Page:Urantia Foundation v. Maaherra.pdf/6

 The district court accurately observed that the selection of Dr. Sadler’s patient as the amanuensis for communicating the teachings eventually transcribed on the plates was indeed serendipitous. We believe the controlling issue, however, is whether, as of the time of publication, the Foundation, the copyright claimant, could trace its title back to the humans who owned the original common law copyright. We hold that it could.

Under the 1909 Copyright Act, 17 U.S.C. §§ 1, ''et. [sic] seq.'' (superseded in 1978), an unpublished work was protected by common law copyright from the moment it was created, until it was either published with proper notice, or otherwise received protection under federal copyright law. See Twin Books Corp. v. Walt Disney Co., 83 F.3d 1162, 1165 (9th Cir.1996). The Papers were therefore protected by common law copyright from the moment they were created by the members of the Contact Commission until publication of the Book. The question is whether those humans transferred that copyright to the Foundation.

Even though the precise words “assign” or “transfer” do not appear in the trust instrument, the members of the Contact Commission demonstrated their intent to transfer the common law copyright in the Papers to the Foundation both through the language of the trust instrument itself, and by delivery of the printing plates to the Foundation. The trust instrument provided that the trustees of the Foundation were “to retain absolute and unconditional control of all plates and other media for the printing and reproduction of the Urantia Book and any translation thereof….” See Burton, supra, at 219. Under the 1909 Act, a common law copyright could be as­ signed without the necessity of observing any formalities. D. Nimmer & M.B. Nimmer, Nimmer on Copyright, § 10.03[B][2], at 10-45 (1996) [hereinafter Nimmer ]. In fact, the mere possession of the printing plates by the Foundation, the purported assignee, may have been sufficient to establish an assinment as against a third party, such as Maaherra, who does not claim any superior copyright interest. Id. at 10-46. Professor Nimmer notes that “[t]his was particularly true where over a long period of time, the author and other interested parties had acquiesced in the putative assignee’s ownership.” Id. (citing, inter alia, Burton, supra). Because the intent to transfer ownership of the plates to the Foundation was clear, and the plates were delivered to the Foundation, we hold that the members of the Contact Commission also intended to transfer, and did in fact transfer, their copyright in the Papers to the Foundation. Thus, when the Foundation published the Book in 1955, the original statutory copyright in the Book automatically vested in the Foundation. See Nimmer, § 9.01[B][2] at 9-17.

That does not conclude our inquiry, however, because we are dealing here not only with the validity of the original copyright, but with the validity of the renewal.

Maaherra challenges on a number of theories, the validity of the copyright renewal certificate the Foundation obtained in 1983. The certificate stated that the Foundation was claiming renewal as the “proprietor of copyright in a work made for hire.” Maaherra first contends that the Book was not a “work made for hire” and that the renewal for that reason is invalid.

The 1983 version of the renewal provision of the 1976 Copyright Act, applicable to the Foundation’s renewal, had two provisos: one dealing with renewals by proprietors of certain works and the other dealing with the renewals of all other works. The statute stated in relevant part: Any copyright, the first term of which is subsisting on January 1, 1978, shall endure for twenty-eight years from the date it was originally secured: Provided, that in the case of any posthumous work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author), or by an employer for whom such work is made for hire, the proprietor of such copyright shall