Bartok v. Boosey & Hawkes, Inc.

• Decision Date: 26 September 1974
• Docket Number: No. 73 Civ. 4570.,73 Civ. 4570.
• Citation: 382 F. Supp. 880
• Parties: Peter BARTOK, Plaintiff, v. BOOSEY & HAWKES, INC., and Benjamin Suchoff, as Trustee of the Estate of Bela Bartok, Defendants.
• Court: U.S. District Court — Southern District of New York

382 F. Supp. 880

Peter BARTOK, Plaintiff, v. BOOSEY & HAWKES, INC., and Benjamin Suchoff, as Trustee of the Estate of Bela Bartok, Defendants.

No. 73 Civ. 4570.

United States District Court, S. D. New York.

September 26, 1974.

Herbert (Peter A. Orenstein, Arrow, Silverman & Parcher, P. C., New York City) for plaintiff.

Maxwell Okun (Fishbein & Okun, New York City) for defendants, Boosey & Hawkes.

Shirley A. Thau (Wolf, Popper, Ross, Wolf & Jones, New York City) for defendant Suchoff.

Irwin Karp, New York City, The Authors League of America, Inc., amicus curiae.

OPINION

OWEN, District Judge.

These are cross-motions by Peter Bartok, a son of composer Bela Bartok, and Boosey & Hawkes, Bela Bartok's publisher. Twenty-eight years having passed since Boosey originally copyrighted Bartok's Concerto for Orchestra, each seeks, by summary judgment, to secure the right of renewal of said copyright for the second twenty-eight year period provided under Tit. 17 U.S.C. § 24.

In 1943, Bartok, 62 years of age, was a sick and somewhat embittered man, the despair both of his doctors and friends. Neglect of his music was a source of aggravation to him, as were his impecunious circumstances. But on top of this he was suffering from the leukemia which would claim his life a little more than two years later. By the summer of 1943, he was confined to a small New York Hospital room, and it was there that one day arrived an unannounced caller, Serge Koussevitzky. The famous conductor had come alone, and accepting the only chair, drew it close to the bed and began at once to explain his mission. Aware that the fiercely proud composer would accept neither charity nor an assignment he did not feel able to undertake, the conductor did not "offer" a commission to the desperately ill Bartok. Instead, lying as matter-of-factly as he could, he reported that he was acting as a courier for the Koussevitzky Foundation (set up as a memorial to his late wife Natalie) and that he was bound to leave a check for $500 with Bartok whether or not any new piece would be forthcoming. This figure, he added, was only half of what had been set aside. Another $500 would be paid upon receipt of the score it was hoped that Bartok could write. But the first $500 was his irrevocably.

Orthodox medicine has no explanation for the speedy, if temporary, recuperation that ensued. The grimmest prognoses would be confirmed soon enough, but after Koussevitzky's visit Bartok rallied so astonishingly that the incredulous specialists authorized his discharge from the hospital. The composer then went south, to Asheville, North Carolina, and it was there, between August 15 and October 8, 1943 that he wrote the Concerto for Orchestra. The first performances took place on December 1 and 2, 1944, in Symphony Hall, Boston, with Koussevitzky conducting the Boston Symphony. The work was so successful that it was repeated on December 29 and 30 in Boston, and on January 10 and 13, 1945 at Carnegie Hall in New York. Since that time this masterpiece has become a repertory staple not only of the Boston Symphony but of orchestras the world over.¹

Upon completion of the Concerto in 1943, Bartok assigned his rights in the work to Boosey pursuant to their 1939 publishing contract. Boosey prepared the "parts" for the orchestra and set about printing the "full" score. However, wartime conditions — the work was to be published in England — and a rewriting of some of the music done by Bartok after the premiere, caused delays and Bartok was still receiving and correcting printer's proof as late as June 1945, three months before his death. The Concerto was consequently not published² and copyrighted by Boosey until March 20, 1946, some six months after he died.³

The first period of copyright expiring in March 1974, both claimants to the renewal filed timely applications with the United States Register of Copyrights.

The controlling statute in this case is Title 17 U.S.C. § 24, which provides in relevant part as follows:

The copyright secured by this title shall endure for twenty-eight years from the date of first publication . . . Provided, That in the case of any posthumous work . . . 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: And provided further, That in the case of any other copyrighted work . . . the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, . . . shall be entitled to a renewal and extension of the copyright in such work for a 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: . . .

Each claimant contends § 24 mandates the award of the renewal. Boosey, the "proprietor" of the original copyright, contends that the work is a "posthumous" work. Peter Bartok, contending the work is not "posthumous", claims the renewal as one of the "children of the author, . . ." The Register of Copyrights permitted the filing of both renewals expressly declining to adjudicate as between them. All parties agree that this is a case of first impression.⁴

The determination of the issue thus raised requires, as I see it, consideration of (1) the purpose of Congress in providing for the renewal period in § 24, and (2) the meaning of "posthumous" therein.

The rationale of the renewal period in § 24 is clear. On March 27, 1908, at the Congressional Committee Hearings before the Joint Committee on Patents, the following colloquy took place between the Chairman and William Allen Jenner of New York on the subject of whether to extend the author's term of copyright for an additional fourteen years:

The Chairman: I would like to ask you a question. Would not the publisher, if a third term were given, make a contract with the author stipulating that not only was he to have control of the publication for the first twenty-eight years, but that he should control it, and the right to publish it, under the original contract, for the fourteen-year extension period and if we give another extension of fourteen years, then for the second fourteen-year period?

Mr. Jenner: It is never done, and I have some doubt about whether it legally could be done. But I should be glad to see that so provided for that it could not be done under the law.

Representative Law: Then put it in the bill itself.

Mr. Jenner: Put it in the bill itself, and say that it cannot be done, so that the author is certain to have that extension as a provision for his age or a provision for his widow and his children.

Thereafter, the Committee report on the 1909 Act stated, concerning the present twenty-eight year renewal as follows:

Your Committee, after full consideration, decided that it was distinctly to the advantage of the author to preserve the renewal period. 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 twenty-eight 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

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