Amicus Curiae Brief — Stewart v. Abend

Supreme Court brief1990

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IN THE SUPREME COURT OF THE UNI

October Term, 1989

JAMES STEWART, ET AL.,

Petitioners,

SHELDON ABEND, d/b/a

AUTHORS RESEARCH COMPANY

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE REGISTER OF COPYRIGHTS

AS AMICUS CURIAE SUPPORTING RESPONDENT

DOROTHY SCHRADER

General Counsel

United States Copyright Office

James Madison Memorial Building

Washington, D. C. 20540

(202) 707-8380

RALPH OMAN

WILLIAM F. PATRY

WILLIAM J... ROBERTS, JR.

United States Copyright Office

——_

LON PRESENTED

Under the copyright renewal provisions

of the 1909 Copyright Act, did the death of

the author of the underlying work prior to

the renewal period terminate the author's

grant of derivative work rights for the

renewal term?”

INTEREST OF THE AMICUS CURIAE ...

Dn 2 © 8 © © © © © 6 6 ce

A. The Statutory Framework .

B. The Facts of the Case ..

SUMMARY OF THE ARGUMENT ......

THE COURT OF APPEALS CORRECTLY HELD

THAT THE DEATH OF THE AUTHOR BEFORE

THE RENEWAL PERIOD CUTS OFF THE

CONTINGENT INTEREST OF THE AUTHOR'S

ASS IGNEE . * . . . . * . . . . . . .

B. version .

C. rt of Appeals Below

Correctly Applied This

Court's Raltien in

Miller Music v. Daniels .

CONCLUS ION * . . . . . * . * . . . .

Page

—_—

Se el

TABLE OF AUTHORITIES

Cases:

ayes Releasing ae v. Hastings,

. rT. . . . . . . 21

Fred Fisher Music Co.

Inc. v.

Frederick Music Company v.

Son Sickle

Vv. 9 (S.D.N.Y. March 17,

1989) . >. . . . . . >. >. > . . . > . >. 15

G. Ricordi & Co. v. Paramount

tures nc.,

" (2d Cir.),

cert. denied, 342 U.S. 849 (1951) . . 20

Miller Music Corp. v. Charles N.

nieis nc.,

Sez U.S. S73 (1960) ....... passia

Mills Music, Inc. v. Snyder,

>. > . . . >. . . . . 23

Rohauer v. Killiam Shows, Inc.,

° r.), cert. denied,

431 U.S. 949 (1977) ..... s+ « passim

Russell v. Price,

. th Cir.), cert. denied,

Gap Gere See Guerer ceo coceseeetea at

Statutes:

et seq. (1976 ed.):

-ii-

$7, 17 U.S.C. 7 we Fe ae 25-26

$24, 17 U.S.C. 246 .. « 1,2,3,18,20

et _seq.

17 U.S.C. 304(c)(6)(A) . . «. « 15,24

17 U.B.6. WS wc cececsveccee

17 U.S.C. 701 (a) ene eo 6a ee 2

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

JAMES STEWART, ET AL.,

PETITIONERS ,

SHELDON ABEND, d/b/a AUTHORS RESEARCH

COMPANY

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE REGISTER OF COPYRIGHTS

AS AMICUS CURIAE SUPPORTING RESPONDENT

This case presents an important and

recurring question concerning the meaning

and application of the renewal provisions

of section 24 of the Copyright Act of 1909

(formerly 17 U.S.C. $24 (1909)). The

of Congress, is generally responsible for -

discharging "[a]ll administrative functions

and duties," under the Copyright Act of

1976 (17 U.S.C. 701(a)). Section 304 of

the 1976 Act provides that the Copyright

Office shall continue to make renewal

registrations for all eligible works in

which federal copyright subsisted for the

first term on January 1, 1978. Thus, the

renewal provisions found in section 24 of

the 1909 Act continue to play an important

and significant role for works created on

or before January 1, 1978 and will continue

to do so well into the next century.

Because the Copyright Office continues

to play an active role in the renewal

process through registration, it has a

strong interest in ascertaining the

substantive rights of renewal applicants.

and carrying out the intent of the 1909

Congress. The law of renewal is compli-

cated and involved and much in need of

judicial clarification. To better

allie

facilitate such a clarification, and to

fulfill its administrative functions and

duties under the Copyright Act, the

present controversy.

