Cite as 189 F.2d 469
atic version of the novel and of Belasco’s dramatization of it. After an extensive review of the authorities, the court concluded that it did. The appellant argues strenuously that the court erred in so construing the agreement, but we do not find it necessary to decide this question. The right which Long had to make motion pictures of the story of his copyrighted novel did not extend beyond the term of the copyright; hence, if it be assumed that he assigned to the plaintiff any moving picture rights, they were necessarily similarly limited to the term of the copyright, unless the assignment included the right of renewal. It did not; the 1901 agreement made no allusion to renewal of copyright. In Fred Fisher Music Co. v. M. Whitmark & Sons, 318 U.S. 643, 63 S.Ct. 773, 87 L.Ed. 1055, which held that an author has power to assign his right of renewal during the term of the original copyright, no one suggested that rights assigned under the original copyright did not end with it, if nothing was said of renewal. We think they do. A copyright renewal creates a new estate, and the few cases which have dealt with the subject assert that the new estate is clear of all rights, interests or licenses granted under the original copyright.[1] It is true that the expiration of Long’s copyright of the novel did not affect the plaintiff’s copyright of so much of the opera as was a “new work” and entitled to be independently copyrighted as such.[2] But the plaintiff has acquired no rights under Long’s renewal of the copyright on his novel and the plaintiff’s renewal copyright of the opera gives it rights only in the new matter which it added to the novel and the play. It follows that the plaintiff is not entitled to make general use of the novel for a motion picture version of Long’s copyrighted story; it must be restricted to what was copyrightable as new matter in its operatic version.[3]
The next question is whether the plaintiff’s right to make use of Belasco’s play for a motion picture version thereof is similarly restricted to what was copyrightable as new matter in its operatic version. After Long’s novel was copyrighted, Belasco was given permission—a license—to make use of the story for a play. Apparently the license was oral and its precise terms are not disclosed by the record. If it be assumed that the license gave Belasco any motion picture rights, they were necessarily limited to the term of the copyright of the novel. However, Belasco as author of the play had the common law rights of an author, which include the right to copyright it. This was done in 1917. By so doing the play was dedicated to the public except for the rights reserved by the copyright, for that is the condition upon the grant of any copyright.[4] When the copyright expired, the play was property in the public demesne, since the record discloses no renewal of the copyright. Consequently, the exclusive motion picture rights in the play, which the trustee under Belasco’s will assigned to the defendant by the 1932 agreement, expired in 1945 with the expiration of the copyright of the play. Thereafter the plaintiff was as free to use the play as was the defendant in making a motion picture version of the play.
However, the defendant still has the motion picture rights in the renewal copyright
- ↑ See Fitch v. Shubert, D.C.N.Y., D.C., 20 F.Supp. 314, 315; Fox Film Corp. v. Knowles, D.C.N.Y., 274 F. 731, 732, reversed on other grounds, 261 U.S. 326, 43 S.Ct. 365, 67 L.Ed. 680; Ball, Law of Copyright and Literary Property, p. 535. Cf. In re Paper Bag Cases, 105 U.S. 766, 26 L.Ed. 959; Silverman v. Sunrise Pictures Corp., 2 Cir., 273 F. 909; White-Smith Music Pub. Co. v. Goff, 1 Cir., 187 F. 247.
- ↑ The Act of 1947, 61 Stat. 652, 655, 17 U.S.C.A. § 7, formerly section 6 of the Act of 1909, 35 Stat. 1077. Edmonds v. Stern, 2 Cir., 248 F. 897.
- ↑ See McCaleb v. Fox Film Corp., 5 Cir., 299 F. 48, 49; Glaser v. St. Elmo Co., Inc., C.C.S.D.N.Y., 175 F. 276, 277. The statute expressly provides that a copyright on a new work shall neither extend nor be construed to imply an exclusive right to use the original work from which the new work is derived. 17 U.S.C.A. § 7.
- ↑ See Holmes v. Hurst, 174 U.S. 82, 85, 19 S.Ct. 606, 43 L.Ed. 904; Bobbs-Merrill Co. v. Straus, 2 Cir., 147 F. 15, 18–19, 15 L.R.A., N.S., 766.
