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The Copyright Act of 1909 does not nullify agreements by authors to assign their renewal interests.
The litigation arose from a controversy over the renewal rights in the popular song “When Irish Eyes Are Smiling.” It was written in 1912 by Ernest R. Ball, Chauncey Olcott, and George Graff, Jr., each of whom was under contract to a firm of music publishers, M. Witmark & Sons. Pursuant to the contracts, Witmark on August 12, 1912, applied for and obtained the copyright in the song. On May 19, 1917, Graff and Witmark made a further agreement, under which, for the sum of $ 1,600, Graff assigned to Witmark "all rights, title and interest" in a number of songs, including "When Irish Eyes Are Smiling." The contract provided for the conveyance of "all copyrights and renewals of copyrights and the right to secure all copyrights and renewals of copyrights in the [songs], and any and all rights therein that I [Graff] or my heirs, executors, administrators or next of kin may at any time be entitled to." To that end, Witmark was given an irrevocable power of attorney to execute in Graff's name all documents "necessary to secure to [Witmark] the renewals and extensions of the copyrights in said compositions and all rights therein for the terms of such renewals and extensions." In addition, Graff agreed that, "upon the expiration of the first term of any copyright," he would execute and deliver to Witmark "all papers necessary in order to secure to it the renewals and extensions of all copyrights in said compositions and all rights therein for the terms of such renewals and extensions." On August 12, 1939, the first day of the twenty-eighth year of the copyright in "When Irish Eyes Are Smiling," Witmark applied for and registered the renewal copyright in Graff's name. On the same day, exercising its power of attorney under the agreement of May 19, 1917, Witmark also assigned to itself Graff's interest in the renewal. Eleven days later, Graff himself applied for and registered the renewal copyright in his own name; and on October 24, 1939, he assigned his renewal interest to another music publishing firm, Fred Fisher Music Co., Inc. Relying upon the validity of the assignment made to it on October 24, 1939, and without obtaining permission from Witmark, Fisher published and sold copies of "When Irish Eyes Are Smiling," representing to the trade that it owned the renewal rights in the song. Witmark thereupon brought this suit to enjoin these activities. The District Court granted a preliminary injunction pendente lite solely upon the ground that there was no statutory bar against an author's assignment of his interest in the renewal before it was secured.
Does the Copyright Act nullify an agreement by an author, made during the original copyright term, to assign his renewal?
If Congress, speaking through its responsible members, had any intention of altering what theretofore had not been questioned, namely, that there were no statutory restraints upon the assignment by authors of their renewal rights, it is almost certain that such purpose would have been manifested. The legislative materials reveal no such intention. Thus, neither the language nor the history of the Copyright Act of 1909 lent support to the conclusion that the "existing law" prior to 1909, under which authors were free to assign their renewal interests if they were so disposed, was intended to be altered. Further, there were no compelling considerations of policy which could justify reading into the Act a construction so at variance with its history. The policy of the copyright law wasto protect the author -- if need be, from himself -- and a construction under which the author is powerless to assign his renewal interest furthered this policy. It is one thing to hold that the courts should not make themselves instruments of injustice by lending their aid to the enforcement of an agreement where the author was under such coercion of oppressive circumstances that enforcement of a prior assignment would be unconscionable. It is quite another matter to hold, as was in this case, that regardless of the circumstances surrounding a particular assignment, no agreements by authors to assign their renewal interests are binding. It is not for courts to judge whether the interests of authors clearly lie upon one side of this question rather than the other. While authors may have habits making for intermittent want, they may have no less a spirit of independence which would resent treatment of them as wards under guardianship of the law.