De Sylva v. Ballentine

• Decision Date: 11 June 1956
• Docket Number: No. 529,529
• Citation: De Sylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956)
• Parties: Marie DE SYLVA, Petitioner, v. Marie BALLENTINE, as Guardian of the Estate of Stephen William Ballentine
• Court: U.S. Supreme Court

351 U.S. 570

76 S.Ct. 974

100 L.Ed. 1415

Marie DE SYLVA, Petitioner,

v Marie BALLENTINE, as Guardian of the Estate of Stephen William Ballentine.

No. 529.

Argued April 25, 1956.

Decided June 11, 1956.

Mr.

Theodore Kiendl, New York City, for petitioner.

Mr. Max Fink, Los Angeles, Cal., for respondent.

Opinion of the Court by Mr. Justice HARLAN, announced by Mr. Justice BURTON.

The present Copyright Act¹ provides for a second 28-year copyright after the expiration of the original 28-year term, if application for renewal is made within one year before the expiration of the original term.This right to renew the copyright appears in § 24 of the Act:

'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, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin 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 * * *.'

In this case, an author who secured original copyright on numerous musical compositions died before the time to apply for renewals arose.He was survived by his widow and one illegitimate child, who are both still living.The question this case presents is whether that child is entitled to share in the copyrights which come up for renewal during the widow's lifetime.

Respondent, the child's mother, brought this action on the child's behalf against the widow, who is the petitioner here, seeking a declaratory judgment that the child has an interest in the copyrights already renewed by the widow and those that will become renewable during her lifetime, and for an accounting of profits from such copyrights as have been already renewed.The District Court, holding that the child was within the meaning of the term 'children' as used in the statute but that the renewal rights belonged exclusively to the widow, gave judgment for the widow.Agreeing with the District Court on the first point, the Court of Appeals reversed, holding that on the author's death both widow and child shared in the renewal copyrights.226 F.2d 623.Because of the great importance of these questions in the administration of the Copyright Act, we granted certiorari, 350 U.S. 931, 76 S.Ct. 307.

The controversy centers around the words 'or the widow, widower, or children of the author, if the author be not living.'Two questions are involved: class, or in order of enumeration, and (2) class, or in order of enumeration, and (2) if they take as a class, does 'children' include an illegitimate child.Strangely enough, these questions have never before been decided, although the statutory provisions involved have been part of the Act in their present form since 1870.

I

The widow first contends that, after the death of the author, she alone is entitled to renew copyrights during her lifetime, exclusive of any interest in 'children' of the author.That is, she interprets the clause as providing for the passing of the renewal rights, on the death of the author, first to the widow, and then only after her death to the 'children' of the author.If the word 'or' which follows 'widower' is to be read in its normal disjunctive sense, this is not an unreasonable interpretation of the statute, which might then well be read to mean that 'children' are to renew only if there is no 'widow' or 'widower.'The statute is hardly unambiguous, however, and presents problems of interpretation not solved by literal application of words as they are 'normally' used.The statute must be read as a whole, and putting each word in its proper context we are unable to say, as the widow contends we should, that the clear purport of the clause in question is the same as if it read 'or the widow, or widower, if the author be not living, or the children of the author, if the author, and widow or widower, be not living.'

We start with the proposition that the word 'or' is often used as a careless substitute for the word 'and'; that is, it is often used in phrases where 'and' would express the thought with greater clarity.That trouble with the word has been with us for a long time: see, e.g., United States v. Fisk, 3 Wall. 445, 18 L.Ed. 243.In this instance, we need look no further than the very next clause in this same section of the Copyright Act for an example of this careless usage: '* * * or if such author, widow, widower or children be not living, then the author's executors * * *.'If the italicized 'or' in that clause is read disjunctively, then the author's executors would be entitled to renew the copyright if any one of the persons named 'be not living.'It is clear, however, that the executors do not succeed to the renewal interest unless all of the named persons are dead, since from the preceding clause it is at least made explicit that the 'widow, widower, or children of the author' all come before the executors, after the author's death.The clause would be more accurate, therefore, were it to read 'author, widow or widower, and children.'It is argued with some force, then, that if in the secceeding clause the 'or' is to be read as meaning 'and' in the same word grouping as is involved in the clause in question, it should be read that way in this clause as well.If this is done, it is then an easy step to read 'widow' and 'children' as succeeding to the renewal interest as a class, as the Court of Appeals held they did.

This Court has already traced the development of the renewal term in the several copyright statutes enacted in this country.SeeFred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 63 S.Ct. 773, 87 L.Ed. 1055, where it was held that the author, during his lifetime, could make a binding assignment of the expectancy in his future rights of renewal.The first federal statute, the Act of May 31, 1790, 1 Stat. 124, did not allow renewal by anyone except the author.In 1831, however, a new Act was passed, which for the first time gave to the author's family the right to renew after his death.Act of February 3, 1831, 4 Stat. 436.Section 2 of that Act provided:

'That if, at the expiration of the aforesaid term of years, such author * * * be still living, and a citizen * * * of the United States, or resident therein, or being dead, shall have left a widow, or child, or children, either or all then living, the same exclusive right shall be continued to such author * * *, or, if dead, then to such widow and child, or children, for the further term of fourteen years * * *.'(Italics supplied.)

It is significant that this statute, which instituted the present scheme of allowing a copyright to be renewed after the author's death, provided for the renewal interest in the 'widow and child, or children,' rather than in the widow or children separately.Petitioner concedes that under this statute the widow and children took as a class.This statute marked a major development in this phase of copyright legislation and created a system which, in its basic form, has been continued even to the present statute.

Section 88 of the Act of July 8, 1870, 16 Stat. 212, in consolidating the language of § 2 of the 1831 Act, made one important change in the language of the renewal section: the right of renewal was given to the author's widow or children, rather than to the widow and children.The section read as follows:

'That the author, * * * if he be still living and a citizen of the United States or 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 * * *.'(Italics supplied.)

This section became § 4954 of the Revised Statutes, and was amended in 1891, 26 Stat. 1107, by deleting the requirement that the author be a citizen or resident of the United States.The section was otherwise left intact.The present renewal provision appeared first as § 23 of the Copyright Act of March 4, 1909, 35 Stat. 1080, and was continued without change in 17 U.S.C. § 24,17 U.S.C.A. § 24.

Knowing, as we do, that 'or' can be ambiguous when used in such a context as this, it is difficult to say that the change made in the 1870 Copyright Act had the effect of changing, as petitioner contends it did, the children's interest from an interest shared with the widow to one which became effective only after her death.There is no legislative history, either when the 1870 Act was passed or in the subsequent sessions of Congress, to indicate that Congress in fact intended to change in this respect the existing scheme of distribution of the renewal rights.Rather, what scant material there is indicates that no substantial changes in the Act were intended.²It would not seem unlikely that the framers of the 1870statute, interested in compressing the somewhat cumbersome phrasing of the prior Copyright Act, simply deleted the words 'and child' with the thought that the remaining phrase 'or children' expressed precisely the same result, leaving unaffected the rights of the author's children which had been the same for almost forty years.

We then come to the 1909 Copyright Act.By § 23 of that Act, now 17 U.S.C. § 24,17 U.S.C.A. § 24, there were added to those entitled to renewal rights after the author's death—the widow or children—the author's executors, or, in the absence of a will, his next of kin.Each of these named classes is separated in the statute by a condition precedent to the passing of the renewal rights, namely, that the persons named in the preceding class be deceased.As already noted, it is at least clear that, if the author and his widow have both died, survived by a child, that child is...