De Sylva v. Ballentine


DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

ARGUED: Apr 25, 1956 / Apr 26, 1956
DECIDED: Jun 11, 1956

Facts of the case


  • Oral Argument – April 25, 1956
  • Audio Transcription for Oral Argument – April 25, 1956 in De Sylva v. Ballentine

    Audio Transcription for Oral Argument – April 26, 1956 in De Sylva v. Ballentine

    Earl Warren:

    — Marie De Sylva versus Marie Ballentine.

    Mr. Fink.

    Max Fink:

    May it please the Court.

    Mr. George G. De Sylva was a composer and author of songs.

    In his earlier years, some of his compositions became very important.

    Some of those were renewed during his lifetime and some of his songs were not renewed within the statute, Section 24 of Title 17 of the Copyright Act.

    And it is those compositions which were not renewed during the lifetime of the decedent which concern us in this case.

    The questions presented here are as follows.

    First, does the surviving spouse, in this case the widow, take those renewed copyrights granted by Congress to certain dependents of the deceased author?

    Does the widow take those renewals to the exclusion of the child or children?

    And secondly, is an acknowledged illegitimate child, a child within the meaning of Section 24 of the Act.

    I believe it would be appropriate to say and the record reveals that the child here was not just an illegitimate child out of the blue.

    This child enjoyed the company and society and the love of his father, and in respect to the law of California, is an acknowledged child, formally fully acknowledged.

    The issue as to whether or not this child was fully legitimated, was one that was not admitted, and for that reason that issue was not decided in the trial court because the court felt that under the facts of the case which were admitted and stipulated in most instances that the child was a child within the meaning of Section 24 of the Act.

    Felix Frankfurter:

    Are you going to argue whether under the copyright statute the scope of the meaning of the content of “for children” as a matter of state law or criminal law?

    Max Fink:

    We will argue —

    Felix Frankfurter:

    Are you arguing that children as a matter of federal common law include, covers, recognized illegitimacy?

    Max Fink:

    It is our contention that a child is the progeny of human parents and is a child under every — any law —

    Felix Frankfurter:

    No matter what —

    Max Fink:

    — particular — no matter —

    Felix Frankfurter:

    Doesn’t matter what the statute is.

    Max Fink:

    No matter what the — what the state law maybe.

    However —

    Felix Frankfurter:

    Generously taken a lot of needless territory, I’d like to say.

    I know that’s (Inaudible) to either one.

    Max Fink:

    Well, I — I believe that since the question has been raised that we should also urge that in the event of the status of the child comes in question here, we will argue that that’s status must be determined by the law of the domicile which has the strongest social interest in the persons within his domicile.

    Felix Frankfurter:

    Well, I — I do think one has to come to the questions — a position in this case whether children is a class — the scope of which is to be defined by state law or whether it is — it’s a concept that has to get meaning in interpreting a federal law irregardless of what hardly we would say, irregardless of what state law requires.

    Max Fink:

    I believe that —

    Felix Frankfurter:

    I don’t think one has to face that issue.

    Max Fink:


    Max Fink:

    We do face it and we believe that the decisions of the courts adequately demonstrate that this child is a child within the meaning of the federal law in question here and is a dependent recognized by at law.

    Felix Frankfurter:

    No matter what the state — state law is —

    Max Fink:


    Felix Frankfurter:

    — and that’s (Inaudible)

    Max Fink:

    However, I believe that we should be accorded the privilege suggesting that if the status of the child becomes an issue in this cause and no matter what Your Honors would — would wish to pass upon, that that status must be determined in accordance with state law and that there is no federal law which may determine the status of a child in California.

    Felix Frankfurter:

    I — I don’t understand this.

    Max Fink:

    Well —

    Felix Frankfurter:

    May I — may I put to you my —

    Max Fink:

    Perhaps I can —

    Felix Frankfurter:

    — my problem —

    Max Fink:

    Yes, Your Honor.

    Felix Frankfurter:

    — which is a very simple one.

    Here, the federal statute will give certain rights to children, now, I do not think it is universally true that children in any statute include illegitimate as well as legitimate children.

    I should think until very recently would be opposite to the defense.

    Now, if children in a federal statute is to be given the meaning that we have to — the Court has to give to us as a matter of federal construction, that’s one problem.

    If children in the context of this statute requires the Court to look the pleading and scope and concept of children according to the domiciliary state which the controversy arises then we have to look to California law and of course this Court has — when a — in the first instance to decide what California law is.

    Max Fink:

    Well, may I cover the subject?

    I should like first to call the Court’s attention to the fact that — excuse me — we are concern here only with the renewal clause of the Copyright Act.

    In other words, the copyright under our present laws granted for 28 years with the right given to certain classes of persons to obtain that renewal for an additional 28 years.

    And that our matter here involves only the renewal provision of the Act.