STATEMENT

A. THE STATUTORY FRAMEWORK

The Copyright Act of 1909 provided

that “copyright secured by this title shall

endure for twenty-eight years from the date

of first publication." 17 U.S.C. 24

(1909). The same section also provided for

a second, or renewal term of twenty eight

years under the following conditions:

That in the case of any other

copyrighted work, including a

contribution by an individual

author to a periodical or to a

cyclopedic or other composite

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 applica-

tion for such rengwal 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.

The 1909 Act thus had two "terms" of

years, and a second, “renewal” term of 28

years, which was conditioned upon compli-

ance with the provisions of Section 24.

Failure to comply with those provisions

resulted in the copyright expiring at the

end of the original 28 year term.

B. THE FACTS OF THE CASE

Petitioners MCA, Inc., Universal Film

Exchange, Inc., James Stewart, Patricia

Hitchcock O'Connell and Samuel Taylor are

co-trustees and co-executors respectively

of the estate of Alfred Hitchcock. Sheldon

Abend, d/b/a Authors Research Co., is the

owner of the renewal copyright on the

original story on which the motion picture

"Rear Window" was based. Abend's complaint

alleges copyright infringement based on the

petitioner's re-release of "Rear Window" in

theatres, on television and videocassette.

"Rear Window" is based on a story

written by Cornell Woolrich entitled "It

Had to be Murder," which was first

published in February 1942 in the Dime

Detective Magazine. In 1945, Woolrich

agreed to assign the rights to make motion

pictures of six of his stories, which

included “It Had to be Murder," to B.G.

DeSylva Productions. He also agreed to

renew the copyrights in the stories at the

appropriate times and then assign the same

movie rights to DeSylva for the duration of

the renewal extension.

In 1954, Paramount Pictures produced

and distributed the movie version of Wool-

rich's story "It Had to be Murder" entitled

ste

"Rear Window." Woolrich died in 1968

without a surviving spouse or child. He

left his property to a trust administered

by his executor, Chase Manhattan Bank, for

the benefit of Columbia University. In

December of 1969, Chase Manhattan renewed

the copyright in "It Had to be Murder"

pursuant to 19 U.S.C. $24 of the 1909

assigned the renewal copyright in the story

to Respondent Abend in 1972.

In 1974, Respondent Abend brought suit

against MCA, Alfred Hitchcock and James

Stewart, the owners of the "Rear Window"

film, alleging copyright infringement of

"It Had to be Murder" based on television

broadcasts of the film. The parties were

able to settle the suit and Respondent

dismissed his complaint. However, three

years later the Second Circuit handed down

its decision in Rohauer v. Killiam Shows,

nce., 551 F.2d 484 (2d Cir.), cert.

ols

denied, 431 U.S. 949 (1977). Based solely

on this decision, involving unrelated

parties, the petitioners re-released "Rear

Window" on a nationwide basis and garnered

revenues in excess of $12 million.

Respondent brought suit against Hitch-

cock, Stewart and MCA and included

Universal Film Exchange, the distributor of

the film. Respondent alleged, inter alia,

that the re-release of "Rear Window"

infringed his renewal rights to "It Had to

be Murder." Based on its review and

application of the Rohauer decision, the

district court denied respondent's motion

for summary judgment.

On appeal the Court of Appeals

reversed, finding, that the Rohauer court

misapplied prior law governing copyright

renewals under the 1909 Act. The Ninth

Circuit placed heavy reliance on the

Supreme Court's decision in Miller Music

Corp. v. Charles N. Daniels, Inc., 362 U.S.

\ .

- a

373 (1960), which held that an assignment

of full copyright renewal rights by the

author prior to the time for renewal

cannot defeat the right of the author's

Statutory successor to the renewal

time that the right for renewal has

accrued. The court of appeals thus

reasoned that in the present case, an

assignment of part of the rights in "It Had

to be Murder"--i.e. the right to produce a

movie version--must be unenforceable if the

author dies before effecting renewal of the

underlying copyright.

