Bouve v. Twentieth Century-Fox Film Corporation

• Decision Date: 14 July 1941
• Docket Number: No. 7741.,7741.
• Citation: 122 F.2d 51
• Parties: BOUVE, Register of Copyrights, v. TWENTIETH CENTURY-FOX FILM CORPORATION.
• Court: U.S. Court of Appeals — District of Columbia Circuit

122 F.2d 51 (1941)

BOUVE, Register of Copyrights, v. TWENTIETH CENTURY-FOX FILM CORPORATION.

No. 7741.

United States Court of Appeals for the District of Columbia.

Decided July 14, 1941.

Francis M. Shea, J. F. Mothershead, H. L. Godfrey, Edward M. Curran, and William S. Tarver, all of Washington, D. C., for appellant.

Fulton Brylawski, William B. Wolf, and Simon Fleishman, all of Washington, D. C., for appellee.

Francis Gilbert, of New York, N. Y., amicus curiae, for Standard Music Publishers' Ass'n of the United States, Inc.

Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.

MILLER, Associate Justice.

Appellee deposited in the Copyright Office two copies of printed matter, bound together in book form and entitled "In Old Chicago." It tendered two dollars in payment of the registration fee. The Register of Copyrights refused registration upon the ground that the material was not a book but, instead, was page proof of twenty contributions to periodicals within the meaning of Section 12 of the Copyright Act;¹ hence, that each contribution must be separately registered; and that a separate fee of two dollars must be paid for the registration of each.

Thereupon, appellee petitioned for a writ of mandamus to compel the Register to accept the application for registration and to register the book in the Copyright Office. In his answer, appellant took the further position that even if the material did constitute a book, the copies deposited were not the best edition, as required by Section 12 of the Act. The District Court rejected appellant's contentions and ordered him to register the claim of copyright in accordance with appellee's application and to issue a certificate of registration.

The first question presented on this appeal is, therefore, whether the Register has any discretionary power in connection with the registering of works subject to copyright. Section 10 of the Act² provides that a person entitled to secure a copyright may obtain registration of his claim by complying with the provisions of the Act, and upon compliance the Register shall issue the certificate provided for in Section 55.³ Section 54⁴ provides that whenever a deposit has been made of a copy of any work under the provisions of the Act, the Register shall make entry thereof in his record books. Section 55 provides that in the case of each such entry the claimant shall be entitled to a certificate of registration. Section 61 of the Act provides that: "The register of copyrights shall receive, and the persons to whom the services designated are rendered shall pay, the following fees: For the registration of any work subject to copyright, deposited under the provisions of this title, $2, which sum is to include a certificate of registration under seal: * *."⁵ If these were the only pertinent sections there might be merit in the contention of amicus curiae, which takes the extreme position that the Register is only a ministerial officer. However, there are several other sections which must be read in order to determine the question.

Section 53⁶ of the Act provides that: "Subject to the approval of the Librarian of Congress, the register of copyrights shall be authorized to make rules and regulations for the registration of claims to copyright as provided by this title." Certainly, this must contemplate the exercise of some discretion, not only in the making, but in the administration of such rules. And the Register, in 1926, with the approval of the Librarian of Congress, issued rules and regulations,⁷ included in which are the following:

"6. (b) Periodicals. — This term includes newspapers, magazines, reviews, and serial publications appearing oftener than once a year; bulletins or proceedings of societies, etc., which appear regularly at intervals of less than a year; and, generally, periodical publications which would be registered as second-class matter at the post office. Serial publications which are not clearly `periodicals' should be registered as books and the application for registration should be accompanied by the required affidavit.

