White-Smith Music Pub. Co. v. Goff

Citation187 F. 247
Decision Date01 March 1911
Docket Number909.
PartiesWHITE-SMITH MUSIC PUB. CO. v. GOFF et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Alexander P. Browne (Browne & Woodworth, on the brief), for appellant.

Horatio E. Bellows, for appellees.

Before PUTNAM and LOWELL, Circuit Judges, and ALDRICH, District Judge.

PUTNAM Circuit Judge.

This appeal grows out of a bill in equity brought by the complainant, the White-Smith Company, against the respondents, Goff and Darling, alleging infringement of a copyrighted musical composition. The complainant is the publisher, and not the author. It claims a statutory extension of a copyright as proprietor under sections 4952 and 4954 of the Revised Statutes (U.S. Comp. St. 1901, pp 3406, 3407). It offered registration under the statute, and although registration was refused, yet it fully complied with the requirements of law, and is entitled to maintain this suit if it had any statutory right to the extension. Whether at this time the author was living does not appear. The respondents make no claim under any copyright. The complainant acquired its original rights under the following contract:

'Boston June 29, 1876.

'Memo of agreement between Eben H. Bailey, of the first part, and Mess. White, Smith & Co., Music Publishers, of the second part. The party of the first part hereby agrees to furnish the party of the second part, eight (8) MSS. of his own original instrumental compositions each year, during the term of this contract, and upon the acceptance of which, the party of the second part agrees to pay the sum of ($25.00) twenty-five dollars each, as soon as published. This contract to remain in force 3 years from above date, or until June 29, 1879, and during which time, the party of the second part, shall hold the exclusive right and title to all original inst'l compositions or transcriptions by the party of the first part, who shall not in any case offer them to any other party or publisher, either under his own name or 'nomde-plume.' It is also agreed by the party of the first part, to give to the party of the second part, all his trade and influence in furtherance of this contract.

(Seal.) White Smith & Co.

'(Signed) Eben H. Bailey.

'Witness: (Signed) Frank E. Crane.'

As the bill alleged no other right than what we have stated, it was demurred to, and the decision of the Circuit Court was in favor of the respondents, on the ground that the complainant had no statutory interests in the extension.

Sections 4952 and 4954 of the Revised Statutes applied to the copyright at the time it was taken out:

'Sec. 4952. Any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and, in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others. And authors may reserve the right to dramatize or to translate their own works.'
'Sec. 4954. The author, inventor, or designer, if he be still living and a citizen of the United States and resident therein, or his widow or children, if he be dead, shall have the same exclusive right continued for the further term of fourteen years, upon recording the title of the work or description of the article so secured a second time, and complying with all other regulations in regard to original copyrights, within six months before the expiration of the first term.'

When the copyright thus acquired under section 4952 expired, the act approved March 4, 1909, c. 320, 35 Stat. 1080 (U.S. Comp. St. Supp. 1909, p. 1297), was in force, of which so much of the twenty-fourth section as is pertinent at this point reads as follows:

'Sec. 24. That the copyright subsisting in any work at the time when this act goes into effect may, at the expiration of the term provided for under existing law, be renewed and extended by the author of such work if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then by the author's executors, or in the absence of a will, his next of kin, for a further period such that the entire term shall be equal to that secured by this act, including renewal period.'

The complainant maintains that the result in the Circuit Court was to deprive it of a vested right; but, as the language of the two statutes which we have cited was for this purpose essentially the same, no such question can arise. Moreover, as is thoroughly settled by the Supreme Court, all rights of copyright in the United States are purely statutory, whatever they may once have been in England; and it is not so easy to understand how there can be a vested right under a public statute which has not actually accrued, and which lies only in the future. This proposition, however, we can pass by.

It is to be noted that in each statute the grant of the original copyright is to the author or proprietor, while as to the provision for an extension the word 'proprietor' is studiously stricken out. Neither is it true that the provision for the extension in either statute operates automatically or in any line which recognizes a continuing right. While the words 'renewed and extended,' in their proper and ordinary construction, relate to a continuing right, yet the fact that, if the author is not living, the 'widow, widower or children' of the author are entitled to the additional term makes the provision of each statute in reference thereto strictly personal, and not really and truly a renewal or extension. Therefore neither statute on its face provides really and truly an extension to the author, his assigns, executors, and administrators, but a new grant to the author or others enumerated as we have said.