    We note first of all that the renewal provisions of the Act contemplates dependents of the author, and that the Act, the Renewal Act, was adapted for the purpose of protecting dependents of an author.

    And we suggest without painstaking the child regardless of the legal status of its parents is a dependent of the author.

    Now, this matter has been before the courts on numerous occasions not in the precise or problem presented here.

    But the courts have consistently held that the purpose of the Renewal Act is to protect the widows and the children of the deceased author from the supposed improvidence of authors.

    The — there is no other reason for having a split term of copyright.

    Congress had before it, rather the copyright law, contentions were made that there should be one long term of copyright protection.

    The Congress consistently since the very — the first enactment in 1790, the copyright laws provided in this country a split term and the reason for the split term or second term of copyright is to give a new, a fresh and unfettered right directly to those persons whom Congress designates as the dependents of the author.

    We must assume that Congress recognized that it would be shocking to have the — those dependents of one who has contributed great good suffer from lack of funds.

    As we have enunciated in the cases that the second provision of the second copyright is clearly intended to protect the widow and children, and the debates in Congress indicate clearly that that was the purpose for the renewal portion.

    And we suggest that there was not much reason for a split term of copyright except that the second term given fresh, given new directly to these persons designated by the statute.

    Max Fink:

    That gives them a new and unfettered right and claim.

    And we therefore submit that the Copyright Act itself is the strongest and most persuasive argument that the concept of nullius filius, as known in the ancient law, does not apply.

    It is true that in the early stages of the common law, there was a concept of nullius filius which arose, I believe, as a matter of evidence.

    It’s easy to prove the marriage, church records and no other evidence was submitted.

    However, this doctrine has been considerably changed and transplanted and all of the cases, I believe, without any specific exception, have applied that doctrine.

    There are exceptions which I believe have been — have been from time to time of old rule which have applied that doctrine only to matters of inheritance and to no other matter.

    We note that the — renewal portion of the Copyright Act is not a hereditament.

    The new right goes directly not through any estate to the widow and the children.

    And it is —

    Suppose that in support — suppose that he does (Inaudible)

    Max Fink:

    Well this Court has ruled in the case where the opinion was announced by Justice Frank — Mr. Justice Frankfurter, the case of Fisher versus Witmark, 318 U.S. has considered great number of the problems which we are considering here today, although, not our specific type of case.

    And the Court clearly recognized — this Court has recognized that these rights go direct to the statute so it directly provides.

    It is true that if the author is not living —


    Max Fink:

    Yes sir, yes.

    They — the renewal right, the franchise which the Government grants.

    Does the statute in your case (Inaudible) the renewal rights?

    (Inaudible) under the renewal rights.

    Max Fink:

    Well, the cases have all consistently held.


    Max Fink:

    The cases have all uniformly held including the pronouncement of this Court and the Fisher versus Witmark case that the renewal right goes directly to those persons name and does not go into an estate.

    And of course, we suggest that is still the law.

    Now, the word children, of course, may vary from time to time as Justice Holmes has said in the case of Towne versus Eisner, 245 U.S., the word is not a crystal, transparent, and unchanged.

    It’s the skin of a living thought.

    And they vary greatly in color and content according to the circumstances from the time on which it is used.

    It’s also been said that words have different connotation dependent upon circumstances, the time of social aspects.

    The ancient doctrine of nullius filius if applied by this Court would mean the following.

    Because of common law, there were no adaptions, there were no legitimations, there were no acknowledgments, it would mean to all children born of a void or illegal marriage, all children born of punitive marriage, all children born of a meretricious relationship, all children adopted, all the children acknowledged, all the children legitimate, would all be left out of the benefits conferred by Congress upon the dependents of an author.

    And in this day and age, this could not be the result that was intended and it cannot be the law.

    What would you say this expiration would have been in 1909 (Inaudible)

    Max Fink:

    I think it would be well to recognize that the statute — the statute which we have today is in substance, a formulation insofar as widow and children are concerned, of the same statute that we had in 1831.

    But it has been reenacted with varying degrees on numerous occasions, it was reenacted, for example in 1940 with slight changes that deal with subjects with which we’re not concerned here.

    The law was codified in 1947, now our Section 24.

    And each of these reenactments of this law must be viewed, I believe, separately as the intention of Congress at the time of each of the reenactments.

    It maybe well to cite to the Court the case First National Bank versus Beach, 301, United States in which it is held that even words of a statute do not have a changeless connotation and that they just likewise change with time and with surrounding condition and color.

    But particularly in this case, insofar as the doctrine of nullius filius is concern, I would say even in 1831, its application then and prior to that time were strictly in matters of inheritance and the right to hold church — of a church office.

    It has never been applied consistently beyond that point.

    And since the statute in 1831 which provided the renewal right to dependents specifically granted the right directing to those dependents not through any estate.

    It becomes clear that the right was never a hereditament to be construed at any time under the term nullius filius.

    Was an illegitimate child a dependent?

