ment of the renewed copyright, which was done and held valid to pass title. The renewal right being personal to the author, it is doubtful whether, in the event of his dying before the statutory year arrives, the widow or children could be bound by having joined in any such contract. This would plainly be contrary to the general policy of the Act, and enable the author to accomplish indirectly what he is not permitted to do directly.

(h) Where two or more authors act in concert and common design, the resulting production is to be deemed a work of joint authorship rather than a composite work, and the authors are entitled to the renewal privilege. If one author takes out the renewal in his own name, he holds in trust for the benefit of all. Marks Music Co. v. Jerry Vogel Music Co., 52 USPQ 219 (DC SNY 1942). Where the original production was not the result of such joint authorship, the general rule is that each author is entitled to secure separate renewal for his own distinct component part of the work. Harris v. Coca-Cola Co., 23 USPQ 182 (CCA 5, 1934).

(i) Where there are several surviving children or next of kin, any one of them may renew for the benefit of all concerned as tenants in common; for otherwise, if one owner of a microscopic fraction of right cannot be found or can be bought off, the rest of the family would be helpless. Hence it is only by treating the act of a fraction as a class act that such possible injustice can be prevented. Hough, J. in Silverman v. Sunrise Pictures Co., 273 F. 909 (CCA 2, 1921).

(j) The term "children" of the author is apparently used in these renewal sections in the common-law sense of offspring, and does not include stepchildren or grandchildren. It has been so construed by the Copyright Office. In the case of adopted children, however, it appears that under the law of certain states (e.g., New York) they are made members of the family for all legal purposes, and hence the law of their domicile might properly be deemed to govern here.

(k) Where the author of a play died intestate prior to the renewal year, leaving no widow or children surviving him, and the copyright was duly renewed by his next of kin, the latter thereby "acquired a new and independent right in the copyright, free and clear of any rights, interests, or licenses attached to the copyright for the initial term." Fitch v. Schubert, 35

USPQ 245 (1937). The court accordingly held that all rights which the defendants had acquired to use the play as the basis of a musical operetta expired by operation of the statute, when the original term ended and a new grantee appeared on the scene as owner of the copyright for the renewal term.

(1) Under section 23 the right of renewal of copyright in a work made for hire is not given to the employer as "author" as defined in section 62, but to the existing "proprietor". The application for renewal in such case should therefore describe the claimant as "proprietor of a work made for hire." Shapiro, Bernstein & Co., Inc. v. Bryan, 48 USPQ 69 (1940), aff'd 51 USPQ 422 (CCA 2, 1941).

(m) There is no express provision in the Act for a notice of renewal upon copies subsequently issued. In Fox Film Co. v. Knowles, 274 F. 731 (1921), District Judge Chatfield was of opinion that in such case a notice giving the year date of renewal and the name of the renewal claimant would in itself be sufficient without more. But the question is not entirely free from doubt, and it is recommended that the original notice be included as well. For example: Copyright 1914 by John Doe. Copyright renewed 1942 by Richard Roe.

Chapter XII

Rights Secured by Copyright and
Infringement Thereof

Part 1-Exclusive Statutory Rights

Now, having passed through these various straits of copyright adventure, we come at last to the reward in the form of certain "exclusive" rights, varying in kind according to the nature of the work, as set forth in section 1.

Section 1(a)

"To print, reprint, publish, copy, and vend the copyrighted work"

This is the most comprehensive right, applicable to all copyright material. The phraseology was borrowed from the former statute, and while at the time of original hearings on the bill many amendments were suggested to the committee, it was felt "safer to retain the old language which had been so often construed by the courts" (Report No. 2222, in Appendix).

