Page:Copyright Office Compendium 3rd Edition - Full.djvu/1019

, Third Edition • Posthumous works. This exception as set forth in the Copyright Act of 1909 allows the proprietor to claim the renewal copyright when a work was first published after the death of the author.

NOTE: For a proprietary author to be entitled to claim the renewal rights in a work published after an author's death, other factors should be taken into consideration. See Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941, 946 (2d Cir. 1975] (concluding that a concerto was not a posthumous work considering the fact that the author completed the concerto, heard it performed, executed a contract for its copyright, corrected published proofs, distributed orchestra parts, and the general public heard the concerto in concert and on the radio]. For renewal registration purposes, a work is not considered posthumous unless it was unpublished when the author died and the author did not assign the copyright or exploit any rights in the work during his or her lifetime. The Office will require these facts to be established before registering a renewal claim on the statutory basis of being a posthumous work.

Exception: If the work was unpublished when the author died and the author did not assign the copyright but did exploit some of the rights through contracts, it is unclear whether the work is posthumous or not. Depending on circumstances, the Office may register a renewal claim on the basis of the work being a personal or a posthumous work, or register separate claims on each basis, or refuse renewal registration, or register under the rule of doubt.

• Works copyrighted by a corporate body other than as an assignee or licensee. This exception has little meaning within the scope of renewal registration because nearly all proprietary works to which it could apply more clearly qualify under one of the other exceptions. Examples of types of works to which this exception may apply:

• A work to which stockholders of a corporation contributed indistinguishable parts.

• A work written by officials or stockholders in a corporation when it was written directly for the corporation but not as a work made for hire.

• A work written or created by members of a religious order or similar organization, when the individual authors never had a personal properly right in the work.

• A motion picture when it is asserted that it was produced under special circumstances and was not copyrighted by an employer for whom the work was made for hire.

Types of works to which this exception cannot apply:

• The original copyright proprietor was not a corporation.

• The individual author of an unpublished work transferred the common law literary property or the right to secure copyright to a corporation.

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