of copyright in any work until the provisions with respect to "the deposit of copies and registration of such work shall have been complied with," it seems reasonable to assume that some kind of registration should be made if only to put of record the date of publication and receipt of copies and to secure a certificate as prima facie evidence of compliance with the law. And for this reason it has always been the practice of the Copyright Office to register such material anew under the following Rule:

"Any work which has been registered under section 11, if published, i.e., reproduced in copies for sale or distribution, must be deposited a second time (accompanied by an application for registration and the statutory fee) in the same manner as is required in the case of works published in the first instance." (Section 201.6, subs. (f), of Copyright Office

Rules, in Appendix.)

The reproduction for sale or distribution must be followed up by actual sale, placing on sale, or public distribution before the time is ripe for making the second deposit and registration. See remarks of the court in Patterson v. Century Productions, Inc., 35 USPQ 471 (CCA 2, 1937).

Notice of Copyright on Copies Reproduced for Sale

The Act contains no express requirement for any notice of copyright on the original copy deposited under section 11, but upon reproduction in copies for sale or public distribution the prescribed notice must be "affixed to each copy published or offered for sale in the United States by authority of the copyright proprietor" (section 9), the same as if the work had been published in the first instance. But in the case of such works as require the year date in the notice (published literary, musical and dramatic works), it should correspond with the year in which the copyright was originally secured under section 11 and not the year of subsequent general publication (if it happens to be different). This was the practice followed by the plaintiff in Patterson v. Century Productions, Inc., supra, involving infringement of a photoplay which had been registered in the first instance under section 11 in the year 1928; but when commercially published in 1933 the notice bore the 1928 year date and the registration was duly made in accordance with the Rule quoted above. The effect of this procedure upon plaintiff's original copyright was raised by defendant but not found neces

sary to be passed upon by the court because the infringement had taken place some time before actual publication in 1933.

The case of Turner & Dahnken v. Crowley, 252 F. 749 (CCA 9, 1918), involved infringement of a musical composition which had been registered under section 11 in 1914 and afterwards published and registered again in 1916. Some preliminary question arose over a discrepancy in dates between the certificate and the allegations in the complaint, which the court dismissed as immaterial, and went on to say:

"But in the present case, even if the first registration could not be sustained, surely plaintiff by proof of the second registration fulfilled the terms of the Copyright Act, inasmuch as the record proves that the copyright notice was appended to the published copies of the song."

Here the notice on the published copies bore the year of original deposit (1914) and not the year of publication (1916). In the case as reported the date of publication is given as September 10, 1914, which is a typographical error for 1916, as the copies deposited and the copyright records plainly show.

Where the reproduction involves new work of authorship, such as substantial new matter in the case of a published literary, dramatic or musical work, the statute itself is authority for claiming a new copyright (section 6) and advancing the year date in the notice.

In General

Chapter XI

Renewal of Copyright

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 USPQ 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