    Max Fink:

    He is a dependent under —


    Max Fink:

    So far as — we know illegitimate child is a dependent under every social concept that we’re under the law of this country generally and universally, I believe, A dependent of his father and of his mother and was universally provide that there is a duty on the part of the parents to support their child.

    And peculiarly enough, I believe in this country, universally in this country at least, laws require that child to support its parents.

    No distinction is made between legitimates and illegitimates insofar duty of support is concern.

    Now the question is, are we to punish this particular child in this society which we live for something that his parents were responsible for.

    Petitioner relies on the case of McCool versus Smith mentioned yesterday, 66 U.S., but I believe we should call this Court’s attention to the fact that that case was again considered 23 years later by this Honorable Court in the case of Hutchinson Investment Company versus Caldwell, 152 U.S.

    And the Court in 1894 reconsidering that case expressly limited the application of the McCool case to the particular statute in the State of Illinois that has to do with next of kin.

    And by the way the term next of kin is quite a different term from the word child.

    It’s quite a different term from the word dependent also.

    Petitioners —

    Felix Frankfurter:

    When we think — the Hutchinson case precisely brings out the point to which I — you define the difficulty to its question, namely, the Hutchinson case went not on the — not on the construction of what the term meant that is true nationwide but it said it can be referred to be governed by state law.

    Max Fink:

    There are several cases to which I will cite to Your Honor which that rule has been held.

    Felix Frankfurter:

    Well, that’s the Hutchinson case.

    Max Fink:

    Yes, and there are —

    Felix Frankfurter:

    Is there a case in which in the federal statute creating certain rights and certain people.

    Max Fink:

    Yes, sir.

    Felix Frankfurter:

    And this Court held that the content of the class must be determined by that into state law.

    Max Fink:

    That is true in the Hutchinson case and in subsequent cases, Your Honor.

    Felix Frankfurter:

    Now, if that — if that rule wouldn’t be adapted in this case then we look to California and we wouldn’t have to worry about this long history of social policy and since they look to what California has decided to include under the term called next of kin.

    Max Fink:

    I believe one of the leading cases on that — on the same subject, Your Honor, is the case of Seaboard Air Line versus Kenney which is 240 U.S. cited in 1916.

    In which the Court clearly held that who are next of kin is to be determined by the legislation of the particular estate involved.

    Felix Frankfurter:

    Now if we — if that is the rule, if that is —

    Max Fink:

    But that deals with who are next of kin, not who is a child.

    Felix Frankfurter:

    I understand that.

    I mean, if the principle of that case, namely, that rights created by the — by a federal statute are to be given its application regarding the beneficiaries according to who would be the beneficiary under state law then they look to the state law and they don’t follow by — the Roman law and unfairness to illegitimate children and all the rest of it.

    Max Fink:

    Well, if I — I believe that I should cover the ground in case some of the other Honorable Justices may hold some different opinion, Your Honor.

    Felix Frankfurter:


    I think that’s quite right but you — you can’t — you’ve got to give some guiding consideration meaning to those who hold the other view, because the other view would have to be that it is federal law that governs.

    Max Fink:

    Well, it was contended in the Seabord case that there should be a federal law or to produce uniformity, and of course, the Court — this Court, Honorable Court held in 1916 that to attempt to produce uniformity upon such a subject in federal law would merely promote a greater disharmony and irreconcilable differences in all the other forms in the several states.

    You depend on California law too, don’t you?

    Max Fink:

    Yes, Your Honor, we — we do if we — if — in the alternative, if I may suggest.

    Felix Frankfurter:

    You mean, could extend on California law which makes — recognize illegitimate children, children.

    Then you must, in another case which — in which another state in which that is not the law reached the opposite conclusion.

    You can’t say it depends on whatever law favors your position.

    That is not a rule of law, that’s a rule of preference.

    Max Fink:

    I’m personally constrained to — my personal feeling is that a child is a child under the —

    Felix Frankfurter:

    You don’t view what the law is.

    Max Fink:

    And — and that — to that, when the word child is used not next of kin or similar words of import in a will, the word child to be determined from the dictionary is a progeny of human parents.

    But if the Court wants to look further and —

    Felix Frankfurter:


    Max Fink:

    — and referring to the statutes.

    Felix Frankfurter:

    If that’s your position, then you don’t look to state law.

    I understand that too but I don’t understand switching which ever position seems to bring about the result you desire.

    I can understand that as a human preposition but not as a lawyer’s argument.

    William O. Douglas:

    If you look to state law, then do you look to see if the child is a dependent under the support statutes or the child is an heir under the (Voice Overlap) —

    Max Fink:

    Well, we look to both.

    The statutes of California is pointed out in our brief, provide, first of all, a child is a dependent and must be supported whether he is acknowledged or not.

    And this is true not only in the civil law or section of the civil law but also true under the criminal law.

