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,
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,
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:
Thereafter, the House Committee reporting out the 1909 Act called for one 28 year renewal, and in connection therewith had the following to say:
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):
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, § 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;
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
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 protect itself, rather than as an illogical discrimination between families who are in equal need of protection.
Given this legislative purpose we do not feel compelled to define the term "posthumous," as did Judge Owen, by correlating it to one particular definition of the word "publish," a term which itself has a variety of definitions in the Copyright Act depending upon the context.
Judge Owen also relied on the form provided by the Register of Copyrights (Circular 1B) which defines "posthumous" as a "work first published and copyrighted after the death of the author." And yet the Copyright Office has no authority to give opinions or define legal terms
Appellees rely heavily on the phrase in the statute here italicized, "of any posthumous work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof...." The argument is that this phrase implies that the date for determining what is posthumous is the date of copyright. Even assuming, however, that the italicized phrase modifies both posthumous works and periodicals, it is not useful in defining what is posthumous. Its use is only to define the time from which a renewal term dates since without a fixed point in time for the first copyright there could be no fixed renewal period. No one would argue that the date of copyright and publication is used to define a "periodical, cyclopedic, or other composite" work. Likewise the phrase has no definitional value for a "posthumous work." Words undefined in a statute must be construed to further, rather than frustrate, the legislative intent or purpose. Commissioner of Internal Revenue v. Brown, 380 U.S. 563, 571-72, 85 S.Ct. 1162, 14 L.Ed.2d 75 (1965); Knapp v. McFarland, 462 F.2d 935, 939-40 (2d Cir. 1972); Salt River Project Agricultural Improvement and Power District v. FPC, 129 U.S.App.D.C. 117, 391 F.2d 470, 474, cert. denied sub nom. Arkansas Valley G & T, Inc. v. FPC, 393 U.S. 857, 89 S.Ct. 104, 21 L.Ed.2d 126 (1968). As the master of statutory interpretation once put it,
All parties rely on the dictum by Judge Learned Hand in Shapiro, Bernstein & Co. v. Bryan, 123 F.2d 697, 699 (2d Cir. 1941), discussing the proprietor exceptions in what is now § 24 of the Copyright Act by saying,
The dictum has its own ambiguity. We sense Judge Hand to have been thinking of "passed" in the usual sense of transfer by inheritance or intestacy, but not of transfer by contract. But even if we are wrong we cannot place too much emphasis on an ambiguous word in a mention en passant, not vital to the decision, even by the master. Since an initial assignment of a copyright renewal term by the author can vest in the publisher only if the author remains alive at the time of renewal, see 2 M. Nimmer, supra § 117.3, at 503, and cases cited therein, we do not see that an assignment of the renewal term should here vest solely because the war delayed the printing of the score.
Finally, the rationale for the exception for posthumous works, if defined as works the right to copyright which has passed by will or intestacy, is more analogous to the rationale for the other exceptions
Most of the arguments made in the dissent are answered in the course of the foregoing opinion. The dissent's quarrel with our "philosophy" is evidently a quarrel with the House Committee report on the 1909 Act quoted in our opinion (and in 2 M. Nimmer, supra App. I, at 967-77) and with the underlying rationale of the renewal concept as set forth in 2 M. Nimmer, supra § 113, at 462, also quoted above. The suggestion made that somehow this decision will result in voiding copyright renewals made by assignees at the expense of the author's family is based on the overly broad and gratuitous assertion in a district court opinion, Von Tilzer v. Jerry Vogel Music Co., 53 F.Supp. 191, 196 (S.D.N.Y.1943), aff'd sub nom. Gumm v. Jerry Vogel Music Co., 158 F.2d 516 (2d Cir. 1946); the actual source of the assertion is the inapposite context of Tobani v. Carl Fischer, Inc., 98 F.2d 57, 60 (2d Cir.), cert. denied, 305 U.S. 650, 59 S.Ct. 243, 83 L.Ed. 420 (1938), which denied to those who fail to renew a copyright the right to sue for the conveyance of void copyright renewal registrations of others.
