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Chapter XI

Renewal of Copyright

In General

The renewal of copyright has been a characteristic feature of our law from the beginning, having been taken from the English Statute of Anne (1710). Other countries have long since replaced it in favor of either a straight term of years or for the life of the author and a designated number of years following his death, usually 50 years, in accordance with the Berne Convention.

While the Copyright Act of 1909 uses the words "renewal and extension", it is not really a continuing right but is a new grant of copyright for a second term of 28 years upon the filing of an appropriate application in the Copyright Office within one year prior to the expiration of the original term. This right, therefore, does not follow the ordinary rules of law in case of testacy or intestacy and pass to the author's estate if he dies before the renewal year arrives. It is given directly by the statute to the designated beneficiaries and in the order of preference named therein. Hence the author cannot bequeath his inchoate right to renew, nor bind the surviving beneficiaries to renew in behalf of someone designated by him in a prior contract. White-Smith Music Pub. Co. v. Goff, 187 F. 247 (CCA 1, 1911); Silverman v. Sunrise Pictures Co., 273 F. 909 (CCA 2, 1921); Fox Film Corp. v. Knowles, 261 U. S. 326 (1923).

The first Federal Copyright Act of 1790 (1 St. L. 124), gave the renewal privilege to the author, his executors, administrators, or assigns; but all succeeding legislation, down to the present Act of 1909, limited the privilege of renewal to the author, his widow or surviving children. The reason for this policy is thus explained in the Report accompanying the bill which became the present Act of 1909 :

"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 28 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.” [H. R. Rept. 2222, 60th Cong., 2d Sess. see Appendix; see also Harris v. Coca-Cola Co., 23 USP.Q. 182 (CCA 5, 1934).]

It was-recognized by the committee, however, that in the case of certain works the publisher would be the person best entitled to take the renewal, as proprietor; for example, in the case of composite works where the contributing authors are often very numerous and widely scattered, so that it would be difficult if not practically impossible to secure their cooperation in seeking a renewal; dictionaries and similar works involving the labors of many persons, whose identity becomes lost in the work as a whole; and likewise in the case of works made by the author in the capacity of an employee for hire.

Renewal of Copyrights Acquired under Present Law (Section 23)

Section 23 governs the renewal of copyrights originally secured under the present Act whether for published or unpublished works. The first proviso states that in the case of (1) any posthumous work or any periodical, cyclopaedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or (2) any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author), or (3) any work copyrighted by an employer for whom such work is made for hire/in all these cases 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.” The exercise of this right is not restricted to the original proprietor but includes his successor in interest; in other words, whoever may be the proprietor at the time the renewal year arrives. Shapiro, Bernstein & Co., Inc. v. Bryan, 41 USPQ 134 (1939), aff'd 51 USPQ 422 (1941).

Notwithstanding that a whole year is given for filing the application, it is surprising how frequently applicants defer mailing it until the eleventh hour, thereby running the risk of losing the renewal term altogether if for any reason the application fails to reach its destination in time. In such cases it is advisable to send also a telegram setting forth all the essential facts called for in the formal application card.

In the case of a work published and copyrighted in the first instance under section 9, the first term must be reckoned from the date of publication, and not from the date of deposit of copies. On the other hand, in the case of an unpublished work

. copyrighted under section 11, it is the date of the original deposit that governs, and not the date of subsequent publication. But if such work is published with substantial new matter, an additional application may be filed at the proper time to cover the new matter.

Renewable Works

(1) "Posthumous works". It is difficult to see why these were included in this proviso, since it has the effect of depriving the author's spouse and children from the renewal privilege in case the original copyright was secured by the publisher. In principle, they should have the same right of renewal as when the work is published during the author's life.

(2) "Composite works". These embrace compilations, cyclopaedias, periodicals, and similar collections of independent and distinct works by various authors, brought together and published as one work. Harris v. Coca-Cola Co., 16 USPQ 222 (1932); Shapiro, Bernstein & Co., Inc. v. Bryan, 51 USPQ 422 (CCA 2, 1941). These may of course include new matter not previously published as well as matter already published or in the public domain. A work made up of selections from the works of a single author would not be renewable as a composite work. The application in such case should be made in the name of the editor or compiler as "author”, save where he acted in the capacity of an employee for hire (see below, par. 4).

(3) "Any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author)." It is not clear why corporate bodies were singled out for this particular blessing, nor just what kinds of works it was intended to embrace. Some light, however, is shed upon the subject in the original hearings (Vol. III, 1908, at p. 88), where it is said that the words in the parenthetical clause “(otherwise than as as

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signee or licensee of the individual author)”, “are necessary to cover the case of a personal copyright taken out by an incorporated firm of publishers.” That is to say, 'presumably, to cover the case of a work by an individual author who assigned the right to secure copyright for the first term to a “corporate body”, in contrast to works of an impersonal character, such as digests and dictionaries, where the identity of the individual authors is merged in the work as a whole. It is to these latter types of works that this clause seems especially applicable, composite works being already covered by the preceding clause.

(4) Any work originally copyrighted by "an employer for whom such work is [was] made for hire.” In the original draft of this clause the term "for salary" was used instead of “for hire”, and it seems reasonable to suppose that the substitution was made for the purpose of broadening the basis of renewal beyond employment under a term contract on a regular salary. But sometimes, when the time for renewal arrives, a difference of opinion develops between the proprietor and the author, the latter claiming that he did not make the work in the capacity of a "hired man" but as a salesman for his product. It then becomes a matter of the proper interpretation of the original agreement between the parties. The Copyright Office does not undertake to decide the issue in such cases, but will register separately for each party on proper applications, leaving it to the courts to settle the question of ownership.

(5) Contributions and other works renewable by author, etc. The second proviso to section 23 brings the author into the picture. As originally enacted it provided :

“That in the case of any other copyrighted work [than as specified above], 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."

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By amendment of this proviso, effective March 15, 1940, the italicized words, “when such contribution has been separately registered”, were eliminated, thus saving the renewal privilege for the author, widow, etc., in the case of all such contributions whether separately registered or not. Prior to the amendment the author, widow, etc. could only secure control of any contribution which had not been separately registered by assignment from the proprietor of the composite work, who was in a position, if so disposed, to exact remuneration. Very often, however, when the time for renewal arrived, the original proprietor had ceased to exist, leaving no successor in interest who could act or be found; in consequence of which, many contributions having great survival value fell into the public domain. It was due mainly to this consideration that Congress saw fit to strike out the restrictive phrase. (Senate Report No. 465 accompanying the bill, S. 547, 76th Cong., 1st Sess.)

Registration of Renewals
The closing proviso to section 23 reads:

"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.”

For reasons heretofore mentioned (p. 96), the term "first publication" must here be deemed to include the limited kind of publication effected by deposit under section 11 to secure copyright for a work not reproduced for sale.

The renewal claimant has nothing to do with registration, That is the business of the Copyright Office. If the claimant has duly filed his application and the Office declines to register, he does not thereby lose his right to maintain suit for subsequent infringement. In White-Smith Music Pub. Co. v. Goff, 187 F. 247 . (CCA 1, 1911), the court said: "It [complainant] offered registration under the statute, and, although registration was refused, yet it fully complied with the requirements of law, and is entitled to maintain this suit if it had any statutory right to the extension.” The court found, however, that the complainant had no such statutory right in the capacity merely of an "assignee” of the original copyright, and the refusal of the Copyright Office to register on that basis was therefore fully justified.

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