    And we also find the City of California, it’s printed out in our briefs that the parent has the right to have an illegitimate child support the parent in the event the parent was indigent.

    William O. Douglas:

    Well, we’re not dealing here precisely with heirship though, are we?

    Max Fink:

    No, we are not.

    This is the thought that I wish to point out that we are not dealing with heirship here because this is something that Congress bestows directly upon the classes of persons involved.

    By the way, the petitioner yesterday cited the two California cases, the Chinese cases which we — were decided in 1928 by the same circuit that decided our case.

    We call them the Yellow Peril case or the invasion of the yellow horde because at that time in California, there was considerable opposition to the in — tremendous influx of Asiatics.

    And the Court in our case, the very same Circuit decided these cases, 29 years after those decisions, those decisions by the way stand alone, has renounced those decisions and taken an entirely different view after considering those cases.

    However, and I should also note that despite the two California Asiatic cases, the — allegedly Congress adapted a statute because of the difficulty of proving that the child had American blood in its veins, adapted the statute that required that a child either be legitimate or legitimated in order to become — brought into the country from a foreign country and become a citizen.

    And — however, there is no such provision in the Copyright Act.

    There is no provision in the copyright requiring the child be legitimate or otherwise.

    I should mention that even after the adaption of the — of the citizenship statute requiring a legitimate or legitimated children that the case of Compagnie Generale Transatlantique was decided, that was 27 DA F.Supp. in which the Court of Claims held that a citizen of the United States who had — who had acknowledged an illegitimate child living in Cuba, at the time he lived in Cuba that that child, even under the statute of citizenship became a citizen of this country by that acknowledgement.

    With due apology to the Court, I don’t tend to ride with the homes and the heirs as both but I do believe that if the Court is going to look to status, we should consider the cases this Court has passed on, passed upon in the past with regard to the fact that the law of the domicile which has the strong social interest in the relationships of people should be looked to, to determine whether or not a child is a child within the meaning of an Act.

    Well, I —

    Max Fink:

    I —

    I’m — I’m confused as to what your position is.

    I thought a moment ago, you led me to believe at least that you were construing this statute just the way you’d approach the construction of a will.

    Max Fink:

    Oh, exactly to the contrary.We don’t construe the statute as a testamentary disposition at all.

    It is a grant of benefits directly by Congress to dependents.

    Well —

    That’s the —

    — let me — let me put it this way.

    If you had a will, of course, and the word “children” is used in it, it’s a question of the intent of the testator.

    Now, is it your contention here that the use of the word children is to be determined by what Congress’ intent was in using that word in the statute or is Congress’ intent to be — to be construed in terms of the way that word is used in the — under state law, the fact it has under state law dependent upon the domicile of the person concerned, the child concerned?

    Max Fink:

    It is our contention that since the federal copyright statute has no provision differentiating between legitimate and illegitimate children, acknowledged children, adopted children, or any other type of children who would be excluded by the rule of nullius filius.

    That Congress intended to provide for children who are the children of the author or the child of the author and his dependents.

    Without reference to state law.

    Max Fink:

    Without reference to state law.

    The state law may only be inquired into if this Court is of the — should reach the opinion that somehow this matter is related to intestacies in which case the child is nevertheless an heir to the law of California.

    Well then you do throw state law situs as the (Voice Overlap) —

    Max Fink:

    In general.

    You do?

    Max Fink:

    Yes, Your Honor.

    In the case of Middleton versus Luckenbach, 226 F.2d, the question arose out of the Federal Death Act which, I believe, is analogous to our case where several people were — lost their lives on the high seas.

    In that case, several cases being joined, the parents sued for damages for the loss of their illegitimate children and those illegitimate children also sued for damages for lost of their — lives of their parents.

    Under that federal death statute, the Court stated and I quote, “There is no right of inheritance involved here.

    It is a statute that confers recovery upon dependents, not for the benefit of an estate, but for those who, by our standards, are legally or morally entitled to support.”

    I’ll read on.

    “Hence, consideration, humane considerations and the realization that children are such no matter what their origin alone might compel us to the construction that under present day conditions, our social attitude warrants a construction different from that of the early English view.”

    The Court there goes on to say, “The purpose and object of the statute is to continue the support of dependents after a casualty.

    To hold that these children or the parents do not come within the terms of the Act would be to defeat the purpose of the Act.

    The benefit conferred beyond being for such beneficiaries or society’s welfare in making provision for the support of those who might otherwise become dependent.

    The rule that a bastard is nullius filius applies only in cases of inheritance.

    Even in that situation, we have made very considerable advances towards giving illegitimates the right of capacity to inherit by permitting them to have inheritable blood.

    The cases also hold that Congress recognized — and by the way, the debates of Congress enacting the statutes hold, that Congress recognized it by the very event of death, the children and dependents of the author are that much more dependent upon the value of the renewed copyright and upon the benefits which flow from it.

