Page:Epoch Producing v. Killiam Shows.pdf/7

 should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury.” Boeing Co. v. Shipman, 411 F.2d 365, 374–75 (5th Cir. 1969). Tp ascertain whether this standard was properly applied by the trial court we must “examine the entire record to determine whether there were any jury questions,” Stief v. J. A. Sexauer Manufacturing Co., 380 F.2d 453, 455 (2d Cir.), ''cert. denied'', 389 U.S. 897, 88 S.Ct. 220, 19 L.Ed.2d 216 (1967); see Boeing Co. v. Shipman, supra, 411 F.2d at 374–76; O’Connor v. Pennsylvania Railroad Co., supra. This we have done.

The acquisition of initial statutory term and renewal copyrights in the United States is governed exclusively by the Copyright Act of 1909, 35 Stat. 1075 (1909), amended and enacted into law as Title 17, United States Code. Under that statute the term of protection provided for a copyrightable work is divided into two separate time periods, each 28 years in length. The right to obtain the initial 28-year term is vested in “[t]he author or proprietor of any work made the subject of copyright by [Title 17].” 17 U.S.C. § 9. As one would expect, the person claiming this initial term must either himself be the author of the copyrightable work (i. e., either the individual creator or the employer in the ease of works made for hire, 17 U.S.C. § 26) or he must have succeeded to the rights of the author through an assignment or other device. 1 M. Nimmer, Copyright § 60, at 233 (1974).

The right to the renewal term copyright is not so simply defined. The renewal term is not merely an extension of the initial-term copyright vesting in the current owner of the original term. Rather, it has been described as a “new grant,” e. g., G. Ricordi & Co. v. Paramount Pictures, Inc., 189 F.2d 469, 471 (2d Cir.), ''cert. denied'', 342 U.S. 849, 72 S.Ct. 77, 96 L.Ed. 641 (1951); see Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 63 S.Ct. 773, 87 L.Ed. 1055 (1943), which is “a separate interest distinct from the original copyright,” Edward B. Marks Music Corp. v. Charles K. Harris Music Pub. Co., Inc., 255 F.2d 518, 521 (2d Cir.), ''cert. denied'', 358 U.S. 831, 79 S.Ct. 51, 3 L.Ed.2d 69 (1958). The right of renewal is determined exclusively by 17 U.S.C. § 24, reproduced in, which provides that the renewal may be obtained by

Bearing in mind these basic principles and that the burden was on Epoch to make a prima facie showing of validity of its renewal copyright, see Houghton Mifflin Co. v. Stackpole Sons, Inc., 113 F.2d 627 (2d Cir. 1940); 2 M. Nimmer, Copyright § 141.1 (1974), we turn to an evaluation of the proof and theories put forth by Epoch.

Epoch advances several theories upon which it argues that the jury could have upheld the validity of its renewal copyright. The first of these is the ground upon which it sought and obtained the Certificate of Renewal from the Copyright Office in 1942, i. e., that the work had originally been copyrighted by it in