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such registration, for “American copyright” has thereby been secured.
The exemption in subsection (c) in favor of books in foreign languages applies to a case where only a translation into English has been copyrighted in this country. But if copyright has been secured in the United States for the original, the importation of copies of the authorized foreign edition is likewise necessarily sanctioned by virtue of the exemption in section 15. This subsection applied to the situation under the prior law but is out of line with the present law.
In all cases where copies of copyrighted books are permitted to be imported by individuals, libraries, etc., the closing proviso expressly prohibits any use to be made thereof in violation of the rights of the proprietor of the American copyright. Unlawful Importation (Section 33)
This section was amended by Act approved April 11, 1940 (Public No. 450, 76th Cong.), for the more effective administration of the provisions of section 30 relating to piratical copies of any copyright work and of section 31 relating to books prohibited importation. (The new Customs Regulations formulated under the amendment will be found in the Appendix.) Copyright Distinct from Material Object (Section 41)
Whether or not copyright is "property” is a question we shall leave to the scholastics to wrangle over. Sufficient for our purposes that it is recognized and protected as such by the law.
This section merely reaffirms well-established law. Copyright is an intangible right attaching to a tangible thing, namely, the writing of an author, and may remain in the person entitled thereto even after he parts with the tangible thing. The transfer of the latter is a physical act, while the transfer of the former, the copyright, is a mental act which must be evidenced in the form of "an instrument in writing signed by the proprietor of the copyright”, as provided in the next section. Public Ledger v. Post Printing & Pub. Co., 294 F. 430 (CCA 8, 1923); Davenport Quigley Expedition v. Century Productions, Inc., 32 USPQ 608 (1937).
The same principle applies where an author parts with his manuscript. He may retain or dispose of all or a part of his common-law rights, including the right to secure copyright, and these rights may be transferred by parole. Witmark v. Calloway, 22 F.2d 412 (1927); Parton v. Prang, Fed. Cases No. 10,784 (1872).
Adverse possession of the manuscript, however, is prima facie evidence of title, and presumptively includes all the rights recognized by the common law, among them being the privilege of publication and of securing a statutory copyright. GerlachBarklow Co. v. Morris & Bendien, Inc., 23 F.2d 159 (CCA 2, 1927); O'Neill v. General Film Co., 157 N.Y.S. 1028 (NY App. Div. 1916).
Assignments, Mortgages and Bequests (Section 42)
“That copyright secured under this or previous acts of the United States may be assigned, granted, or mortgaged by an instrument in writing signed by the proprietor of the copyright, or may be bequeathed by will."
It is difficult to reconcile the various expressions of the courts on the problem whether or not a grant of anything less than the sum total of the rights embraced in copyright constitutes a true assignment or merely a license, at least for the purpose of bringing suit for infringement. But the weight of authority seems to be that such limited grants operate merely as licenses, although often spoken of as assignments, and hence the licensor must be joined as a party to the suit. Witmark v. Pastime Amusement Co., 298 F. 490 (1924); Eliot v. Geare-Marston, Inc., 43 USPQ 249 (1939). In Goldwyn Pictures Co. v. Howell Sales Co., 282 F. 9 (CCA 2, 1922), Judge Hough remarked that "the license under a copyright is analogous with that under a patent so far as affects the right to sue, and beginning with the much cited case of Waterman v. Mackenzie, 138 U.S. 252 (1891), the inability of a licensee to sue for an infringement [solely in his own name] is no longer an arguable question.” The object of course is to avoid a multiplicity of suits for the same infringement.
An examination of the Waterman case, however, reveals the interesting fact that the Supreme Court remarked that if the right granted was the exclusive right “to make, sell and operate a patented machine within a given territory”, this would be an assignment and not a mere license.
In Photo-drama v. Social Uplift Film Co., 213 F. 374 (1914), it was held that the grant of moving-picture rights in a play was an assignment of the copyright, and that such grant was void as against a subsequent purchaser of any such right, without actual notice, where it was not recorded in the Copyright Office within three months after execution as provided in section 44. See also Brady v. Reliance Motion Picture Corp., 229 F. 137 (CCA 2, 1916).
If section 42 were changed to read: “That copyright or any right or rights embraced therein may be assigned”, etc., and section 36 were changed to include owners of partial rights among the parties "aggrieved", the problem of "divisible copyright” which has so long plagued the authors would be largely solved in this respect. Trustee in Bankruptcy
The title of a bankrupt proprietor of copyright passes to his trustee in bankruptcy by operation of law. U. S. Code, Title 11, section 110: "The trustee of the estate of a bankrupt, upon his appointment and qualification, and his successor or successors if there be one ... shall in turn be vested by operation of law with the title of the bankrupt as of the date he was adjudged a bankrupt ... to (1) all documents relating to his property; (2) interests in patents, patent rights, copyrights, and trade marks.” And, further, that such property rights may, when practicable, be sold by the trustee, subject to the approval of the court; and that the title to such property when sold shall be conveyed to the purchaser by the trustee. The assignment of any copyrights by the trustee should be recorded in the Copyright Office, as constructive notice of the transaction.
