Bartok v. Boosey & Hawkes, Inc.

• Citation: 523 F.2d 941
• Decision Date: 26 September 1975
• Docket Number: D,No. 940,940
• Parties: Peter BARTOK, Appellant, v. BOOSEY & HAWKES, INC., and Benjamin Suchoff, as Trustee of the Estate of Bela Bartok, Appellees. ocket 74-2592.
• Court: U.S. Court of Appeals — Second Circuit

Page 941

523 F.2d 941

187 U.S.P.Q. 529

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

No. 940, Docket 74-2592.

United States Court of Appeals Second Circuit.

Argued June 10, 1975.

Decided Sept. 26, 1975.

Peter A. Herbert, Orenstein, Arrow, Silverman & Parcher, New York City, for appellant.

Maxwell Okun, Fishbein & Okun, New York City, for appellee Boosey & Hawkes.

Shirley P. Thau, Wolf, Popper, Ross, Wolf & Jones, New York City, for appellee Suchoff.

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

Before FEINBERG, OAKES and VAN GRAAFEILAND, Circuit Judges.

OAKES, Circuit Judge:

This appeal presents the question whether a musical composition the rights to which are assigned by the composer and which is performed during his lifetime is nevertheless "posthumous" within the meaning of the copyright renewal provision, § 24 of the Copyright Act, 17 U.S.C. § 24, ¹ because it has not been published or, more precisely, printed (and therefore not copyrighted) until after his death. Appellant, Peter Bartok, a son of composer Bela Bartok, is appealing the decision of Judge Richard Owen of the United States District Court for the Southern District of New York holding that Bartok's Concerto for Orchestra, one of the contemporary composer's most popular compositions, is a posthumous work. According to the renewal provision of the very loosely drawn 17 U.S.C. § 24, a proprietor of Inter alia a copyrighted "posthumous work" is entitled to renew the copyright, whereas the author or certain of the author's surviving kin is entitled to the renewal of most other works. Here both Boosey & Hawkes, Inc. (Boosey), the music publisher and proprietor of the initial copyright of Concerto for Orchestra, and Peter Bartok are claiming the right to renew the copyright. Boosey argues that it is the proprietor of a posthumous work; Peter Bartok argues that the work is not posthumous. The trustee for Bela Bartok's estate, Benjamin Suchoff, argues as does Boosey that the work is posthumous. ² Judge Owen's holding confers that right on Boosey. We must reverse.

Concerto for Orchestra was composed by Bartok between August 15 and October 8, 1943, after a visit by the conductor Serge Koussevitzky to Bartok's hospital room. Bartok was suffering from leukemia, which was to take his life in September, 1945. The Concerto for Orchestra was first performed by the Boston Symphony, Koussevitzky conducting, on December 1 and 2, 1944, in Symphony Hall, Boston. The Concerto was again performed in Boston on December 29 and 30, 1944, and at Carnegie Hall in New York on January 10 and 13, 1945, and broadcast over radio.

After completing the Concerto, Bartok assigned his rights in the work to Boosey pursuant to their 1939 publishing contract. Boosey was to prepare the orchestra parts and print the full score within six months. The printing was to be done in England, but wartime conditions delayed completion, as did some rewriting by Bartok after the premiere. Thus Bartok was still receiving and correcting printer's proofs as late as June, 1945, three months before his death. Printing of the manuscript was not completed and therefore not copyrighted by Boosey until March 20, 1946, six months After Bartok's death.

The first 28 year copyright term held by Boosey, defined by 17 U.S.C. § 24, expired in March, 1974. Both Boosey and Peter Bartok filed renewal applications. The Register of Copyrights permitted the filing of both renewals, expressly declining to adjudicate between them.

Judge Owen felt "constrained to conclude" that Concerto for Orchestra is a "posthumous work" for purposes of § 24, finding that it was "published" and copyrighted after Bartok's death. Judge Owen relied on the definition of "posthumous" used by the Register of Copyrights and examples in musical history. He concluded, however, that were he to look solely to congressional intent he would hold the work not posthumous. Bartok v. Boosey & Hawkes, Inc., 382 F.Supp. 880, 883 (S.D.N.Y.1974). We find that we must give controlling weight to the legislative purpose in this case of first impression, ³ and thus reverse.

We agree with Judge Owen that the rationale of the renewal period in § 24 is clear. We are fully aware of the dangers of relying upon isolated bits of legislative history in statutory reconstruction, Jackson, J., concurring in Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384, 395, 71 S.Ct. 745, 95 L.Ed. 1035 (1951), but there are exceptions proving the rule. 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 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 House Committee reporting out the 1909 Act called for one 28 year renewal, and in connection therewith had the following to say:

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 that right.

H.R.Rep.No.2222, 60th Cong., 2d Sess. 14 (1909). See 2 M. Nimmer, The Law of Copyright § 113, at 461, and § 117.21, at 493-94 (1974 ed.). This congressional purpose to give the author or his family the renewal right has been recognized by the courts, although not in any recent case. See Harris v. Coca-Cola Co., 73 F.2d 370, 371 (5th Cir. 1934):

The second period is intended, not as an incident of the first for the benefit of the then owner of the expiring copyright, but as a second recognition extended by the law to the author of work that has proven permanently meritorious by giving directly to him, if alive, or if not, to his widow, children, 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. 1055 (1943), the "basic consideration of policy underlying the renewal provision" was the right of "the author to sell his 'copyright' without losing his renewal interest."

A "posthumous work" is one of the three exceptions to the renewal statute. The only definition of "posthumous" which fulfills the legislative purpose of protecting authors and their families is that in the narrow situation not present here where a contract for copyright was never executed by the author during his life. See 2 M. Nimmer, Supra, S 114.1, at 464; Kupferman, Renewal of Copyright, 44 Colum.L.Rev. 712 (1944). In that case the estate can make its own contract and thereby protect itself. For example, had the work here been found among Bartok's effects, his widow and children could and presumably would have made their own arrangements to have it published. In that case the logical basis for excepting the widow and children from statutory protection is that, as original proprietors, they would have no need of it. See Kupferman, Supra, 44 Colum.L.Rev. at 715.

In this case, however, where the copyright contract was executed before the author's death, the family has no means of protection other than the statutory renewal right; ⁴ this is equally true whether the work is available in print or not. Yet the district court's definition of "posthumous" would create a legislative discrimination between families in these two equally unprotected situations. Where, as here, death occurs after copyright sale, but before publication, one commentator agrees that "no one has suggested any possible reason why the rights of the statutory beneficiaries should be defeated in such an instance." Bricker, Renewal and Extension of Copyright,29 S.Cal.L.Rev. 23, 38-39 (1955). See Kupferman, Supra, 44 Colum.L.Rev. at 715.

As Nimmer points out, the legislative purpose of protecting authors and their families derives not so much from a paternalistic view toward authors as a class as from the economic reality that

the form of property designated copyright, unlike real property and other forms of personal property, is by its very nature incapable of accurate monetary evaluation prior to its exploitation.

2 M. Nimmer, Supra § 113, at 462. This purpose is equally salient for all families where the copyright sale is during the author's lifetime. In short, where the legislative purpose of the statute is to extend protection to an author and his family, it makes better sense to read the "posthumous work" exception as a withholding of unnecessary protection where the family can...