Mindful of the dissent's warnings, however, we rely on the well-established doctrine that the copyright title procured may be held in trust for the benefit of the persons who are rightfully entitled thereto. Harms v. Stern, 229 F. 42, 46 (2d Cir. 1915), vacated on rehearing on other grounds, 231 F. 645 (2d Cir. 1916). See Silverman v. Sunrise Pictures Corp., 273 F. 909, 914 (2d Cir. 1921), cert. denied, 262 U.S. 758, 43 S.Ct. 705, 67 L.Ed. 1219 (1923) (title held in trust by sisters for class of next of kin); Maurel v. Smith, 271 F. 211, 215 (2d Cir. 1921) (title held in trust for joint author as joint owner); Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 49 F.Supp. 135 (S.D.N.Y.1943), aff'd, 140 F.2d 270 (2d Cir. 1944). To avoid any possibility of invalidation of renewal copyrights previously made by proprietors in the limited class of those in Boosey's position here upon reliance on the Copyright Office's Circular No. 15, the effect of this decision shall be prospective only. That is, our decision will apply only to future and pending renewals, as well as to the parties here, and will not operate to void the legal title to renewal copyrights held by those proprietors in Boosey's class. Instead, the author's
For the above reasons the judgment is reversed.
VAN GRAAFEILAND, Circuit Judge (dissenting):
As one whose musical accomplishments go barely beyond a mastery of "Chopsticks", I take up the cudgels for appellees with some diffidence. However, since I believe that this case is being wrongly decided, I must respectfully express my dissent.
To place the opinion of my brothers in proper perspective, one should bear in mind that the contest herein is not between the penurious family of a deceased composer and an "unscrupulous" publisher; it is between a son and his mother. Bela Bartok, as a loving and thoughtful husband, executed a will in which he left the royalties from all copyrights and renewal copyrights in trust for his widow with the remainder, upon her death, to his son Peter, the appellant herein. Apparently, appellant is unwilling to wait for his remainder to accrue.
He asks this Court to declare that appellee publisher has no right to renew the copyright of his father's works and to continue to pay all royalties following such renewal to his mother. Instead, he claims the right of renewal with his mother and brother, with the result that Bela Bartok's widow, to whom the composer left all the royalties during her lifetime, will end up getting only one-third of them, the remaining two-thirds going to appellant and his brother. I believe that the injustice to Mr. Bartok's widow which results from the majority's frustration of Mr. Bartok's wishes is neither required nor justified by the Copyright Law.
The provisions governing copyright renewal are contained in § 24 of the Copyright Law (17 U.S.C. § 24). This provides in pertinent part:
Judge Owen found that the word "posthumous" as used in the field of music for over a century has a specific meaning, i. e., "published after the death of its author". My colleagues do not hold this finding to be erroneous, as indeed they could not. My limited facilities for research completely substantiate it and indicate further that the same finding could be made in the field of literature. The following references are illustrative:
Having established the existence of a commonly accepted and well established meaning for the term "posthumous works", Judge Owen then applied an equally accepted and established rule of statutory interpretation, viz., "The popular or accepted import of words furnishes the general rule for the interpretation of statutes." Shaw v. Dreyfus, 172 F.2d 140, 142 (2d Cir.), cert. denied, 337 U.S. 907, 69 S.Ct. 1048, 93 L.Ed. 1719 (1949); Banks v. Chicago Grain Trimmers, 390 U.S. 459, 465, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1967); United States v. Peller, 170 F.2d 1006, 1007 (2d Cir. 1948).
In United States v. Blasius, 397 F.2d 203 (2d Cir.), cert. dismissed, 393 U.S. 1008, 89 S.Ct. 615, 21 L.Ed.2d 557 (1968), we said:
My brothers, nonetheless, rely heavily on certain congressional dialogue which they quote at some length. This discussion concerned a debate then taking place before the 1908 Joint Congressional Committee on whether the proposed new law should provide for a long non-renewable copyright term or a shorter renewable one. See Arguments before the Committee on Patents of the Senate and House of Representatives Conjointly on the Pending Bills to Amend and Consolidate the Acts Respecting Copyright (1906-8). The Congress opted for the latter. At the same time, it specified four situations in which the ordinary rules of renewal would not apply — posthumous
From the outset of the Joint Committee's deliberations, it was obvious that these four exceptions were to be given different treatment than ordinary works of copyright insofar as the copyright term was concerned. However, I find nothing in the language which the majority quotes, or anywhere else in the reports of the Joint Committee's hearings, which indicates that the term "posthumous works" was to be given a meaning different from that which it had had for hundreds of years, viz., works published after the death of the author.
