Page:Epoch Producing v. Killiam Shows.pdf/9

 that is as consistent with such a relationship as it is with numerous other hypotheses, cannot be bootstrapped to remedy the basic deficiency which is the absence of any proof that Griffith was in fact hired by Majestic or Epoch to make the film. Cf. Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 339–42, 53 S.Ct. 391, 77 L.Ed. 819 (1933).

The contention that Griffith may have been an employee for hire of Epoch is further belied by the fact that Epoch did not come into existence until February 8, 1915, which was after The Birth had been produced by Griffith. Indeed, February 8, 1915, was the very day on which the film was first publicly exhibited at Clune’s Auditorium. These undisputed facts directly contradict Epoch’s representations in its application for renewal copyright in 1942 that it was the “author” (i. e., employer for whom the work made for hire) of the film.

Any contention that DWG Corp., the only other possibility, was the employer of Griffith must be discarded for similar reasons. Evidence produced at trial by defendant Killiam, and uncontradicted by plaintiff, conclusively proved that DWG Corp. was essentially an inactive shell corporation in 1914 and 1915, the years during which the film was created. Its financial records for those years, including its federal income tax returns, show no expenditures for the production of any motion pictures. It engaged in no business at all in 1914 and obtained some slight income in 1915, mostly from motion picture rentals. Under these circumstances it could not have been an employer for whom the film was made for hire.

Having failed to point to evidence on the record from which a jury could reasonably conclude that The Birth was made by D. W. Griffith in the employment of another party, Epoch argues, pursuant to 17 U.S.C. § 209, that the Certificate of Copyright Renewal that it obtained in 1942 was prima facie proof of the facts stated therein and of the validity of the renewal copyright. Further, it contends that the passage of time without challenge to the renewal adds significant support to its validity. Both of these contentions must be rejected.

Title 17 U.S.C. § 209 does create a presumption of validity with respect to a certificate of initial copyright registration, stating that it “shall be admitted in any court as prima facie evidence of the facts stated therein.” It is clear from the construction of § 209, however, that the presumption was meant to attach only to original certificates. All of § 209 is concerned with the contents of the original certificate of registration, the information that must be supplied by the original claimant and various other mechanics of the original registration procedure. No reference at all is made to the requirements of renewal applications and certificates. In this context the reference to “[s]aid certificate” in regard to the presumption can only refer to the original registration certificate.

Additionally, the minimal verification of the information supplied in connection with an application for an original copyright certificate is wholly absent in the case of a renewal application. The Copyright Office directs in its regulations that the application for original registration accurately reflect “the facts existing at the time of first publication.” 37 C.F.R. § 202.3(b)(3). No such admonition is applied to applications for renewal copyright. Indeed, the Copyright Office will accept and register more than one claim to the renewal copyright in a particular work, even if the claims are in obvious conflict. B. Ringer, Renewal of Copyright, in Report of the Register of Copyrights on the Revision of the U. S. Copyright Law, Study No. 31, at 107, 184 (1960) (hereinafter cited as “Ringer”). The Office will point out the conflict to the later applicant and request confirmation of the later claim, but does not view its function as making “judicial determinations of