    But the case of Green V. Burch, a California case, the Court there stated that the doctrine nullius filius is no longer suitable to the needs of the people and it cannot be regarded as part of the law today.

    That case involved a state statute which gave benefits to the children or dependents of soldiers, persons in the armed forces.

    We must all bear in mind considering the statute that the author is often a female.

    And even to common law, a child, illegitimate child inherits from his mother, if we want to speak in terms of inheritance.

    And certainly, as a child with a mother and we must ask petitioner the question, suppose in this case the author had been a woman.

    Would petitioner contend that the child of that woman is not entitled to receive the benefits of the — bestowed upon it by the Act of Congress.

    The — referring to the language of the statute discussed yesterday, Copyright Act as it now reads as to these important provisions of it to our cause that the author of such work, if still living or the widow, widower or children of the author if the author be not living, or if such author, widow, widower or children be not living, then the author’s executors or in the absence of a will, his next of kin shall be entitled to renewal.

    I should mention even though in the absence of a — of the author, the widow, and children that — the widower and children that even though at that point, the executor has a right to apply for renewal, the renewal rights do not go onto the estate.

    I wish particularly to note the language of the section which clearly demonstrates that there are four classes of persons entitled to obtain the renewal right and each one of these classes is clearly be marked and defined by qualifying phrases at the end of each class.

    As the statute reads, the author of such work is still living, that’s the first class or the widow, widower or children of the author, if the author be not living is your second class.

    Third, if the author be not living or such author, widow, widower or children be not living, then the author’s executors, qualifying phrases, each separate class be marked separately.

    Earl Warren:

    Did I understand you to say that — that the executor applied that it would not go into the estate?

    Max Fink:

    That’s correct, Your Honor.

    Earl Warren:

    Where would it go?

    Max Fink:

    Goes — well, this has been a question and this troubled the Copyright Bar for some time.

    Presumably, the executor has a power of appointment to give those copies — those renewed copyrights directly to those named in the will or to appoint them to the next of kin.

    That issue is not before us here but it has not been completely and settled except that the cases have time and time repeated — time and again repeated the executor may apply for in the absence of a — of children, of widow, in the absence of a widower.

    Max Fink:

    But they do not go into the estate where you can claim some (Inaudible) and so forth.

    Earl Warren:

    Is there authority for that?

    Max Fink:

    There the — there’s no case directly in point, Your Honor, with the exception of the case decided, I believe, in 1916 cited in the brief of the Government in which the executor brought an action, but apparently in that case the renewal had already been had by the widow and children in the case of two authors who jointly contributed to the work.

    And the Court there held that the widow and the children in each case had obtained the legal right to the copyright.

    All of the cases however mention the point including the — this Court — the case of Fisher versus Witmark, 318 U.S.

    And it seem to indicate clearly that the rule is that they do not go into the estate.

    The argument is made by counsel that the word “or” appears between the class, widow, widower, or children.

    Therefore, there is some disjunctive offered in that sense indicated.

    The word “or” as used in the Act and by the way which is demonstrated by the very next clause were clearly the word “or” again is used in the conjunctive sense in the same statute is certainly intended to create the class of widow, widower or children.

    The words again, or the author of such work if still living, or the widow, widower or children of the author, if the author being not living, or if such author, widow, widower or children be not living, then the author’s executors.

    Certainly, what the Congress meant was that if the author, widow, widower and children were all not living.

    We are accustomed to saying the word “or” and “and” as coordinating particles sometimes not precisely used and quite often, they’re used in the sense of “and/or”.

    We contend insofar as the class, widow, widower and children are concerned that the word “or” is actually used in the conjunctive.

    In other words, it means that any one of the class, widow, widower or children may apply for the renewal.

    Well, obviously —

    Max Fink:

    But if they all own it.

    The nature of things as far as the widow and widower are concerned, it has to be in the disjunctive, doesn’t it?

    You can’t have both —

    Max Fink:

    That’s true.

    And the entire clause is phrased in the disjunctive that — to the effect that anyone may apply.

    I should note that the 1831 statute where the widow, widower had no rights.

    The 1831 statute talk about a widow and children before the widow — widower arrived upon the scene by the 1909 Act.

    Very clearly in that Act, they used the words anyone of them acting and the requirement that any one of them, the requirements of that additional clumsy language was eliminated by revamping of the statute to provide widow, widower or children, which means anyone of them acting.

    Felix Frankfurter:

    The fact that Congress thought it necessary to put in widower shows how little — how little light one can get from the mere words of the statute because in merely changing social condition, in lieu meaning, the terms certain these days after dealing with this kind of a subject since they have the word widow, could be read to mean male or female and therefore widow, unless Congress thought it necessary to be specific.

    Max Fink:

    It was contended by petitioner that the word “or” here in the same clause is — if it’s not completely disjunctive is used in the alternative and they depend upon cases relating to wills for this intention.

