Page:Epoch Producing v. Killiam Shows.pdf/11

 conveyed, see Corbin, Contracts §§ 547, 549 (1960). In both assignments the interest is clearly identified as the first 28-year term only. The assignment of the unpublished work specifically describes the copyright as one “for the term of twenty-eight years.” The assignment of the published work conveyed “the copyright acquired by [DWG Corp.] by public presentation of the motion picture photoplay”; a clear reference to the initial 28-year term, since the renewal term is separate from the initial term and not acquired through publication with notice, see Fred Fisher Music Co. v. M. Witmark & Sons, supra.

Moreover, there is no specific reference in either assignment to the renewal term. This deficiency has generally been held as a matter of law, absent contrary evidence, to preclude a holding that a transfer of renewal rights was intended. “[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.” Edward B. Marks Music Corp. v. Charles K. Harris Music Pub. Co., supra, 255 F.2d at 521; see, e. g., G. Ricordi & Co. v. Paramount Pictures, Inc., supra, 189 F.2d at 471. Epoch points to no evidence of a different intention in the present case.

While Epoch correctly observes that the assignment here is from a corporation and not from an individual author, we do not think that difference is critical here, where the corporation was controlled by the author. The policy behind the rule of construction restricting an assignment to the original term unless it refers to renewal rights is to protect authors from inadvertent transfers of renewal rights. That policy, it is true, might not govern a transfer from a corporation unrelated to the author, see Rohauer v. Friedman, 306 F.2d 933, 935–36 (9th Cir. 1962). Here, however, DWG Corp. was in effect the author’s alter ego. Epoch adduced no proof that DWG Corp. had any independent right (i. e., as purchaser for value or as employer for hire) to obtain the film copyrights. Thus DWG Corp. could only have obtained the copyright as the nominee or instrumentality of Griffith himself through assignment by Griffith of his common law copyright to the corporation, which need not have been in writing, cf. Dave Grossman Designs, Inc. v. Bortin, 347 F.Supp. 1150, 1154 (N.D.Ill.1972). The policy behind the rule of construction that favors the author’s retention of renewal rights, therefore, is served by application of the rule in such a situation. The transfer from the DWG Corp. is analogous to a transfer from the individual author and the assignments should be construed in accordance with the rule of Marks Music Corp. Since there is no other proof of an intention to transfer renewal rights, the assignments must be limited in their effect to the original term copyright.

Finally, amici curiae argue that Epoch’s renewal copyright could have been upheld by the jury under the proviso of § 24 of the Copyright Act which gives to the original term copyright proprietor the right to the renewal copyright “of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author).” Starting with the undisputed fact that The Birth was copyrighted by a corporate body, DWG Corp., the contention is that