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ing a statute we are not always confined to a literal reading, and may consider its object and purpose, the things with which it is dealing, and the condition of affairs which led to its enactment, so as to effectuate rather than destroy the spirit and force of the law which the legislature intended to enact"-(the good old maxim ut re magis valeat quam pereat).
The question came up for consideration in the recent case of Marx v. United States, 37 USPQ 380 (CCA 9, 1938), and the court commented as follows:
"Congress manifestly intended to extend the benefits of the copyright laws to authors of unpublished works as well as to those whose works are published. It is not to be assumed that a more extended measure of protection was intended to be given the former than the latter. Legislative enactments are to be construed, if possible, in such way as to render them constitutional. N. Y. Central R. Co. v. United States, 212 U.S. 481. The particular act has been on the statute books since 1909, and so far as we know has not heretofore been subjected to attack. Long acquiescence in the constitutionality of legislation creates a strong assumption in favor of its validity.”
The court further remarked that inasmuch as the word "publication" has no definite and fixed meaning, it may, as used in section 23, reasonably be thought to mean one thing as related to published works and another as related to copyrighted works of which copies are not reproduced for sale; and that in view of the declared purpose of Congress to limit the first term of all copyrights to 28 years, section 23 should be construed, in the case of works of which copies are not reproduced for sale, as having reference to the date of deposit.
So also in Patterson v. Century Productions, 35 USPQ 471 (CCA 2, 1937), the court held the copyright of the unpublished motion picture secured under section 11 to be “valid for the statutory period”, which could be none other than 28 years from the date of the requisite deposit with claim of copyright.
The question is of vital importance in connection with the procedure for securing renewals, which must be applied for within the last year of the copyright term. For example, if the copyright was secured on December 1, 1914, for a work not reproduced in copies for sale, the renewal application should be filed in the Copyright Office within the year beginning December 1, 1941, and ending November 30, 1942, notwithstanding that
the same work might have been reproduced for sale or public distribution some months or even years subsequent to the original deposit under section 11.
Abandonment of Common-law Rights
Under the prior law, which contemplated statutory copyright only for published works,* the Supreme Court held that once a copyright had been secured the remedies for infringement at common law were thereby abandoned and had to be sought under the statute in the federal courts. Globe Newspaper Co. v. Walker, 210 U. S. 356 (1908); Caliga v. Interocean Newspaper, 215 U. S. 182 (1909). The same ruling applies to a copyright secured by deposit under section 11. In Universal Film Co. v. Copperman, 218 F. 582 (CCA 2, 1914), the court held that “The Nordisk Company (complainant's assignor] abandoned its common-law property in the United States when it took out the statutory copyright ... under section 11 of the Act of 1909." And in Photo-drama v. Social Uplift Film Corp., 220 F. 448 (CCA 2, 1915), the same court remarked:
"We do not concur in Judge Hand's holding that one who has obtained statutory copyright of a book or play has left in him any common-law right in literary property by virtue of section 2 of the Act. We think that section is intended only to indicate that the statute does not displace the commonlaw right. Whoever elects to avail himself of the statute. however, must be held to have abandoned his common-law right.”
The same principle was applied (with a distinction) in the recent case of Loew's Incorporated v. Superior Court of Los Angeles County, 50 USPQ 641 (1941). In this case action was brought in the state court for infringement of the performing right of a play, but inasmuch as the proprietor had previously copyrighted the play by deposit of a copy in the Copyright Office under section 11, the court held that the action should have been brought in the federal court. As aptly remarked by the court: “The existence concurrently of the common-law and statutory copyright, as is here claimed, would permit the owner of the statutory copyright of exclusive representation to seek the advantages of the statute and at the same time to reject its disadvantages." The court also remarked that "the author or his assignee still has the common-law right of first publication, redress for the infringement of which is also assumed may be sought in the state courts”. However, section 1 of the Copyright Act secures to the author or proprietor the exclusive right not only to perform the copyrighted drama but also the exclusive right to print and publish the same, the violation of which would be an infraction of the federal law and therefore the remedy should be sought in the federal courts in accordance with section 34 of the Copyright Act and section 256 of the Judicial Code, which require all actions, suits or proceedings arising under the copyright law to be brought in such courts. A suit for infringement of the publication right would be such a proceeding; otherwise it is difficult to conceive what the law-makers had in mind.
* Nevertheless, as the files of the Copyright Office abundantly show, many thousands of dramas were deposited under the old law in typewritten and even handwritten form, from which it is reasonable to suppose that no actual publication had taken place, and therefore the common-law right of performance and publication was not necessarily abandoned.
Among the advantages of registration under section 11, as compared with the common-law right, are (1) the certificate of registration is prima facie evidence of ownership of a valid copyright; (2) suit for infringement can be brought in the federal courts irrespective of diversity of citizenship; and (3) it gains statutory damages where actual damages and profits cannot well be ascertained.
On the other hand, the disadvantages are (1) the term of protection is limited in duration as against the common-law right in perpetuity; and (2) the common-law rights are more exclusive in some respects than the statutory rights, as noted at the beginning of this Chapter. Deposit of Copies after Reproduction for Sale The concluding sentence of section 11 reads:
“But the privilege of registration of copyright secured hereunder shall not exempt the copyright proprietor from the deposit of copies, under sections 12 and 13 of this Act, when the work is later reproduced in copies for sale.”
The primary purpose here is to secure two copies of “the best edition" for the Library of Congress as a condition upon the right to bring suit for infringement occurring after publication. Mittenthal v. Berlin, 291 F. 714 (1923). It is not entirely clear from a reading of sections 11 and 12 taken together that anything more is required than to make the deposit of such copies. Inasmuch, however, as under the concluding sentence of section 12 no action or proceeding can be maintained for infringement 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.