    I want to call the Court’s attention to the fact that there is no law that where the word “or” appears in a — even a will or a deed, that this word means substitution or altered.

    It’s only by reading the four corners of the will that one — that the judge is permitted to determine the true meaning of that word.

    And I suggest that reading the four corners of our statute also in order to reach that determination, we will find that the word is used not only in the conjunctive but also in the disjunctive in that same clause meaning that anyone of them may act to renew, the widow, widower or children and if they all have rights or injustice, in a case of a savings bond where you have it payable to Jane Doe or John Doe, they certainly both have rights in that bond.

    Hugo L. Black:

    May I ask you — do you know whether there’s any state which has under its law the sense and distribution provided that all of a deceased (Inaudible) his properties approaching the other one, this widow or the widower?

    Max Fink:

    Well, absence the community property law and — no, I’ve none.

    Max Fink:

    And it has always been, I believe, general opinion certainty if Congress in 1909 and in earlier times when the statute was enacted and reenacted that children always share in the estate of the intestate.

    I turn now to the Act of 1831 which is the first Act that granted rights to widows and children and I note that the 1790 Act, which was our first Act, our first — Congress enacted an Act which gave to the author the right to have a copyright of 14 years.

    And if he was living at the end of the fourteenth year, he could renew for another 14 years.

    1831 is the first time the women and children appeared on the scene.

    This Act reads that if 1831 Act, that if at the expiration of the aforesaid term of years, such author be still living or being dead shall have left a widow or child or children, either or all of them living, the same exclusive right shall be continued to such author, designer, or engraver or if dead then to his widow and children — widow and child or children was the word used for the further term of 14 years.

    Now, this Act demonstrates three things.

    First, it is clear that even in 1831, Congress did not wish to prefer a spouse to the children, treated them all alike.

    And we all admit the 1831 statute very clearly demonstrates then to such widow and child or children for the further term of 14 years that they’re all treated alike.

    This is conceded by even in amicus curiae.

    It is clear that even in 1831 then, that Congress did not prefer a widow over the child or children.

    Secondly, from this 1831 statute, we gather, that even in 1831, Congress saw no insurmountable problem regarding the percentage of how they were going to share, which was presented to us here yesterday by the petitioner.

    Felix Frankfurter:

    How did they provide for distribution?

    Max Fink:

    They — they — the provision merely provides that the widow and child or children take the renewal copyright and the cases and the commentators on the subject have indicated that this is a tenancy in common, they share in common.

    That was intended by Congress and that is the law.

    Felix Frankfurter:

    Well, is there any light of what was intended by Congress other than the words in the statute?

    Any light at all, just any?

    Max Fink:

    In the statute itself, only in the cases and the comments of the writers.

    Felix Frankfurter:

    Congress — Congress.

    I believe you to say that Congress presented that that (Inaudible)

    Max Fink:

    No particular congressional reference that I have, Your Honor.

    Felix Frankfurter:

    Well, is that nothing more than the words.

    Max Fink:

    Now — well except that the Act —

    Felix Frankfurter:

    (Voice Overlap)

    Max Fink:

    -– clearly provides, Your Honor, if I may suggest that if the author be dead then the renewal right goes to such widow and child or children and this is a grant to them jointly.

    And I don’t believe there is any problem on that score that the words are clear both in that Act as well as in all Acts subsequent to that time that the grant is a joint grant, a joint right.

    Another important —

    Felix Frankfurter:

    In light, gets it all, or it has, it’s a one child, referring to your view, gets one quick (Inaudible)

    Max Fink:

    Well, of course, that doesn’t concern us here because the —

    Felix Frankfurter:

    No, that (Voice Overlap) —

    Max Fink:

    You see, only that one child.

    Felix Frankfurter:

    Yes, but —

    Max Fink:

    But —

    Felix Frankfurter:

    Is that (Voice Overlap) —

    Max Fink:

    — in my — it is my view and the view, I believe, of the more eminent writers in this subject with which I am pleased to agree that the wife and children share pro rata to the number of people.

    Another important incident of this Act of 1831 where the widow and children were first granted the right of renewal is that we noticed that in — even in 1831, Congress saw no problem in the marketability of the product of the copyright where — and here we have clearly that if someone wanted to get the entire right of the widow, and from 1831 on, and the children had to enter into the grant.

    And may I, at this time, suggest to Your Honor that there has been a clamor from the very inception of copyright by legislation of the library of Congress meeting call prior to the 1909 Act by the so-called class of assignees, the publisher’s studios, and so forth, who buy properties.

    They wanted a long term.

    They wanted to acquire all of the rights.

    This is going on and the subject has been studied time and time again.

    And Congress has nevertheless, on each occasion, reenacted the split term of copyright in order to give that new protection to the dependents of the author, free and unfettered from agreements, arrangements made prior to that time.

    And frankly, this practical argument that they have to go to more than the — just the widow for renewal right, is a bit suspicious because in the first place, in most writings, particularly music, there are always several collaborators.