To Vend

To print, reprint, publish and copy are continuing rights throughout the life of the copyright,* but the right to transfer or vend (which includes the right to lend, lease or give away) is exhausted as to particular copies once the proprietor has disposed of them unrestrictedly at his own price, and he cannot by virtue of his copyright prevent subsequent transfer or sale at a different price on the part of the purchaser. It was so held by the Supreme Court in construing similar language of the former law, Bobbs-Merrill v. Straus, 210 U. S. 339 (1908); and in section 41 of the present law it is expressly provided that "nothing in this Act shall be deemed to forbid, prevent, or restrict the

*Rearranging for sale in book form of material taken from the issues of plaintiff's copyrighted magazine was held to constitute a new publication of such material and hence an invasion of the right to publish. National Geographic Society v. Classified Geographic, Inc., 41 USPQ 719 (1939).

transfer of any copy of a copyrighted work the possession of which has been lawfully obtained." An agreement between publishers and booksellers which operated to restrict the sale of copyrighted books to those only who would maintain the fixed net retail price, resulting in practically destroying competition in such books at retail, was held not only to go beyond the right conferred by the copyright law but also to be in violation of the Sherman Anti-Trust Act. Straus v. American Publishers Assn., 231 U. S. 222 (1913). Recent federal and state legislation, however, now enables the publishers of books to take advantage of the so-called Fair Trade Acts, and by means of special contract largely prevent the evils of price-cutting. See Bourjois Sales Corp. v. Dorfman, 273 N. Y. 167 (1937).

To Copy-Includes Various Modes of Reproduction

To print or reprint necessarily involves copying, but there are also other ways of infringing this fundamental right, "to copy." The commonly-accepted definition of "a copy" appears in an old English case, West v. Francis, 5 Barn. & Ald. 743, (cited with approval by the Supreme Court in White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 117 (1908)), viz: "A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original." Hence, copying in the legal sense is not confined to literal repetition or exact duplication, but includes as well the various modes in which the work may be substantially reproduced by imitation, paraphrasing, or colorable alteration. Nutt v. National Institute, 31 F.2d 236 (CCA 2, 1929). In the so-called Spark Plug case [King Features Syndicate v. Fleischer, 299 F. 533 (CCA 2, 1924)], it was held that the making of toys in the semblance of copyrighted cartoons constituted copying of the artist's conception as expressed in pictorial form. Said the court:

"We do not think it avoids the infringement of the copyright to take the substance or idea and produce it through a different medium, and picturing in shape and details in sufficient imitation to make it a true copy of the character thought of by the appellant's employee. . . . The concept of beauty expressed in the materials of statuary or drawing is the thing which is copyrighted. That is what the infringer copies." So also in Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 23 USPQ 295 (CCA 2, 1934):

"The infringement charged was a reproduction of the car

toon (Betty Boop) in manufacturing a doll. This, a three dimensional form of doll, is an infringement of the two-dimensional picture or drawing" (with enough difference in detail, as remarked by the court below, "to create an argument but not enough to create an alibi.")

The same principle of copying through a different medium was recognized under the old law. In Falk v. Howell, 37 F. 202 (1888), the court remarked that "differences which relate merely to size and material are not important," and held that the reproduction of a copyrighted photograph in relief on leather used on chairs was an infringement; likewise it is infringement to take a photograph of a piece of sculpture, Bracken v. Rosenthal, 51 F. 136 (1907), or of an engraving, Rossiter v. Hall, 5 Blatchf. 362 (1866).*

In the case of Patterson v. Century Productions, Inc., 35 USPQ 471 (CCA 2, 1936), it was held that to throw a picture on the screen is to "copy" it for the time being, and hence a violation of this right.

That the copying was unintentional is no excuse, since it is the result and not the intention that determines the question of infringement. Witmark v. Calloway, 22 F. 2d 412 (1927). It may be the result of subconscious memory derived from hearing, seeing or reading the copyrighted work at some time in the past, but this in itself would not be sufficient to overcome the charge of copying. Intent, however, may be an important factor in considering the weight of circumstantial evidence of copying. Harold Lloyd Corp. v. Witmer, 65 F. 2d 1 (CCA 9, 1933).

Identical Work Independently Produced

On the other hand, the arm of the copyright law (unlike the patent law) does not reach one who has independently arrived at the same result or even produced an identical work, if such a thing were possible. Fischer v. Dillingham, 298 F. 145 (1924); Arnstein v. Marks, 28 USPQ 426 (CCA 2, 1936). So one may, for example, take a photograph of an object or a scene from the same identical point as used by another, and thereby achieve practically the same picture; and yet there would be no copying

* In an English case it was held that an architectural design was infringed by unauthorized construction of a shop front in accordance with the design. Chabot v. Davies, reported in MacGillivray's Copyright Cases for 1936.