07C renewal registration rights: next-of-kin
SEE ALSO: Section 07B: renewal registration rights
Where to Look in the Law
1909 Act: §23
1947 Act: §24
1976 Act: §304(a)
Copyright Office Publications for Laymen
Circular 15
What the Supreme Court Ruled
Fox Film Corporation vs Knowles
D.C.,S.D.N.Y. (5-18-1921) ¤ 275 F. 582
D.C.,E.D.N.Y. (6-28-1921) ¤ 274 F. 731
The above two decisions were affirmed without opinion CCA 2nd Cir. (1-26-1922), 279 F. 1018, then reversed on other grounds by the Supreme Court:
261 U.S. 326 (3-12-1923), 43 S.Ct. 365, 67 LEd. 680.
The first trial established that Will Carleton wrote two poems, “Over the Hills to the Poorhouse” and “Over the Hills from the Poorhouse,” which were in a collection called Farm Ballads, copyrighted February 21, 1873, and renewed January 7, 1901. He died December 18, 1912. Norman E. Goodrich as executor renewed the copyright January 21, 1915 (securing the final 14 years allowed, the term to end February 21, 1929), then died July 27, 1915. His wife, Alice L. Goodrich, was his heir, and she on October 26, 1920, assigned to Fox “exclusive rights to dramatize” the poems. Defendant Knowles created his own theatrical dramatizations without this authority. The Court determined that Goodrich was not a valid heir, so he couldn’t validly renew the copyright nor leave it to his wife.
The second court wrote: “When there are no widow, children, or next of kin, and the right of renewal vests in an executor, the right must become property which is a part of the estate. Upon the happening of the condition subsequent, the estate thus gains the renewal of the copyright, and the person then entitled to receive the estate or that part of it which includes the renewed copyright will receive the benefit at the hands of the executor. No formal transfer by the executor is necessary, as evidently the executor can hold this property right only subject to accounting for and turning over the estate.”
Further: “The power to renew apparently vested in [Carleton’s] next of kin and was not exercised, and no valid copyright for the renewal now exists.” The complaint was dismissed. Knowles would be allowed his competing dramatization.
Fox appealed, seeking to “restrain dramatic performances based upon two poems, ‘Over the Hills to the Poor House’ and ‘Over the Hills from the Poor House,’” the rights to which were in question after Will Carlton died testate. Carlton left all his property to Norman E. Goodrich and appointed him sole executor. “The only defense relied upon here is that the statutes did not give the executor a right of renewal and that therefore the copyright has expired.” The Court noted that copyright law gives the privilege of renewal for a work of a deceased author to an executor. The executor(s) are listed after “widow, widower, or children,” but there weren’t any of the first three categories here. The Supreme Court decided: “No one doubts that if Carlton had died leaving a widow she could have applied as the executor did, and executors are mentioned alongside of the widow with no suggestion in the statute that when executors are the proper persons, if anyone, to make the claim, they cannot make it whenever a widow might have made it.” The copyright renewals were held valid.
What the Lower Courts Ruled
Isaac Silverman vs Sunrise Pictures Corporation
C.C.A.N.Y. (5-11-1921) ¤ 273 F. 910.
Isaac Silverman vs Sunrise Pictures Corporation
CCA 2nd Cir (4-30-1923) ¤ 290 F.804 (affirmed)
Augusta Evans Wilson wrote At the Mercy of Tiberius. He died May 25, 1909, and the first-term copyright expired October 12, 1915. On April 7, 1915, two sisters of his filed for renewal. The remaining sister of the author was dead, but had surviving children. The estate had been settled in full in the interim, on August 7, 1911.
Apparently these other surviving kin, as they did not exercise the renewal during the year for renewal, were not in a position to complain later. The testator also sought to exercise a renewal right, but this was a nullity, as he had been discharged.
When movie rights were sought in 1920, the production company sought to get clearances from all possible next-of-kin. Despite objections that those who didn’t renew the copyright should have been able to overturn the movie deal, the Court found that “the two sisters, who as next of kin, registered the renewal, were lawfully authorized so to do for themselves and their fellow owners in common, [thus] their act was in law the act of all [next-of-kin], and plaintiff, having derived title from all, is the owner of a lawful renewal copyright.”
(The Supreme Court verdict in Fox v. Knowles was decided between the two Silverman v. Sunrise trials.)
Alice T. Yardley vs Houghton Mifflin Co., Inc.
D.C.N.Y. (11-23-1938) ¤ 25 F.Supp. 361, affirmed 108 F.2d 28, certiorari denied 60 S.Ct. 891, 309 U.S. 686, 84 L.Ed. 1029.
Charles Y. Turner painted “The Marriage of the Waters” and one other mural for the DeWitt Clinton High School at 59th St and Tenth Ave. in New York City. He copyrighted it October 30, 1905. “There was no provision in the [work] contract as to who should have the copyright of the paintings to be made.” However, “there is no course of dealings shown indicating that the copyright should have remained with Mr. Turner. There was no special assignment or term of contract that it should remain with him, and, consequently, I think that the City of New York, when it paid him for the mural, became vested with all right and title in it including the right to reproduce. Consequently, the title to the copyright which Mr. Turner secured was held in trust by him for the City of New York.” The copyright expired October 29, 1933, according to the decision. Turner had died December 18, 1918. The executor of his estate served continuously from September 5, 1919 to January 30, 1937. On “November 17, 1932, [Yardley] applied, as next of kin, for and obtained in her own name the issuance of a renewal certificate.” This was the only renewal application made on the work. Yardley, “who was a sister — and at this time only one of the several surviving sisters of Mr. Turner — did not… have any right to secure the renewal of the copyright and such renewal, therefore, was wholly void and of no effect.” On February 7, 1937, Yardley secured assignment from executor yet “this assignment occurred after the expiration of the copyright of this picture, and, consequently, if it conveyed anything, it conveyed only a bare right of action for a past infringement.” The Court ruled that Yardley had been wrong to act without the other sisters and without the executor. The Court found other reasons to believe that the school owned the rights: “The fact that Mr. Turner took out a copyright herein is not a basis for an inference that the patron gave him such permission, especially when the patron — as did the Board of Education here — habitually sold postcard reproductions.”
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