The court of appeals also examined the

legislative history of the 1909 Act and

found the Rohauer court's reliance on the

provisions of the 1976 Act and equitable

concerns misplaced and inconsistent with

Congressional intent under the 1909 Act.

The court concluded: "Neither the

equities, precedent, nor Congressional

aie

intent justify us in changing the balance

between owners of renewal copyrights in

underlying works and owners of the

has refrained from doing so."

SUMMAKY OF THE ARGUMENT

The court of appeals below correctly

held that this Court's decision in Miller

Music Corp. v. Charles N. Daniels, Inc.,

362 U.S. 373 (1960) controls, and it

correctly applied Miiler to the facts at

issue. The decision below should,

cherefore, be affirmed. In reaching a

contrary result, the district court below

erroneously relied on Rohauer, a decision

that has apparently been disavowed,

however gently, by its own circuit, and

which was, in any event, incorrectly

decided.

In Fred Fisher Music Co., Inc. v. M.

Witmark & Sons, 318 U.S. 643 (1943), this

-9-

Court held that under the 1909 Act an

author could assign his or her vested

well as in futuro rights to the renewal

term copyright, provided that the author

survived into the renewal period. As a

logical corollary to Fisher v. Witmark, in

Miller Music Corp. v. Charles N. Daniels,

Inc., supra, this Court held that if the

author failed to survive into the renewal

period, any assignment of rights for the

renewal term was void, and consequently,

the author's statutory heirs "obtain the

renewal copyright free of any claim

founded upon an assignment made by the

author in his lifetime." 362 U.S. at 375.

This case involves a very straight-

forward application of Fisher v. Witmark

and Miller Music v. Daniels: the author

Woolrich, during the original term, made an

assignment to petitioners’ predecessor

permitting the making of a derivative

ste

motion picture for both the original and

renewal terms. Woolrich died, however,

before the renewal period, and thus, his

assignment to petitioners for the renewal

period was void.

THE COURT OF APPEALS CORRECTLY HELD THAT

THE DEATH OF THE AUTHOR BEFORE THE RENEWAL

PERIOD CUTS OFF THE CONTINGENT INTEREST OF

THE AUTHOR'S ASSIGNEE

A. Fisher v. Witmark and Miller

Music v. Daniels.

The 1909 Copyright Act is based on two

discrete grants of protection: an original

term of 28 years, and a second or so-called

"renewal" term of 28 years. This renewal

term is entirely contingent upon the author

or his or her statutory successors filing a

renewal application at the appropriate

time. If a proper renewal application is

not made, the copyright in the work expires

at the end of the original 28 year term.

Due to economic necessity, it was common

ebte

practice for authors to assign rights to

both the original and renewal term to a

publisher or other distributor. These

distributors would frequently then enter

into sublicenses with third parties for the

creation of “derivative works" -- works

based on or “derived from" the copyrighted

work. Sometimes, as in the present case,

the author would directly license the

creation of a derivative work, here a

motion picture based on a story.

In Fred Fisher Music Co., Inc. v. M.

Witmark & Sons, 318 U.S. 643 (1943), this

Court addressed the issue of whether

assignments of both the vested original

term and the in futuro renewal term were

enforceable under the statute. In

answering this question affirmatively, the

Court reviewed the legislative history of

the 1909 Act (the same statute involved

. here) and found a Congressional intent to

give the author (or his or her statutory

-12-

successors) two bites at the apple, by

providing for two terms of relatively short

duration, as opposed to a single term of

pair aggregate duration. 318 U.S. at

654. A single term, it was believed, would

work to the author's detriment since he or

she could be compelled by economic

necessity to assign all rights at the

beginning of the term, and thus would not

benefit in the event the work proved

successful a number of years down the road.

By providing that an author must survive

until the senueah parted for the assignment

of renewal rights to be valid, this Court

permitted the authors' successors to have

the “second bite at the apple."

Miller Music v. Daniels merely applied

Fisher v. Witmark to a factual setting like

the present one, where the author left no

heirs and the estate was thus administered

by an executor. As with the present case,

the copyright owner in Miller Music v.

otBe

Daniels had, during the original tern,

assigned. rights in both the original and

renewal term, but died before the renewal

period. !