    Each of them has an undivided interest.

    There is always the next of kin who may be there to pick up the renewal right at the time that it accrues, maybe no wife or no children.

    Certainly, we don’t know that the wife is going to survive 28 years.

    We don’t know who the next of kin is going to be, we’d only know a wife the man’s going to be married to at the end of 28 years.

    These problems are not new and they’re multitudinous if one sets out to grasp the entire right that all persons may ever have in a particular copyright, in order to ensure themselves the continuation of 56 years of undisturbed possession of all rights under the copyright, he would have to contract with a great number of people including many that could not be known at the earlier date.

    Of course, under the arguments made, that the copyrights be worth more in the hands of the widow, she doesn’t have to share with the children.

    Well of course, this is true.

    But we are mindful of the — of the language of one of our great justices who’ve said that merely because something is worth more in the hands of one than in the hands of the other does not mean that one should lose his rights.

    In any event, we come to an adaption of the Act of 1870 following the adaption of the Act — of the earlier Act of 1831 and adapting this Act, this is what the commissioners of revision stated.

    They said, if the bill was examined by the Committee, that’s the House Committee on revisions of laws and was found to embody all the provisions of existing law in brief, clear and precise language.

    We will remember that the earlier Act had in it considerable language, it wasn’t necessary to the task.

    And so the 1870 Act, so far as we’re concerned, adapted the word that the author, if he be still living or his widow or children if he be dead, shall have the same exclusive right continued for the further term of 14 years.

    And this is certainly a brief, clear, and concise language.

    The — in 1909 or our present section as it now stands was so far pertinent here was concerned was adapted.

    There were acts pre — there were bills proposed that the widow take first and the children second.

    However, those bills were completely rejected.

    And the report of the committee, the 60th Congress states among other things that instead of continuing the renew — right of renewal to the author if still living or to the widow or children of the author if he be dead, we provide that the author of such work if still living may apply for the renewal or the widow, widower or children of the author if the author be not living or if such author, widow, widower or the children be not living, then the author’s executors or the absence of will is next of kin may apply for the renewal.

    In this respect, even the 1909 Act retained the formulation of the preceding Acts and that’s the Act of which we are confronted today.

    Now, we want to bear in mind that there were — this Act of 1909, the Act of 1870, the reenactments and there were — and reenactments in between and reenactments since and all during this time, the copyright officer charged with the administration of the statute have continuously and constantly taken the clear position which has been publicized to all that the children and the widow share equally in the renewal rights.

    Max Fink:

    There are instructions for renewing applications so show and this has been their practice and known to all.

    That this is the better practice.

    That this is the appropriate practice.

    That this practice was publicized.

    It’s clearly indicated in the briefs, by respondent’s brief as well as in the brief filed by the Government, which shows that this has been the practice this many years.

    And I am somewhat surprised that one would claim at this late date that this has not been the practice.

    Now, when it comes to interpreting our statute which I suggest by its four corners, evidence is that the women and the surviving husbands, surviving widowers and the children all share as a class.

    If we interpret it in accordance with equity and conscience, I think we must all agree that a child is as much in need of support as is a widow.

    A child is also a dependent and as a matter of fact, Mr. Justice Harlan holds the question yesterday as to whether if a widow renews a copyright, she then owns it all to the exclusion of a child if — if the Court interpreted all that way.

    And we suggest without painstaking that the law is very clear that if a widow was permitted to renew to the exclusion of the children, she would then own the entire copyright and if she died the next day, it would go to her estate and whoever she may devise or acquitted once it has been renewed or she could give it away, do whatever she may wish with it.

    The child would have no interest whatsoever if this Court should happen to rule as contended for by petitioner.

    Now this, with the — the — there are many text writers, article writers in cases cited in our briefs and in the briefs of the Government with regard to the — the opinion and the practice that the widow, widower, and children share.

    And because Mr. — because the petitioner yesterday made some reference to a letter written by Mr. Ligon Johnson or to Mr. Ligon Johnson, I should like to read to this Court, if I may, a letter from Richard C. De Wolf, Acting Register of Copyright to Mr. Ligon Johnson on April 22, 1944 with respect to the same problem which he considers whether the widow, widower and children share together.

    The copyright office in this letter stated, “My own view is that there are — they are members of one class.

    Consequently, one member of the class may file application for renewal and thereby obtain a legal title holding the renewal copyright in trust however by the other members of the class.

    If would seem to me that if it had been the intention to give the widow a right of renewal to the exclusion of the children, the language of the section would have read that the copyright could be renewed by the widow if the author is not living or if neither author nor widow is living, then by the children.

    The tenor of the discussions in regard to the renewal provisions, as you may recall, and here we asked reference to discussions in Congress.

    The tenor of discussion on the ground of renewal provision you may recall, seems to emphasize the desirability of the authors being able to provide for his family.

