Silverman v. Sunrise Pictures Corporation, 245.

• Decision Date: 11 May 1921
• Docket Number: 245.
• Parties: SILVERMAN v. SUNRISE PICTURES CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

273 F. 909

SILVERMAN v. SUNRISE PICTURES CORPORATION.

No. 245.

United States Court of Appeals, Second Circuit.

May 11, 1921

Ross &amp Kaufman, of New York City (Walter C. Noyes, Arthur Leonard Ross, and Joseph B. Kaufman, all of New York City, of counsel), for appellant.

Kahn &amp Zorn, of New York City (J. Joseph Lilly, Clinton T. Roe, and Charles P. Kramer, all of New York City, of counsel), for appellee.

Before WARD, HOUGH, and MANTON, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

The single question argued at bar is whether any rights, under the copyright statute (Comp. St. Sec. 9517 et seq.) or otherwise, resulted from the action of a part only of the deceased author's next of kin.

Mere statement of the scope of discussion eliminates, however everything but inquiry as to how, when, by whom, and for whom what is called 'renewal' of statutory copyright may be obtained; for, whatever is the proper historic view, it is authoritatively settled that in the United States there is no copyright, except that both created and secured by act of Congress. Holmes v. Hurst, 174 U.S. 82, 19 Sup.Ct 606, 43 L.Ed. 904. To dwell on the right of literary property does not advance the matter; for that exists without copyright, is not increased by it, and means neither more nor less, after publication, than it did before, viz. the right of disseminating by every lawful means the author's expression of thought. But the statute and that alone prevents others from doing the same thing; wherefore copyright may be described, though not defined, as the only practical method of uniting publication with profit.

But though plaintiff's rights, if they exist, are derived solely from that section of the act (No. 24 (Comp. St. Sec. 9545)) dealing with renewals, as distinct from original grants or registrations, aid is derived from considering the nature of copyright as property. The exclusive right of multiplying and distributing written, pictured, or otherwise recorded thought is an incorporeal hereditament, having in origin and nature much resemblance to a patent for invention. There are many and important differences in the extent and incidents of the protection given an inventor, as compared with that afforded an author (Bobbs- Merrill Co. v. Straus, 210 U.S. 345, 28 Sup.Ct. 722, 52 L.Ed. 1086), but they are alike as estates, in that both are statutory only, both give nothing but the power of denying to others what author or inventor had without and before the statutes, and both are incorporeal and heritable. Nor can any difference in respect of estate nature be found between original and renewed copyrights, when both are in existence and are compared.

But there is a marked difference in respect of the persons to whom the rights accrue. No one but the author, or his quasi assignee, the proprietor, can obtain the original copyright (Societe v. Vitagraph Co., 251 F. 258, 163 C.C.A. 414), while as was said in White, etc., Co. v. Goff, 187 F. 247, 109 C.C.A. 187, the statute does not really give to the author a true extension or renewal, but authorizes 'a new grant to the author, or the others enumerated' in section 24. See the same ruling as to an earlier act. Pierpont v. Fowle, 2 Woodb. & M. 23, Fed. Cas. No. 11,152.

The words of the Twenty-Fourth section are given below (Comp. St. Sec. 9545). They relate only to copyrights in force when the act was passed in 1909; but, as section 23 (section 9544) confers in the same words the same privileges as to copyrights under the act, their construction is important. ^[1]

We cannot discover that what may be called the renewal provisions of the present act have received judicial consideration other than that of White, etc., Co. v. Goff, supra, affirming the opinion of Brown, District Judge, in (D.C.) 180 F. 256. These cases very closely follow the reasoning and conclusion of Assistant Attorney General Fowler (28 Op.Attys.Gen. 162) rendered shortly before the judgment of the appellate court.

On this authority, as well as, the reason of the matter, we regard it as settled: (1) That the proprietor of an existing copyright as such has no right to a renewal. (2) There is nothing in Paige v. Banks, 13 Wall. 608, 20 L.Ed. 709, opposed to this ruling. (3) The statute confers no right of renewal upon administrators. (4) The purpose of the statutory renewal provisions is to give to the persons enumerated in the order of their enumeration a new right or estate, not growing legally out of the original copyright property, but a new creation for the benefit (if the author be dead) of those naturally dependent upon or properly expectant of the author's bounty.

Thus far authority may be cited, but hitherto no court has been required to consider such a state of facts as that at bar. When Mrs.

Wilson died, there was no right of renewal in existence, for that right only arises one year before expiration of the current and original copyright. Again, her estate was distributed and her executors ceased to function before that statutory year began; and when an administrator d.b.n.c.t.a. (who in point of fact was the surviving executor) attempted to sell that which he had never applied for, the year within which such applications are permitted had long passed.

It is, we think, plain that the Legislature intended to keep the original and renewal copyrights continuous; there is no provision for the saving of any rights, if the statutory year be permitted to pass without action by someone. It would seem to follow that, if an author unfortunately dies on the day of expiry of his copyright without having himself acted in the premises, all possibility of a renewal in, by, or for any one is gone forever. It follows that, no matter who had the right to renew, there are no present rights, except such as directly flow from the action of Mrs. Bragg and Mrs. Tarleton, who assumed to do what they did as next of kin. It also follows that the conveyance from the administrator d.b.n.c.t.a. is a nullity, and whether such result flows from the fact of his being an administrator, or from his lack of action when he was executor, is a matter of no present moment.

In the White Case, supra, 187 F. 253, 109 C.C.A. 193, it is pointed out that the congressional intent, as evidenced by the report of committee, was 'to permit an author who had no wife or children to bequeath by will the right to apply for the renewal. ' It may be noted here, as the real reason for this litigation, that until after the estate was closed no one thought the copyright worth renewing. Value has been given to this and many other old copyrights, and rights thereto, by the growth of the moving picture and photo play industry.

Defendant's claim to use Mrs. Wilson's novel without recompense to any one, may be thus summarized: (1) Legatees as such never have any renewal rights, because they are not named in the statute. (2) In the absence of immediate family, and because Mrs. Wilson made a will duly probated, the executors, as the next class enumerated, were the only persons capable of applying, and were therefore bound to remain in active office in order so to apply. Their failure so to do worked a forfeiture of the privilege of next of kin. (3) But, if the last point be not well taken, then the right of next of kin is unitary; application must be by all; the effort of a fraction is of no avail.

With the first proposition we agree; legatees as such must get whatever they are entitled to through the executors. How they would or could proceed, if through negligence, malice, or dishonesty executors did not act, is a question not before us. But resolution of the second point depends upon the query: How far has the statute, in sections 23 and 24, given a childless and widowed author the power to bequeathing by will the right to apply for renewal?

It is plain from the language of the act, and from the design and purpose thereof as expressed by congressional committee and recognized by courts, that the author cannot take away the rights of widow, children, etc., before the opening of the last year of original copyright. It is not until then that any estate or chose...