Page:Epoch Producing v. Killiam Shows.pdf/5

 The copyrights for both the published and unpublished works were assigned by the DWG Corp. to Epoch and to Thomas Dixon by two instruments dated April 17, 1915. The assignment of the copyright in the unpublished work, filed with the Copyright Office on May 15, 1915, was signed by David W. Griffith as president of DWG Corp. It assigned “all its right, title, and interest” in DWG Corp.’s copyright in the film, which was described as a copyright “for the term of twenty-eight years.” The assignment of the copyright in the published work, filed with the Copyright Office on February 25, 1916, was signed by Albert H. T. Banzhaf as treasurer of DWG Corp. It conveyed all of DWG Corp.’s interest in “the copyright acquired by it by public presentation of the motion picture photoplay” with notice of copyright and authorized the assignees to apply for a Certificate of Copyright Registration.

Epoch and Dixon applied for registration of the copyright in the published work on October 1, 1915. A Certificate of Copyright was duly issued in their names, which recites that the film was produced under the direction of David W. Griffith, based on Thomas Dixon’s novel, with scenario by D. W. Griffith and Frank E. Woods. The term of this statutory copyright was 28 years from February 8, 1915.

The foregoing evidence of D. W. Griffith’s creation of The Birth was corroborated by testimony of two witnesses who were present at the making of The Birth. Lillian Gish and Joseph Henaberry, who played roles in the picture, testified to Griffith’s having been in charge of direction and production. Although Dixon was the author of the book upon which The Birth was based, there was no evidence that anyone other than Griffith and Woods wrote the screen photoplay or that anyone other than Griffith produced the motion picture.

On June 22, 1942, Epoch applied to the Copyright Office for a renewal copyright in The Birth, describing itself as both the “author,” original claimant, and “the proprietor of copyright in a work made for hire.” The term “author” is defined in the Copyright Act to include, “an employer in the case of works made for hire,” 17 U.S.C. § 26. D. W. Griffith was listed as the director of the film and, along with Frank E. Woods, as author of the scenario. Thus Griffith was represented to be the employee who made the work for hire and Epoch as the “author,” or his employer. A renewal certificate was issued by the Copyright Office in the name of Epoch as “the proprietor in a work made for hire.” No other person or entity has ever applied for or received a renewal copyright in the film.

In support of its characterization of the film as a “work made for hire,” Epoch introduced into evidence at trial several agreements involving the proposed production of a film based on Thomas Dixon’s novel. The earliest of these agreements, dated December 20, 1913, which was before The Birth was made or first publicly exhibited, was between Dixon and Majestic Motion Picture Company. It granted to Majestic the “sole and exclusive right” to produce, license and exhibit a motion picture based upon Dixon’s novel “The Clansman” and upon a dramatic version of the novel written by Dixon. The film was to be completed by July 1, 1914. Majestic was apparently unable to meet its obligations under this contract as a later agreement was entered into by Majestic and Dixon, dated June 9, 1914, extending the date for completion of the film to October 1, 1914, and changing the financial