* * * * *

"24. Promptly after first publication of the work with the copyright notice inscribed, two complete copies of the best edition of the work then published must be sent to the Copyright Office, with a proper application for registration correctly filled out and a money order for the amount of the legal fee." (Italics supplied)

Even amicus curiae concedes that the Register may properly refuse to accept for deposit and registration "objects not entitled to protection under the law." It rationalizes this concession on the theory that the Register has no power to accept anything other than the writings of an author. It is true that Section 4 of the Act⁸ speaks in those terms, but its actual language is: "The works for which copyright may be secured * * * shall include all the writings of an author." (Italics supplied) And Section 5 then goes on to provide that the application shall specify to which of the thirteen classes, therein set forth, the work in which copyright is claimed belongs.⁹ These thirteen classes of works which — whether they can be described properly as writings — are, nevertheless, entitled to registration, include maps; works of art; models or designs for works of art; reproductions of works of art; drawings or plastic works of a scientific or technical character; photographs; prints and pictorial illustrations; and motion pictures. And, finally, Section 5 provides that the specifications which appear in the thirteen classes shall not be held to limit the subject matter of copyright as defined in Section 4.¹⁰ In light of recent trends and the divergent philosophies of different schools of thought as to what constitutes art, to say nothing of the large possibilities inherent in plastic works of a scientific or technical character, it seems obvious that, unless the Register has some power to control deposits for copyright, it may soon become necessary to build a new library annex. It seems obvious, also, that the Act establishes a wide range of selection within which discretion must be exercised by the Register in determining what he has no power to accept. The formula which he must apply is a more difficult one than that of the Recorder of Deeds, upon which appellee relies by way of analogy.¹¹ Nor would there seem to be any doubt that the Register may refuse to issue a certificate of registration until the required fee is paid,¹² and until other formal requisites of the Act have been satisfied.¹³

It does not follow, however, that he has power to exercise uncontrolled discretion in refusing registration of material which is subject to copyright, merely because he disagrees with the author as to how it should be classified. The government does not contend that the Register is an officer whose acts are beyond judicial review and correction. Its position is that his powers are similar to those exercised by the Postmaster General in admitting articles into the mails;¹⁴ by the Recorder of Deeds in recording instruments;¹⁵ and, perhaps, by the Register of the Land Office in determining whether public lands fall within the category of lands subject to sale and pre-emption.¹⁶ It contends, generally (1) that the Register's decision should be accepted as conclusive on questions of classification or identification, even though they may involve mixed questions of law and fact; (2) that his conclusion on questions of law alone should likewise be accepted unless the court is satisfied that it is clearly erroneous; and it contends, specifically (3) that the Register's determination that appellee's application did not comply with the conditions of the Act cannot be set aside unless founded on a clearly erroneous conclusion of law.

Whatever may be the merits of this contention, in its three phases, in our view the District Court correctly held that the determination made by the Register was reviewable in the present case; that it was founded on a clearly erroneous conclusion of law; that the material deposited by appellee was a book, within the meaning of Section 5 of the Act; and that it was entitled to registration of its claim of copyright therein, and to issuance of a certificate. No real question of fact is in dispute in the present case. On argument the government conceded freely that, tested by the usual mechanical standards of bookmaking, the material deposited satisfied the requirements. There is also no question that the material consisted of the writings of an author, and that the claim of copyright was entitled to registration; in fact that it was the duty of appellee to make the deposit.¹⁷

If the deposited material was and is a book, then the fee which was tendered was sufficient and appellant's duty to register was imperative and unqualified.¹⁸ The only remaining question, therefore, is whether, within the meaning of the Act, the material is a book. This is a question of law.¹⁹ And it is a question of law which must be answered, not in terms of the Register's power to classify material deposited with him, but in terms of his power to refuse registration. The relief asked in the District Court is not dependent upon classification. The government concedes that the Act does not expressly authorize the Register to determine whether an applicant has complied with the requirements imposed therein, as a condition of registration.²⁰ But assuming that he has full power to classify deposited material, still, this gives him no power to refuse registration of a claim of copyright, which has been already secured by publication and notice;²¹ if the claim is based upon material which is actually the subject of copyright. If the privilege of registration is dependent at all upon classification, it is true in only a limited sense. Although the first sentence of Section 5²² might suggest that accurate classification is a prerequisite to registration, the...