In this connection we will observe that the complaint relies on the word 'proprietor' appearing in what follows in the same section 24, namely:

'Provided, however, that, if the work be a composite work upon which copyright was originally secured by the proprietor thereof, then such proprietor shall be entitled to the privilege of renewal and extension granted under this section.'

This has reference, of course, to the provision about composite work in section 23 of the same act of March, 1909; yet by its own implication it clearly defeats the proposition of the complainant, because, if that were correct, this proviso would not be necessary in order to entitle a mere proprietor to the privilege of renewal and extension under any circumstances whatever. Indeed, whether the position of the complainant or the respondents be correct, the word 'proprietor' comes in legitimately because, in connection with the renewal, the persons who control the right thereto, whether widow, widower, or the author himself, may, during the year prior to the expiration of the existing term nominated in section 24, assign the right to renewal, so that the then proprietor may make the new registration required, and take out the extension in his own name. Further, there is nothing in all these implications suggested by the complainant which, on any just rule of construction, can set aside the plain phraseology of the statute as to any particulars concerned therein. It is therefore at least clear that, by the express terms of the statutes, whether the one existing when this copyright was taken out or the one existing when the extension was applied for, no one except the author or the members of his family or his executors could ordinarily apply for the extension; and this independently of any question for whose benefit the author or the other applicant might hold the copyright when acquired.

However it is well to show that this is not merely a technical condition precedent, but lies at the bottom of a long-continued and purposely-intended series of statutes. The first section of the original copyright act of May 31, 1790, c. 15, 1 Stat. 124, provided that the original copyright might be taken out by a 'citizen or citizens,' 'his or their executors, administrators, or assigns. ' In the same section, and as a part of the same subject-matter, the statute gave, using exactly the same language, to 'a citizen or citizens,' 'his or their executors, administrators, or assigns,' a further term of 14 years. There was here no reference to members of the author's family, or to any one who was not in the line of succession or in privity according to the rules of law, but only a repetition of exactly the same persons and successors to whom the first term was given. Therefore, without there being any specific authoritative construction given thereto by the Supreme Court, it was properly assumed that the further term of 14 years was strictly an extension or continuation of the original right, and flowed out of the same in accordance with the ordinary rules of law controlling the devolution of property; so that there was nothing to indicate, as a matter of public policy or otherwise, by the way of pointing out eo nomine any particular persons to whom the extensions should be granted, that a copyright might not be assigned alike for the original term and for all its extensions, improvements, and all other incidentals, precisely as an ordinary patent for an invention may be assigned. There was...

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19 cases
  • M. Witmark & Sons v. Fred Fisher Music Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 11, 1942
    ...to be able to get a renewal, and thus "executors, administrators" went out along with "or assigns"; or, as said in White-Smith Music Pub. Co. v. Goff, 1 Cir., 187 F. 247, 250, that Congress enacted "an entirely new policy, completely dissevering the title, breaking up the continuance in a p......
  • Stewart v. Abend
    • United States
    • United States Supreme Court
    • April 24, 1990
    ...breaking up the continuance . . . and vesting an absolutely new title eo nomine in the persons designated." White-Smith Music Publishing Co. v. Goff, 187 F. 247, 250 (CA1 1911). In this way, Congress attempted to give the author a second chance to control and benefit from his work. Congress......
  • Bartok v. Boosey & Hawkes, Inc., 940
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 26, 1975
    ...next of kin or executor . . . a supplementary copyright upon the terms stated in the statute. See also White-Smith Music Publishing Co. v. Goff, 187 F. 247, 251 (1st Cir. 1911). As the Supreme Court said in Fred Fisher Music Co. v. Witmark & Sons, 318 U.S. 643, 653-54, 63 S.Ct. 773, 87 L.Ed......
  • Vacheron & Constantin-Le Coultre W. v. Benrus W. Co., 263
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 21, 1958
    ...watch as copyrightable under § 5(g). It is true that the few decisions on the question leave the answer uncertain. In White-Smith Music Pub. Co. v. Goff, 1911, 187 F. 247, the First Circuit affirmed a judgment dismissing an action for infringement in which the Register had refused to regist......
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1 books & journal articles
  • ABANDONING COPYRIGHT.
    • United States
    • November 1, 2020
    ...they are ever going to make in the first five to ten years following their release."). (108.) See White-Smith Music Publ'g Co. v. Goff, 187 F. 247, 251 (1st Cir. 1911) ("There are at least sentimental reasons for believing that Congress may have intended that the author, who according to tr......

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