating the copyright. This results indirectly from section 32 of the present statute, which provides: When an assignment of the copyright in a specified book or other work has been recorded the assignee may substitute his name for that of the assignor in the statutory notice of copyright prescribed by this title.78 The notice of copyright prescribed by section 19, must include "the name of the copyright proprietor." Section 32 was introduced to the law in 1909, as part of a general effort to liberalize the notice provisions.79 The need for a more flexible notice requirement had been demonstrated by two celebrated decisions of the Supreme Court in 1903. In Mifflin v. White 80 the Court held that publication of Holmes' "The Professor at the Breakfast Table" in book form with notice in the name of the author invalidated the copyright obtained when the work had been first published serially with notice in the name of the periodical publisher. The same result 75 134 F.2d 908 (2d Cir. 1943). 76 Venus Music Corp. v. Mills Music Inc., 156 F. Supp. 753 (S.D.N.Y. 1957). 77 134 F.2d at 911. 78 17 U.S.C. § 32 (1952). 79 H.R. REP. NO. 2222, 60th Cong., 2d Sess. (1909), quoted in HOWELL, THE COPYRIGHT LAW 275 (3d ed. 1952). 80 190 U.S. 260 (1903). was reached in Mifflin v. Dutton,81 where the order of publication was reversed. Forfeitures of this nature can now be avoided under the provisions of section 32. But apparently its provisions are to be read literally. In Group Publishers, Inc. v. Winchell,82 it was held that substitution of the assignee's name in the notice can be made without forfeiture only if the assignment has been recorded.83 It still appears that the word "may" in section 32 indicates that substitution is merely permissive; notice in the name of the assignor may be continued. But where substitution of the assignee's name is desired, it can be made only pursuant to a recorded assignment. Since the provisions of section 32 link the recordation of assignments with the notice requirement, it is not surprising that their counterpart is not found in foreign laws or in those revision proposals making no provision for a notice of copyright. The provisions of section 32 were adopted with respect to optional notice in the Dallinger bill and were retained with respect to the requirement of notice in the Dill 85 and Duffy 86 bills. 84 Section 32 is open to criticism on policy grounds, and its revision has been suggested.87 If future revisions of the law retain the mandatory copyright notice, the interest underlying the provision (encouragement of recordation and an effort to aid the public in locating the copyright owner) must be weighed against the likelihood of unintended forfeitures. Or perhaps such forfeitures could be avoided, while encouraging recordation, by a general provision that errors in the notice may be cured by the subsequent recordation of corrective data.88 A different situation is presented if a revised copyright law provides for optional notice or optional registration, or both. In that event there appears to be sentiment favoring even more stringent sanctions for recording transfers than those contained in the present law. It has been suggested that, while omission of, or errors in the notice should not forfeit copyright, the public should at least be entitled to deal safely with the person identified as the copyright owner in the notice, unless the Copyright Office records reveal different ownership. Under this system, errors or omissions in the notice might be cured by registration or recordation of documents, and registration or recordation would be required to establish ownership in a person other than the one named in the notice. Similarly, it has been suggested that the present system of registering copyright claims be dropped in favor of a more elaborate approach to the recordation of transfers of copyrights. The key to an effective recording system is its completeness, and ideally all links in a chain of title should be placed on record. In the absence of a basic registry system, identifying the work, the first owner of the copyright, the date from which the term is computed, and other pertinent information, the recording of transfers would often fail to identify the work 81 190 U.S. 265 (1903). 82 86 F. Supp. 573 (S.D.N.Y. 1949). 83 See Wrench v. Universal Pictures, 101 F.Supp. 374, 378 (S.D.N.Y. 1952). 84 Section 49, H.R. 8177, 68th Cong. 1st Sess. (1924). 85 Section 16, S. 342, 73d Cong. 1st Sess. (1933). 88 S. 3047, 74th Cong., 1st Sess. (1935) which left Sect on 32 of the present law unchanged. 87 American Bar Association Copyright Committee, Report of Subcommittee on Proposed Amendments to § 21 (mimeo. in Copyright Office Library 1950). 88 The question of the assignee's name in the notice appears to be a matter for consideration primarily in connection with the copyright notice problem. See Doyle et al., Notice of Copyright [Copyright Law Revision Study No. 7 in the present series of Committee Prints], pp. 18 and 48. covered by the transfer, the term of the copyright, and especially the derivation of the transferee's claim to ownership. On the other hand, it may be contended that it is asking too much of an assignee not only to record his own assignment but also to register the initial claim and to record any intervening assignments. V. RECAPITULATION OF BASIC ISSUES A. Should a system for the recordation of transfers of copyright be maintained in a revised law? B. If so, should the scope of recordable documents expressly include 1. Exclusive licenses? 2. Mortgages? 3. Nonexclusive licenses? 4. Other documents? C. Assuming that a subsequent bona fide assignee should be entitled to rely upon the absence of any record of a prior assignment, should a subsequent exclusive licensee be entitled to the same protection? a subsequent nonexclusive licensee? D. Should the elements of the present recording system be modified so as to 1. Eliminate the requirement that the second purchaser must himself record in order to prevail against a prior unrecorded transfer? 2. Eliminate the requirement that the second purchaser be free from actual notice, thus leaving priority in recording as the basic criterion? E. Should the initial 3- and 6-month period or some other period of grace be retained? If so, should a transferee who records after such period prevail if he records before a subsequent transfer is executed? or before a subsequent transfer is recorded? F. To what extent should the recordation of transfers be used as a supplement to or substitute for the present formalities of notice and registration? G. Should the recordability of documents, or the constructive notice they afford, be conditioned upon compliance with formal requisites such as 1. Submission of a signed original or a certified copy? 2. Specification of— (a) The transferee? (b) The subject matter of the transfer? (c) The nature of the rights transferred? H. Should the present statute be clarified as to the discretion of the Register of Copyrights in recording or refusing to record documents? |