    Let us suppose that an author has been married two or more times and that children survived him by an earlier marriage, then, do you think that the loss would intend the widow, that is, the person who was his wife at the time of his death to take the entire renewal copyright to the exclusion of the children?

    The difficulty in giving a valid title to the renewal copyright under the terms of the existing law is obvious as is frequently been brought to our attention.

    However, it would be almost as great if the question were one of a number of children as it is with the widow included along with the children, so also of the next of kin or indeed of several joint authors.

    Petitioners make so-called practical arguments, and they argue that many deals fall through because they can’t clear rights, well, frankly clearing rights, clearing expectancies that may accrue at the end of 28 years has always been a problem and one which the so-called assignee class as distinguished, if I may say, from the individual writer-author have always been concerned with.

    And they have some difficulty in clearing them because human affairs do change, marriages change, then they have more children, more next of kin at the time the renewal right arises, and this is multiplied by the number of authors who contribute to a single work.That has never really posed a problem.

    Now we suggest to Your Honor that these matters outside the record such as the argument regarding the $500,000 deal lost by one of the studios, I believe we can say from our own knowledge that these deals are quite often lost for many reasons, most of which are generally unknown and certainly the record here is silent upon many such deal.

    I believe that I may say without painstaking that as a practical matter, as a practical matter in this case has demonstrated that the child receives $100,000 out of performance royalties as — and as a bonus more than what have been received by Mr. and Mrs. De Sylva.

    I think I should point out to Mrs. De Sylva probably granted her rights some years ago was indicated by the amicus curiae briefs to some of the publishers.

    If she had those rights grant over again today, it would, of course, be much more valuable.

    And that was the intent and purpose of Congress, to protect those rights so that when they do become available, those people who are dependent can realize upon them fully and so that they are not fully disposed off before their true value is known and established.

    There are a great number of works that have been split in the second period between different publishers, one, two or more publishers.

    There is a reason for it.

    Max Fink:

    There is an economic reason.

    And, of course, although this Court can’t decide this matter based upon economic reasons which don’t appear, I suggest without apology and in the first place, there are literally many thousands of copyrights each year particularly a case and is for compositions.

    But older copyrights would become lost and forgotten were it not for this renewal period and the right to go out and renegotiate and make a new deal and let somebody else — somebody new put some money on it and exploit it to keep it available.

    Secondly, that it is true that over the first 28-year period, it may — a publisher may become decadent for that matter or retire from the business and merely wait until the public comes and finds the article and purchase it from him before he is duly bound to pay a royalty.

    And it is our opinion that renewal period were realized more if those who obtained the renewal are free to deal with it in their own fashion.

    We’re cognizant of the fact this Court has ruled the Fisher versus Witmark case announced by Mr. Justice Frankfurter that the author himself has the right to agree to assign his renewal if and when he should survive and acquire it.

    And I assume that by the same token, others could grant their renewal.

    I should mention that decision — there were some dissent.

    Justice Douglas and Justice — Justice — Mr. Justice Black, I believe, contended even there that the author should not be permitted to part with — to agree to part with his renewal right if and when he survived to receive it.

    And it indicates the desire of Congress and the Act itself to at least preserve this renewal rights so that when they do accrue, they maybe realized upon.

    It’s true the author may deal with his renewal right only if he lives and survives to renew it.

    Felix Frankfurter:

    I take it you inferred the intention of Congress (Inaudible) to the dissenting opinion, is that it?

    Max Fink:

    No, Your Honor.

    There hasn’t —

    Hugo L. Black:

    (Voice Overlap)

    Max Fink:

    The opinions in that case are not —

    Hugo L. Black:

    (Voice Overlap)

    Felix Frankfurter:

    May I suggest, he did in this ground, they didn’t want to spill out.

    Max Fink:


    I — I —

    Felix Frankfurter:

    Merely find the Intention of Congress.

    Max Fink:

    I merely wanted to point out to the Court that even in that case, the renewal right was so carefully guarded for the future.

    That even in that case, it was only decided that you can agree to convey a way to your renewal rights if you survive to the time when it accrues.

    And even that was decided by some difference of opinion in this Court.We are — I believe do not intend to construe Congress’ intentions from that decision, Your Honor.

    Now, I repeat again, if I may, that the arguments that this copyright should be free and unfettered and so that the assignee, so-called class of assignees are free to go out and deal with them and tie them for the — for a 56-year period so that assignees would have less people to deal with when they go out to acquire a copyright and to ensure themselves the posterity in that copyright.

    These arguments have been made time and time again.

    History of all legislation on the subject reveals it and Congress has continuously rejected most of those arguments and has enacted legislation here which clearly specifies that, number one, the right goes only to those persons designated by Congress.

    And only in the classes or classifications in which Congress has designated.

    They must survive and be available to apply it for the renewal at the time it accrues.

    Theodore Kiendl:

    We have nothing more to add, Your Honor.