Page:Shapiro, Bernstein v. Bryan (123 F.2d 697).pdf/4

 kin or executors. The limitation which the second proviso imposes upon the author’s power to dispose of the right of renewal during his life was so clearly intended to protect widows and children from the supposed improvidence of authors in the colloquial sense, that we need not hesitate to hold that in § 23 the first proviso overrides the second even if the definition in § 62 must be incorporated. How we should have to decide the effect of that definition upon § 24, 17 U.S.C.A. § 24, if the proprietor did not survive the copyright, we need not say; in Tobani v. Carl Fischer, Inc., 2 Cir., 98 F.2d 57, we did not observe the curious possibility we have just mentioned and it does not appear from the report whether the employer, Carl Fischer, had died.

But all this is really irrelevant because, regardless of § 62, the turning point is whether the song, composed as it was while Bryan and Fisher were employed, under the contracts we have described, was a “work made for hire.” They argue that that phrase does not include works of which employees are the real authors, but only those to which they make some ancillary contribution to the “employer” who is the chief author. It is of course true that since the right of renewal is quite separate from the original copyright, circumstances which might be enough to imply its transfer—e. g. working for wages—might not be enough to imply a transfer of the right of renewal. We assume arguendo for instance that the assignee of the literary property in an unpublished work, who later takes out the copyright, like the assignee of the copyright itself, does not get the right of renewal; it might have been reasonable therefore to save out of the transfer by contract of employment cases where the employee was the real author, as here. But not only do the words suggest no such distinction, but the kind of contribution by the employee to which the phrase would then be limited, would not support the issue of an original copyright to the employee; he would not be an “author,” at most he would be a “co-author.” The simple meaning of the words is that when the employer has become the proprietor of the original copyright because it was made by an employee “for hire,” the right of renewal goes with it, unlike an assignment. It is idle to try to speculate why Congress should have so provided in order to create out of whole cloth an exception of which there is not the slightest intimation in the statute. The “work” intended is clearly any “work” which, but for the employment, the employee could have himself copyrighted; not a work in which his rights would have given him only a joint interest in the copyright. The defendants do not suggest that any court has taken or even intimated any acceptance of their view; it seems to us the merest invention, fabricated in the teeth of the statute.

Judgment affirmed.