right in the name of the author.[1] See, e.g., Rossiter v. Vogel, 134 F.2d 908, 911 (2d Cir.1943); Rose v. Bourne, supra note 10, 176 F.Supp. at 610. Indeed, section 24 of the 1909 Act explicitly states that, except in certain limited circumstances, not applicable here, a copyright may only be validly renewed in the name of the author. See 17 U.S.C. § 24 (1976) (1909 Act), supra note 8; Tobias, supra, 204 F.Supp. at 559.[2]
The only other issue arguably raised by the motions is whether any party has any valid derivative-work copyright interest in either a dubbed or subtitled version of the Film. Under the 1976 Act, derivative works are independently copyrightable. See 17 U.S.C. § 103 (1982) (1976 Act). A derivative work can be a translation of a pre-existing work. See 17 U.S.C. § 101 (1982) (1976 Act); see also Brecht v. Bentley, 185 F.Supp. 890 (S.D.N.Y.1960). Therefore, valid copyrights may still exist with respect to any English-language, dubbed, or subtitled versions of the Film, even if, as the Court has found, the underlying Film itself is in the public domain. See Harry Fox Agency, Inc. v. Mills Music, Inc., 543 F.Supp. 844, 849 (S.D.N.Y. 1982), rev’d on other grounds, 720 F.2d 733 (2d Cir.1983); rev’d sub. nom. Mills Music, Inc. v. Snyder, – U.S. —, 105 S.Ct. 638, 83 L.Ed.2d 556 (1985). Russ Berrie & Co., Inc. v. Jerry Eisner Co., Inc., 482 F.Supp. 980, 985 (S.D.N.Y.1980).[3] However, it is unclear from the papers submitted to this Court to what extent, if any, either party is claiming infringement of either a dubbed or subtitled version of the Film as a derivative work. These issues therefore cannot be resolved by summary judgment.[4]
- ↑ Indeed, it would be illogical to construe this license as a grant to IFEX of the renewal expectancy itself (i.e., the 28-year term), see Fred Fisher, supra, 318 U.S. at 645, 63 S.Ct. at 773, as this would plainly contradict the terms of the license, which clearly state that the license was for a term of 12 years. See Exhibit 6 to the Plaintiff’s Affidavit, at ¶ 6. Thus, in this case, it is important to distinguish between a right of renewal and a right to secure a renewal. Compare Rose v. Bourne, 176 F.Supp. 605, 609 (S.D.N.Y.1959), aff’d, 279 F.2d 79 (2d Cir.), cert. denied, 364 U.S. 880, 81 S.Ct. 170, 5 L.Ed.2d 103 (1960).
- ↑ One such circumstance occurs when the renewal claimant is the current proprietor of a work copyrighted by an employer for whom such work was made for hire. See 17 U.S.C. § 24 (1976) (1909 Act), supra note 8. In this situation, the current proprietor of the work may apply for a renewal in its own name. See Shapiro, Bernstein & Co., Inc. v. Bryan, 36 F.Supp. 544, 545 (S.D.N.Y.1940), aff’d, 123 F.2d 697 (2d Cir.1941). Although, IFEX did, in fact, place this designation under its name on the renewal application, see Exhibit K to Declaration of R. David Jacobs, it is clear that IFEX had no right to claim that status.
Plaintiff has not even alleged that the Film was indeed a work made for hire within the meaning of the 1909 Act. See Siegel v. National Periodical Publications, Inc., 508 F.2d 909, 914 (2d Cir.1974). Moreover, the original registration of the Film shows PDS as the author and not as an employer for whom a work was made for hire, see Exhibit J to Declaration of R. David Jacobs, and there is no evidence indicating the existence of any employer-employee relationship at the time of the Film’s creation from which IFEX’s renewal status could derive. See Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737, 743–45 (2d Cir.1975). Most importantly, under section 24 of the 1909 Act, only a current proprietor can claim a renewal in a work made for hire. Under no possible construction of the facts alleged can IFEX, a mere licensee, be regarded as a current proprietor of the copyright. See Public Ledger v. New York Times, 275 F. 562 (S.D.N.Y.1921), aff’d, 279 F. 747 (2d Cir.), cert. denied, 258 U.S. 627, 42 S.Ct. 383, 66 L.Ed. 798 (1922); see also Egner v. E.C. Schirmer Music Co., 139 F.2d 398, 399 (1st Cir.1943), cert. denied, 322 U.S. 730, 64 S.Ct. 947, 88 L.Ed. 1565 (1944); Van Cleef & Arpels, Inc. v. Schechter, 308 F.Supp. 674, 677 (S.D.N.Y.1969); cf. Geisel v. Poynter Products Inc., 295 F.Supp. 331, 337 (S.D.N.Y.1968).
- ↑ The 1976 Act affords no copyright protection to works that have entered the public domain prior to January 1, 1978. See Pub.L. No. 94-553, § 103, 90 Stat. 2541, 2599 (1976). As this opinion makes clear, the Film entered the public domain on December 6, 1976, when the initial term of copyright expired.
- ↑ It is clear that the affidavits as presently filed by the parties do not support such a claim. Although defendants have claimed that the plaintiffs have been marketing an English-language dubbed version of the Film, thereby infringing their copyright, see Defendants’ Reply Memo at 15, they have done so only in their brief, not in their counterclaim or affidavits. Similarly absent is an allegation that plaintiffs’ dubbed version was copied from defendants’