Importantly for this case, the Miller

court held that where an author dies before

the renewal period, the statutory succes-

sors “obtain the renewal copyright free of

any claim founded upon an author in his

lifetime. These results follow not because

the ... assignment is invalid, but because

{the author] had only an expectancy to

assign; and his death, prior to the renewal

1 The "renewal period" is the

Statutory period at the end of the first

term of -copyright during which application

for renewal must be filed and registration

made in the Copyright Office. Originally,

the renewal period was the last year of the

first term of copyright. Under section 305

of the 1976 Act, all terms of copyright run

to the end of the calendar year in which

they would otherwise expire. This means

that, depending on the date copyright was

originally secured, some works are eligible

for renewal for nearly 2 years at the end

of the first term of copyright.

-14-

period, terminates his interest in the

renewal...." 362 U.S. at 375. 2

The Miller Court recognized that the

law might result in a hardship on the

authors’ assignee since the assignee, based

solely on the infelicitous and unpredict-

able event of the author's death, lest

rights it had been assigned, but the Court

also noted that "[{w]jhether it works at

times an injustice is a matter for the

Congress, not for us." Id. at 378.3

2 The renewal right can be

exercised only during the statutory

renewal period by registration by the

living statutory claimant. The renewal

interest in the copyright vests upon timely

registration by the proper renewal

claimant. Once vested, the renewal

interest is no longer an expectancy, and

the subsequent death of the claimant during

the remainder of the renewal period has no

effect on ownership of the copyright in the

renewal term. Frederick Music Company v.

Don Sickler, 88 Civ. 4169 (S.D.N.Y. March

T7, 1989).

3 This “injustice” was considered

by the Congress when it enacted the 1976

provides that owners of derivative works

prepared under a grant of authority by the

-15-

The Court further noted, however, that in

practice the assignee "is deprived of

nothing. Like all purchasers of contingent

interests, he takes subject to the

possibility that the contingency may not

occur." Id. Indeed, there was no

prohibition on assignees structuring their

purchase agreement accordingly: payment

author of the underlying work may continue

to utilize the derivative work under the

terms of the grant even after the 35 year

termination of that grant. However, the

court of appeals decision in this case does

not, in fact, work an injustice. The owner

of the motion picture "Rear Window” will be

able to license exhibition of the film, but

the copyright owner of the underlying story

from which the film was derived, must be

appropriately compensated. Woolrich's

assignee received only contingent rights in

the renewal term, and their contingent

nature would have affected the price paid

for the rights. Also, in other derivative

works -- for example, anthologies,

abridgements, and translations -- the

relative significance of the contribution

by the original author far overshadows the

derivative authorship. Absent clear

statutory language the Court should not

adopt an interpretation of the 1909 Act

that would truly be unjust, by allowing

continued use of any derivative work in the

renewal term, without compensation to the

owner of copyright in the original work.

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for the renewal period could have been made

contingent in part on the author's

surviving into the renewal period.

In summary, while the system is

fraught with the uncertainty of life,

prudent assignees could and did protect

themselves by determining when and how much

to pay for the expectant rights, and it is

difficult to believe that large corporate

users of copyrighted works, like petitioner

motion picture companies here, were without

legal counsel capable of making the best of

the situation. In any event, everyone,

including petitioners here, negotiated

their agreements with full knowledge that

the rights they obtained were expectant

ones only.

B. The Rohauer Diversion.

All was well until 1977, when the

Second Circuit handed down its decision in

Rohauer v. Killiam Shows, Inc., 551 F.2d

484 (2d Cir.), cert. denied, 431 U.S. 949

=|»

——e———EeeC

(1977). Rohauer involved a dispute over

the 1926 motion picture "The Son of the

Sheik,” starring Rudolph Valentino. In

1925, Edith Hull completed and published a

novel entitled "The Sons of the Sheik." In

December of that year, she assigned the

motion picture rights to her copyrighted

novel to Joseph Moskowitz who subsequently

produced and released the film "The Son of

the Sheik." The assignment of the movie

rights was for the original term of the

After release of the film, the copyright in

the film, a derivative work of the original

novel, was assigned on several occasions

until it made its way into the hands of the

defendant Killian.

