Page:Edward B. Marks Music v. Charles K. Harris Music Publishing.pdf/4

 June 6, 1933, and each was duly recorded within the statutory period provided in 17 U.S.C. § 30.

In 1936, Howard executed seventeen separate assignments of the renewal rights to the songs in issue to defendant’s predecessor which subsequently were recorded. But these are of no help to defendant unless the instrument executed by Howard in 1916 conveyed to Harris the renewal rights, for, prior to the 1936 assignments, plaintiff had recorded the valid agreement assigning to it the renewal rights to the songs, as we have just stated.

The cases are clear that a copyright renewal creates a separate interest distinct from the original copyright and that a general transfer by an author of the original copyright without mention of renewal rights conveys no interest in the renewal rights without proof of a contrary intention. G. Ricordi & Co. v. Paramount Pictures, Inc., 2 Cir., 189 F.2d 469, certiorari denied 342 U.S. 849, 72 S.Ct. 77, 96 L.Ed. 641; Rossiter v. Vogel, 2 Cir., 134 F.2d 908. Here we have a general transfer to defendant’s predecessor which makes no mention of renewal rights. But to show that Howard intended to include the renewal rights in the grant, defendant produced the deposition of Isabelle B. Monroe, who was Harris’ secretary in 1916. She testified that after Howard had signed the conveyance, and in his presence, Harris stated that “all the property was ours and all the renewals became part of our catalogue.” The district court rejected this deposition as determinative of Howard’s intent to include the renewal rights, and we agree. It is surely tenuous at best to conclude that Howard really intended to strip himself of his separate interest in the renewals by merely saying nothing (if he heard) in response to Harris’ somewhat ambiguous self-supporting statement. Actually the deposition was taken 39 years after the alleged conversation, and it is quite inconceivable that the witness remembered in detail all the relevant circumstances surrounding the event. Moreover, it is quite probable that the whole purpose of the 1916 conveyance was to extinguish Harris’ liability to pay royalties to Howard pursuant to prior contracts between the principals. This is supported by one part of the conveyance which provided that Howard released Harris “from payment of royalties or otherwise by reason of any contract or understanding had between the parties concerning said musical compositions.” At best, then, we have a situation where the conveyance is silent as to renewal copyrights; and the extrinsic evidence concerning intent is ambiguous. This is insufficient to support defendant’s claim.

On the other hand, plaintiff’s claim of ownership is based on an unambiguous agreement with Howard which clearly conveyed to it all renewal copyrights in the songs at issue and which provided that Howard would execute all necessary renewals for plaintiff’s benefit. Defendant’s objections to the validity of this agreement are not well taken. Most of them erroneously presume that the 1916 instrument effectively conveyed renewal rights to Charles K. Harris and that the plaintiff’s alleged failure to comply with 17 U.S.C. § 30 stripped it of any rights as a bona fide purchaser for value. But as we have shown, the 1916 conveyance gave defendant no interest in the renewal rights; and hence its claim of ownership must be based on the seventeen separate assignments executed by Howard in 1936. Under this analysis it is evident that plaintiff’s failure to record the 1933 agreement within three months of its execution vests no rights in defendant. For defendant to prevail under § 30 it had to be a subsequent purchaser without notice, and admittedly in 1936 it had notice of plaintiff’s interest. Conversely, it matters little that in 1933 plaintiff might have had notice of defendant’s claim, for this could have been notice only of an invalid claim. Finally, defendant says that plaintiff was not a purchaser for a valuable consideration, because the 1933 agreement provided for royalties, including an advance of $200. Although a promise to pay royalties in