Page:Shapiro, Bernstein v. Bryan (123 F.2d 697).pdf/3

 included it among other songs as already published. It is not reasonable to believe that they should have treated it as falling within their contracts, both on entering and on leaving Shapiro’s employ if they had composed it beforehand; and this is further confirmed because in every case in which Shapiro copyrighted a song of theirs which did not fall within the contracts, he got a separate assignment from them. Indeed that was Bryan’s general practice with publishers. Against these admissions and the oral testimony of the plaintiff’s witnesses, the judge was free to discredit the testimony of Bryan and Fisher as to events more than thirty years before, especially since the attempted corroboration of that testimony proved most unconvincing.

The case therefore turned upon the effect of the contracts. Bryan’s provides that he “does engage his exclusive services to and hereby enters the employ of, the said Shapiro * * * to use his best skill and effort in the composition of popular songs.” He will “deliver the manuscript” to Shapiro, “write verses and choruses to suit any title that * * * Shapiro may suggest,” change manuscripts, collaborate in composing, popularize songs and advance his own songs “as well as all other lyrics published by the said Shapiro.” All songs composed by him are to be Shapiro’s and he will compose for no other publisher, or render services of any kind to any other publisher, nor will he let his name be published as author of any song “not now published” save of those excepted. For all these “services” he is to be paid in royalties upon any sales of his compositions by Shapiro, but is in any event to receive an advance of $35 a week, which shall be charged against the royalties, if any. Fisher’s contract was differently worded but not different in substance. He agrees “to enter into the employ of the said Shapiro * * * generally as a song writer * * * during which term” (a year) he will “render his services exclusively to * * * Shapiro * * * and * * * deliver * * * all * * * musical compositions which he may write or compose * * * in whole or in part, all of which shall immediately when composed be the property of the said Shapiro.” He agrees to deliver “at least twenty four (24) complete songs” in the year for Shapiro and to compose for no one else, and not to let his name appear elsewhere as a composer. To the extent of three songs a month, he agrees to write words for any music, or to write music for any words. Shapiro agrees to “employ” him and pay him in royalties guaranteed to be $3,000, payable $50 a week in advance, which, like Bryan’s “hire,” is to be charged against the royalties, if any.

Section 23 starts by fixing the duration of the original copyright, and then grants the right of renewal in two provisos. The first of these covers those cases in which the “proprietor” of the copyright (obviously there must always have been an original copyright) is not the author of the work, and it is divided into four classes. The first class provides for “posthumous” works, i. e. those on which the original copyright has been taken out by someone to whom the literary property passed before publication. The second provides for “composite works,” by which we understand those to which a number of authors have contributed distinguishable parts, which they have not however “separately registered,” a situation at that time provided for by the second proviso though now changed—but which they have allowed a “proprietor” to include in one copyright. The third class is not entirely plain and it is not indeed necessary for us to define its scope. Coupled as it is with the fourth—which alone is here important—it may include “works” which are composed by persons who may be related to a corporation neither as employees “for hire,” nor as assignors or licensors. (Members of a corporation producing a common “work” by mutual contributions, fused so as to be indistinguishable, may conceivably be one example.) The first proviso merely provides exceptions to the second, which grants the right of renewal in all other cases to the “author” in the colloquial sense provided he survives the copyright; otherwise to his widow, children, next of kin or executors.

The defendants seem to suppose that the definition of “author” in § 62, 17 U.S.C.A. § 62, which declares that it “shall include an employer in the case of works made for hire” has some importance in construing § 23. We cannot see that it has. Certainly it can have none in the first proviso because the word does not appear in it. If we suppose that it defines “author” in the second proviso, it adds nothing to what has been already provided for in the fourth class of the first proviso, except the absurd possibility that if the work is “done for hire,” the proprietor who then has the right of renewal must survive the copyright, or it will pass to his widow, children, next of