Ms. Hull died in 1943, well before the

renewal period. In 1952, her daughter

renewed the copyright in the novel pursuant

to section 24 of the 1909 Act and in 1965

assigned the movie and television rights to

-18-

—

Rohauer. In 1971, the original "The Son

of the Sheik" film was shown on a New York

public television station using a tape made

from a print obtained from defendant

Killiam. Rohauer contended that he owned

the exclusive rights to movie versions of

Ms. Hull's novel during the renewal period,

and that Killiam's interest in the renewal

period was cut off when Ms. Hull died

before the renewal year. Defendant Killiam

argued that although no new motion picture

versions of the novel could be created,

since Ms. Hull's daughter had assigned that

right for the renewal period to the

plaintiff, Killiam could still authorize

exhibitions of the original film since the

film was made during the term of Ms. Hull's

original copyright and pursuant to an

assignment made during that term. The

district court agreed with the plaintiff,

believing that its holding was consistent

with previous Second Circuit decisions,

-19-

particularly G. Ricordi & Co. v. Paramount

Pictures, Inc., 189 F.2d 469 (2d Cir.),

cert. denied, 342 U.S. 849 (1951).

The court of appeals reversed. Judge

Friendly, writing for the court, dismissed

the caselaw as distinguishable and

inapplicable to the issue of the defend-

ant's rights in the derivative work during

the renewal period. In particular, Judge

Friendly attempted to distinguish this

Court's decision in Miller Music Corp. v.

Charles N. Daniels, Inc., 362 U.S. 373

(1960) and the Second Circuit's decision in

G. Ricordi & Co. v. Paramount Pictures,

Inc., 189 F.2d 469 (2d Cir.), cert.

denied, 342 U.S. 849 (1951). The court

then focused on the opinions of the

commentators and tersely concluded that

there was no forceful agreement among them

as to the proper interpretation of Section

24.

-20-

Rohauer's sway in the Second Circuit

was, however, apparently short-lived. In

Filmvideo Releasing Corp. v. Hastings, 668

F.2d 91, 93 (2d Cir. 1981), Rohauer was

described as a "minor abberation," and it

is not without significance that in

reaching its result, the Filmvideo

Releasing Corp. court approvingly cited the

Ninth Circuit's opinion in Russell v.

Price, 612 F.2d 1123 (9th Cir. 1979), cert.

denied, 446 U.S. 952 (1979). Russell

contains an extensive discussion and

criticism of Rohauer, 612 F.2d at 1126-

1129, a discussion cited in Filmvideo

Releasing Corp., 668 F.2d at 92.

C. The Court of Appeals Below

Bevistos— te Willer Wuste-v-

ecision in er Music v.

Daniels -

After reviewing Rohauer and this

Court's decision in Miller Music Corp. v.

Charles N. Daniels, Inc., 362 U.S. 373

(1960), the court of appeals below held.

-21-

that Miller Music "provides ineluctable

authority for Abend's position. Since

Woolrich died before the renewal period

arrived, his purported assignment of

renewal rights is ineffective and irrele-

vant; the most defendant's predecessors

could have acquired was an expectancy in

the right to use the story that underlies

the derivative work during the story's

renewal period." 863 F.2d at 1475.

We agree. This Court's decision in

Fred Fisher Music Co., Inc. v. M. Witmark &

Sons, 318 U.S. 643 (1943) established that

any assignment of renewal rights made

during the original term is void if the

author dies before the renewal period.

Miller Music, supra, established that under

such circumstances, the author's statutory

successors take the renewal rights - all of

them - free and clear of any assignments

made by the author.

-22-

Defendants only recourse is to a

different statute, Section 304(c)(6)(A) of

the 1976 Act, construed by this Court in

Mills Music, Inc. v. Snyder, 469 U.S. 153

(1985). Not only does Section 304(c) (6) (A)

involve a different statute, inapplicable

to this case, but it involves a new term of

protection, established for the first time

under the 1976 Act, based on an entirely

different set of policy considerations.