I cannot believe that Judge Hand was unfamiliar with this traditional and commonly accepted definition when he wrote his opinion in Shapiro, Bernstein & Co. v. Bryan, 123 F.2d 697 (2d Cir. 1941). His description of "posthumous works" as "those on which the original copyright has been taken out by someone to whom the literary property passed before publication" was, therefore, in my opinion, simply a reiteration of the same definition.
Judge Hand discussed posthumous works in the same breath as composite works and works copyrighted by an employer, for whom such works were made for hire, and said that these cover "those cases in which the `proprietor' of the copyright . . . is not the author of the work". It seems rather obvious that he was discussing proprietorships which came into being during the author's lifetime. This accords with the language of § 9 (17 U.S.C. § 9) which provides in part:
In short, I agree with the commentator in 29 S.Cal.L.Rev. 23, 39, supra, who said, ". . . there is nothing in the statute, Committee Report or any judicial opinion which would indicate that the term posthumous works was intended to have anything but its ordinary and usual meaning."
Finally, and most significantly, the United States Copyright Office itself has adopted and used the same definition as the above cited authorities. If we examine the records of that office, we see that in Circular No. 15 (1953) "posthumous works" are defined as "works published and copyrighted after the death of the author".
Of course, my brothers are correct in stating that the interpretation of the Copyright Office should not be given "controlling weight". Yet, before the guidelines of the Copyright Office are swept aside, some thought should be given as to what is being swept with them. One wonders, for example, how many widows and children are depending upon royalties from copyright renewals filed in accordance with the existing guidelines. "A renewal of a copyright by a person not entitled thereto is void and cannot be cured by subsequent ratification
One wonders, also, how many widows like Mrs. Bartok, will be deprived of the full benefit of their husband's testate bounty because this Court is now changing the long-standing rules of the Copyright Office upon which the will was predicated.
The affidavits submitted below establish, to my satisfaction at least, that there was no publication of Bela Bartok's Concerto prior to his death. The intimation in the majority opinion that the playing of the Concerto in concert might have constituted a publication is completely without support in the law. A public performance of a musical composition is not a publication or an abandonment of the composition to the public. Ferris v. Frohman, 223 U.S. 424, 435, 32 S.Ct. 263, 56 L.Ed. 492 (1912); Nutt v. National Institute, 31 F.2d 236, 238 (2d Cir. 1929); Rosette v. Rainbo Record Manufacturing Corp., 354 F.Supp. 1183 (S.D.N.Y.1973); McCarthy and Fischer, Inc. v. White, 259 F. 364 (S.D.N.Y. 1919); 1 Nimmer, The Law of Copyright, § 53.1, at 208 (1975); Goldstein, Copyrighting the New Music 10 (Ascap Copyright Law Symposium, Number Sixteen, 1966). The original Certificate of Registration gives the date of publication as March 20, 1946, six months after the composer's death. This is prima facie proof of the facts. Gerlach-Barklow Co. v. Morris & Bendien, 23 F.2d 159 (2d Cir. 1927); Freudenthal v. Hebrew Publishing Co., 44 F.Supp. 754 (S.D.N.Y. 1942). This proof has not been rebutted.
In the final analysis, my objection to what this Court does today can best be summarized by the following admonition of Mr. Justice Frankfurter in Addison v. Holly Hill Co., 322 U.S. 607, 618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488 (1944):
My brothers are creating a definition of "posthumous works" which appears nowhere in the legislation or the legislative history; which is completely at odds with long-standing and accepted usage; which is contrary to the definition accepted by the Copyright Office and most authorities in the copyright field; and which is not unanimously recommended by those who seek change.