In the case of In re Waterson, Berlin & Snyder Co., 48 F.2d 704 (CCA 2, 1931), it was held that the trustee in bankruptcy was authorized to sell the copyrights of the bankrupt, but subject to the authors' right to have the copyrights “worked” and to receive the royalties according to the original contracts between authors and publishers.
Recordation of Assignments and Mortgages (Sections 44 and 45)
The purpose here is of course to safeguard a purchaser or mortgagee against the possibility of there being a prior grant in existence covering the same copyright; similar to liens against real estate. Section 44 provides:
"That 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 [i.e., actual notice], whose assignment has been recorded.”
Such recordation amounts to "constructive notice” to any subsequent purchaser or mortgagee. But observe that such notice covers a period of three or six months following execution of the document, and hence any subsequent purchaser is placed at a disadvantage in that he cannot safely close his bargain (failing actual notice) until such period has elapsed. The corresponding provision in the patent law reads: “An assignment, grant, or conveyance shall be void as against any subsequent purchaser for a valuable consideration, without notice, unless it is recorded in the Patent Office within three months from the date thereof or prior to such subsequent purchase or mortgage.” (35 U.S.C. 47.) A similar provision might well be incorporated in the copyright law.
Failure to record an assignment in the Copyright Office does not invalidate the document as between the parties thereto, nor is it available as a defense to an infringer. New Fiction Pub. Co. v. Star Co., 220 F. 994 (1915).
The general rule in regard to the actual time of recording such documents is that when lodged in proper form, accompanied by the statutory fee, the recordation exists as of the date of its receipt. Troy Wagon Co. v. Hutton, 53 W.Va. 154 (1902); Thompson v. American Law Book Co., 119 F. 217 (1902).
Recording by photostatic process has been held sufficient under a statute requiring that "instruments shall be recorded at length in a book". Bennington v. Booth, 101 Vt. 24, 140 A. 157 (1928). The Copyright Office has for some time past adopted this process of recording assignments, resulting in greatly expediting the work as against the former process of handwriting. The number of documents presented to the Office for recordation has vastly increased in recent years, and they include not only assignments and mortgages proper, but also licenses and contracts covering specific rights embraced in copyright, and even authenticated copies of wills or extracts therefrom. Whether the recording of such miscellaneous documents operates as constructive notice, the same as with assignments and mortgages proper, may be open to question, but it would at least have the effect of giving actual notice to any party making inquiry at the Copyright Office. Duties of the Register of Copyrights (Section 47)
Section 47 provides that the Register of Copyrights shall perform all the duties relating to the registration of copyrights "under the direction and supervision of the Librarian of Congress". While this places the ultimate responsibility for results upon the Librarian, it obviously does not mean that he must personally supervise the operations of the Copyright Office, or re-examine any decision of the Register on the merits of any particular case. The Register is always presumed to have acted under the direction and supervision of the Librarian, and any appeal to the latter on the part of applicants over a decision of the Register would be tantamount merely to a request for reconsideration by the Register. 40 Op. Att. Gen. 263, 48 USPQ 439 (1941). See further in connection with the Register's discretionary powers, 30 Op. Att. Gen. 422 (1915); Bouvé, Register of Copyrights, v. 20th Century-Fox Film Corp., 50 USPQ 338 (App. D.C., 1941). Rules and Regulations of the Copyright Office (Section 53)
Section 53 authorizes the Register to make "rules and regulations for the registration of claims to copyright”, subject to the approval of the Librarian of Congress. (The existing rules, as amended to date, will be found in the Appendix.)
The rules approved by any head of a department are necessarily designed to be in aid of carrying out the will of Congress as expressed in the law. Bong v. Campbell Art Co., 214 U.S. 236 (1909). Even without express authority, it would be necessary for him to formulate rules of practice.
"Every statute to some extent requires construction by the public officer whose duties may be defined therein. Such officer must read the law, and he must therefore, in a certain sense, construe it in order to form a judgment from its language what duty he is directed by the statute to perform.” Roberts v. Valentine, 176 U.S. 219 (1900).
Inasmuch as the Copyright Act does not confer judicial functions upon the Librarian or the Register (see Report 2222, sec. 53, in Appendix), their construction is not necessarily binding upon the courts. Twentieth Century-Fox Film Corp. v. Bouvé, Register of Copyrights, 45 USPQ 411 (1940); aff'd 50 USPQ