The 1976 Act left intact the structure of

the renewal provisions for pre-1978 works,

merely adding an additional 19 years on to

the renewal term. Greatly simplified,

Section 304 of the Act provides with

respect to this additional 19 year term

that the author can elect to terminate any

grant of rights made in the work. The

author can not, however, terminate

assignments for the “original” renewal term

of 28 years. If Congress wished to change

the result of this Court's decisions in

=23-

Fisher v. Witmark and Miller Music vy.

Daniels, it certainly could have done so in

Section 304, but it did not; to the

contrary, it carefully erected a new

structure (the 19 year termination right)

based on those decisions. Rohauer

seriously erred, therefore, by construing

the new structure of Section 304(c) (6) (A)

as fundamentally altering the preexisting

law. Certainly, at the least, such a

dramatic reworking of the law would have

occasioned some comment by Congress and the

participants in the almost thirty year,

well documented revision process.

Apart from the 19 year termination

right, the renewal provision of the 1909

Act prevents continued uncompensated use of

a derivative work when the owner of the

derivative work has no grant of rights in

the renewal term.

Under the decision of the court of

appeals below, petitioner must compensate

=26-

the owner of copyright in the Woolrich :

short story, which was utilized in the

preparation of “Rear Window." This is the

result Congress intended in passing the

renewal provisions of the 1909 Act. The

very reason for a two-term system of

estate in the renewal term for the benefit

of the original author or the statutory

renewal claimants.

Purchasers of contingent interests in

the renewal term well understood, on the

basis of Fisher v. Witmark, that they were

purchasing only an expectancy, and the

inchoate nature of the rights affected the

money authors could obtain by assigning

their renewal expectancies.

Valid renewal creates a new estate on

behalf of the proper statutory renewal

claimant. It is clear under section 7 of

the 1909 Act that the separate copyright in

a derivative work has no effect on the

-25-

snes

force or validity of any subsisting

subsequent work is derived. The statute

very clearly provided that the copyright in

the derivative work ("compilation,"

“adaptations,” "dramatizations," etc.)

“shall not ... be construed to imply an

exclusive right to such use of the original

works, or to secure or extend copyright in

such original works." The effect of the

Second Circuit's erroneous decision in the

Rohauer case is to accord an exclusive

right to use an original work in its

adapted form to the owner of copyright in

the adapted work, which is contrary to

section 7 of the 1909 Act.

If there were any doubt on this point,

Congress made crystal clear its intention

in the 1976 Act: in adding the 19 year

term of copyright and subjecting it to

termination, Congress allowed continued use

of derivative works under the terms of the

-26-

terminated license, but only for the 19

year added period. Based on the Fisher v.

Witmark and Miller v. Daniels decisions of

the Court, the Congress was well aware

that authors could assign only contingent

interests to those making adaptations of

original works, and therefore that the

authors could command only modest compensa-

tion for the assignment of expectancies

that might never come to fruition.

Congress left undisturbed the renewal

system of copyright and adopted a different

policy regarding continued use of deriva-

tive works only for rights subject to the

new system of termination.

<27}-

CONCLUSION

For the reasons given above, the court

of appeals correctly applied the statute

and its opinion, therefore, should be

affirmed.

DOROTHY M. SCHRADER

General Counsel

United States Copyright Office

RALPH OMAN

WILLIAM F. PATRY

WILLIAM J. ROBERTS, JR.

United States Copyright Office

-28-

CERTIFICATE OF SERVICE

I hereby certify that on December 19,

1989, a copy of the foregoing amicus ctirriae

brief was mailed first class postage

prepaid to the following counsel of record:

Louis P. Petrich

Gary L. Swingle

LEOPOLD, PETRICH & SMITH

2049 Century Park East

Suite 3110

Los Angeles, CA 90067-3274 a

(213) 277-3333

(Counsel for Petitioners)

James P. Tierney

Peter J. Anderson

LAW OFFICES OF JAMES P. TIERNEY

1299 Ocean Avenue

Penthouse

Santa Monica, CA 90401

(213) 395-2214

(Counsel for Respondent)

Leu aN \o ek 4dA«

Dorothy Schrader

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.