I have no quarrel with my brothers' good intentions but question the philosophy which underlies them. I am not convinced, for example, that the distraught
Of course, a widow can wait for twenty-eight years before assigning her right to renew. But will she? She, like her deceased husband, must put groceries on the table today. Insofar as the composer is concerned, the decision of my brothers reduces the value of what he has to sell at the time when he probably is most in need.
I see no compelling reasons why the resolution of these differences cannot await the considered judgment of the Congress which has been working on a revision of the 1909 Copyright Act for a number of years. Justice would then be accorded to Mrs. Bartok, and her husband's wishes would be fulfilled. In short, if I may again quote Mr. Justice Frankfurter, this time from his opinion in Fisher Co. v. Witmark & Sons, 318 U.S. 643, 657, 63 S.Ct. 773, 779, 87 L.Ed. 1055 (1943):
I believe Judge Owen's decision was correct, and I would affirm.
As Judge Frank stated in a footnote, 239 F.2d at 742 n.2:
The opinion goes on to state
Id. at 743.
2 M. Nimmer, supra § 114.1, at 464-65. Needless to say, we do not subscribe to the views on publication of musical works expressed in the dissenting opinion, an issue we need not reach.
True, both the Chopin work and the Bartok work had been performed in their respective authors' lifetimes. The Chopin Rondo was composed 21 years prior to Chopin's death and was played by him soon afterward, but the manuscript was thereafter laid aside by Chopin for reasons not known. It was not given to any publisher. No arrangement for publication of the work was made by Chopin in his life, and the manuscript and associated copyright of the Rondo remained Chopin's property until his death. The manuscript was later found among those of numerous other published works by a friend named Julian Fontana, who arranged the publication of these works in cooperation with Chopin's family in 1855, six years after the composer's death.
As for the emphasis in note 2 of the dissent upon the practice of numbering compositions according to the date of publication, we do not consider this system, artificially devised by publishers themselves, to be objective or relevant in determining the intended policy of § 24 of the Copyright Act. Nor do we believe that a publisher's designation of "op. posth." can be relied upon as the last word in the characterization of a composition. Paradoxically, Bartok's Concerto for Orchestra itself, which the dissent would make "posthumous," was not designated as an "op. posth." by its publisher.
Finally, the dissent's reference to the 21-year delay in the publication of Chopin's Variations for the Piano on a German Air could very well be a prime example of the danger of Copyright Act abuse by a publisher purposely delaying publication to secure renewal rights to which an author's family would otherwise be entitled.
In addition the Circular 1B states:
The dissent refers throughout to "widows" and pictures the "distraught widow" negotiating with the publisher for the sale and assignment of renewal rights. Most authors or composers, we should suppose, like other testators, rely on others to act on their family's behalf; Congress, when it contemplated exercise of renewal rights by an author's family in the case of an assignment in which the author does not live to the end of the original term, evidently was not concerned about any undue disadvantage of a "distraught widow." We do not think it was so concerned in its definition of what is a posthumous work. Similarly, the argument that the decision reduces the value of what the composer has to sell when he is most in need is belied by the way Congress deals with renewal rights where the author does not live out the original term. Nimmer agrees with us that the construction we give the statute "would better seem to protect the interests of those for whom the author wishes to provide upon his death." 2 M. Nimmer, supra § 114.1, at 464.
Whatever may be the situation regarding Chopin's Rondo discussed in n. 7 of the majority opinion, the fact remains that some of Chopin's posthumous works were in the hands of publishers prior to his death. Bidou points out that Chopin's "Variations for the Piano on a German Air", published by Haslinger in 1851, two years after Chopin's death, had been in Haslinger's possession since 1830. In any event, the classification of a work as posthumous was determined in each instance by the date of publication.
My brothers also state that their decision shall be prospective only and shall not apply to those who, up to this date, have relied upon the copyright office's long-standing interpretation of "posthumous work". Putting aside any argument as to the concession concerning long standing and accepted usage which may be implicit in such holding, I would only point out that the holding will be of little comfort to Mrs. Bartok whose case we are presently deciding.
No one has expressed any dissatisfaction with this monetary arrangement.
Curtis, Protecting Authors in Copyright Transfers: Revision Bill § 203 and the Alternatives 194 (Ascap Copyright Law Symposium, Number twenty-one, 1971).