Page:Epoch Producing v. Killiam Shows.pdf/12

 it must have been an employer for hire and that Epoch, as its assignee, falls within the proviso.

This argument fails for several reasons. First, the assumption that D. W. Griffith made the film as an employee for hire is, as we have demonstrated, unsupported by any evidence. Epoch wholly failed to carry its burden of proving that D. W. Griffith was an employee for hire of DWG Corp. or anyone else. The evidence, on the contrary, demonstrated that he was the individual author of the film and that DWG Corp. could only have copyrighted the work as the licensee or assignee of his common law copyright, cf. Dave Grossman Designs, Inc. v. Bortin, supra, 347 F.Supp. at 1154. The clause cannot apply in these circumstances. Donaldson Publishing Co. v. Bergman, Vocco & Conn, Inc., supra, 375 F.2d at 643.

Furthermore, what authoritative commentary exists concerning the “corporate body” provision of § 24 indicates that it has no application to works of this type which are authored and produced by one identifiable person either as an employee for hire or as an independent author. See Ringer, supra, at 136–37. For instance, Judge Learned Hand in dictum interpreted the clause as applying only to works composed by persons related to a corporation, but not as employees for hire, assignors or licensors. Shapiro, Bernstein & Co. v. Bryan, 123 F.2d 697, 699 (2d Cir. 1941). The only other interpretation of note would apply the clause only to works of an impersonal nature composed by a staff or others whose individual work is merged into the whole and incapable of separate identification. Ringer, supra, at 136.

In sum there was insufficient evidence introduced at trial from which the jury could reasonably find Epoch’s renewal copyright valid under any of the theories advanced below and on this appeal. As Epoch was unable to produce even a prima facie case supporting the validity of its renewal copyright at trial, we hold that the district court should have granted Killiam’s motion for a directed verdict. Our holding makes it unnecessary to resolve the many other issues raised by the parties, including (1) the contention that a renewal copyright may not be sought by the proprietor of an original copyright in a work made for hire unless the copyright was first obtained by the employer (as distinguished from an assignee), and (2) the errors claimed to have been committed by the trial judge in his instructions to the jury, in his exclusion of evidence bearing on the authorship of The Birth, in the special verdict questions put to the jury, and in his award of damages and attorneys’ fees to Epoch.

As to Killiam’s third-party action alleging a conspiracy to breach a contractual obligation to protect and enhance its interest in the copyright, Killiam has now abandoned its claim that it ever owned an interest in The Birth. Since one suffers no loss from damage to property unless one possesses some interest in that property, Killiam suffered no damage from the alleged acts of the third-party defendants and the third-party complaint no longer states a cause of action, cf. Rich v. New York Stock Exchange, 522 F.2d 153, [sic] (2d Cir. 1975) (Feinberg, J., concurring). Its dismissal by the district court will therefore be affirmed.

The trial court erred in not directing a verdict to the effect that Epoch had failed to establish the validity of its renewal copyright and in not dismissing Epoch’s complaint. Accordingly the judgment of the district court awarding