Miller Music Corporation v. Charles N. Daniels, Inc.

PETITIONER:Miller Music Corporation
RESPONDENT:Charles N. Daniels, Inc.
LOCATION:District Court for the District Court of Columbia

DOCKET NO.: 214
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 362 US 373 (1960)
ARGUED: Feb 24, 1960 / Feb 25, 1960
DECIDED: Apr 18, 1960

Facts of the case

Question

Audio Transcription for Oral Argument – February 25, 1960 in Miller Music Corporation v. Charles N. Daniels, Inc.

Julian T. Abeles:

— District Court held that if the author did not survive the 28th year, there was nothing that could be acquired by the executor.

He had nothing to leave.

And of course, out of the — the Court of Appeals, that is the majority of the Court of Appeals affirmed upon the determine — upon the decision of Judge Bryant.

Now, Judge Bryant and also the respondent, cite in support of this contention, two authorities.

That is two — rather two, I would say, two textbook writers, two copyright textbook writers.

One, Ball another known as Ladas, and if I may respectfully do so, Ball says in accord with what they contend, “When can I grant personal property in which he has no existing title of vested right?”

Consequently, an expectancy and a drawing out of property cannot be the subject of an assignment at law of a valid mortgage sale, nor be devised by will.

And Ladas answered the same effect, the author cannot dispose the rights, he may never have.

Now, as I said yesterday, in — in Fox Film against Knowles, the precise contention was raised and the Court of Appeals, in affirming said, “That while they recognize there could be no distinction between an assignment by the author or divide — or devise that he can, having not survived the 28th year, he could do neither.”

In this Court, I will say it that, this Court in a — in a reversing said, that as the — as the executor represents a person of his testator in the absence of a widow and child, he can exercise the same power that the testator might exercise if he had been alive.

Felix Frankfurter:

May I ask —

Julian T. Abeles:

Yes.

Felix Frankfurter:

May I ask you, I’m not familiar with Ball with that — of what you read, was that a generalized statement by that author?

Julian T. Abeles:

Well, that —

Felix Frankfurter:

It has assigned property that you haven’t got in — in essence?

Julian T. Abeles:

That’s a page, Your Honor, they referred to and that’s the only thing I could find on that page that has any reference to it.

He does say that it can’t do either one.

I don’t know.

I just cite that.

I don’t know, why you say, he can’t assign or can’t divide — make of clash, but that’s what they say, they cite that.

Felix Frankfurter:

I mean, does the author —

Julian T. Abeles:

They cite —

Felix Frankfurter:

— derive this statement as a general proposition of — of conveyable or assignable interest or that he derived that from the copyright legislation?

Julian T. Abeles:

I don’t know where he got it from, if the Court please.

Felix Frankfurter:

Well, I — I’m not —

Julian T. Abeles:

It just seemed to be an off-hand statement, I think on his own, I can’t understand why you made it, if I may say so.

Felix Frankfurter:

But if it isn’t — it isn’t so as the generality.

Demonstrably not —

Julian T. Abeles:

No sir.

Felix Frankfurter:

— a generality.

Felix Frankfurter:

It might be good —

Julian T. Abeles:

It isn’t so, either —

Felix Frankfurter:

— of the copyright, but not as — as the property generally?

Julian T. Abeles:

It’s not so as to copyright, either if will point out.

Felix Frankfurter:

Well, that’s why — that’s why you’re here.

Julian T. Abeles:

That’s right, sir.

Felix Frankfurter:

But as to general proposition if certainty calls.

Julian T. Abeles:

I can’t understand why Judge Bryant said the same thing.

After all these decisions in copyright, decisions of this Court as I point out.

Felix Frankfurter:

Well, there has been no decision on this particular question as I understood?

Julian T. Abeles:

Well, in Fox Film against Knowles, if the Court — this Court did say, that the — the — this — this Section 24 clearly evidence the fact that the executor does represent the person of his testator.

That seems to be pretty strong and that in the absence of a widow or child of course, because widow or child must come — it can be — can do nothing to deprive them of the right, of course, I’m pointing out.

In their absence — of widow or a child, sir, that he can exercise the same power that the testator might’ve exercised (Inaudible).

That seems to be pretty strong.

Felix Frankfurter:

I’m merely suggesting that this case at least as I understand the problems of it, cannot be decided by general problems of property law and certainly not by wrong propositions of property law.

Julian T. Abeles:

That’s right, sir.

Felix Frankfurter:

It has to be decided.

I don’t mean to say general considerations of — of laws’ attitude towards interest, but I was surprised and I know no more than what you read.

I was surprised that any author would say, “You got to have property ownership or property in essay in order to be able to deal with it.”

Julian T. Abeles:

Yes.

Felix Frankfurter:

That’s certainly is a matter of wrong statement that one could find in the Ball.

Julian T. Abeles:

And Judge Bryant says approximately the same thing, may I respectfully say so.

Now, in the case of (Inaudible) in that case, the determination of the District Court was affirmed by the Court of Appeals in Second Circuit (Voice Overlap) —

Felix Frankfurter:

May I interrupt you another?

Julian T. Abeles:

Yes.

Felix Frankfurter:

What if Ladas, who’s writing that, do happen to know, what does he say about this?

Julian T. Abeles:

Ladas, well, yes.

I have that here in the — Ladas says — well he says this.

It seems to be the same effect, if I respectfully say so.

The author cannot dispose the rights that they never have.

Julian T. Abeles:

So, he uses the words “disposed of” it seems to me doesn’t — it seems to me, I should think —

Felix Frankfurter:

But admit, he says the author.

Julian T. Abeles:

That’s right.

Felix Frankfurter:

Here, his talks about an author disposing of rights.

Julian T. Abeles:

That’s right.

He goes more into the copyright.

Felix Frankfurter:

It’s a very different thing from the same defense.

Julian T. Abeles:

Yes.

That’s —

Felix Frankfurter:

And you can’t deal with property that may come into your possession, but you haven’t got now.

Julian T. Abeles:

That’s right, sir.

Felix Frankfurter:

It’s just silly.

Julian T. Abeles:

Yes.

Shall I proceed, sir?

Felix Frankfurter:

Well, I —

Julian T. Abeles:

Unless I say, if you still want to —

Felix Frankfurter:

No.

No, it’s the way of the author, that’s I — I —

Julian T. Abeles:

Yes.

I understand.

Felix Frankfurter:

— (Voice Overlap) the way of the author.

Julian T. Abeles:

Yes.

I see what you mean, the — Ladas does affirm that too until the author of Ball does not specifically refer the — he said it makes a general statement of property, that’s correct.

Now, this case I was mentioning before if, I may proceed.

The (Inaudible) the determination of the District Court was affirmed by the Court of Appeals Second Circuit and this Court denied certiorari.

Now, in that case, the author had left his renewal interest to his hometown in Gaborone, I’m sorry, to Gaborone, and the contention there was that — that is the — the next of kin came and they were the ones who were posing it.

They said that the sole right that the author has is to name the executor, apply for renewal.

But that he cannot possibly, he has nothing and that he can’t — to transfer or that is, authorize the executor to act for — to act in respect of.

Could I ask you a factual question?

Julian T. Abeles:

Yes.

You said yesterday, that — that the — at the time of the original assignment by the author that assignments were given by the — his next of kin, as well, or consented to his assignment was considered.

Julian T. Abeles:

What they did, sir, was that all — all people in the music field under that film, the Motion Picture Films of a (Inaudible).

They — they all do this.

You see were a man houses any wife or a child, they get the assignment, of course, from the author and that is to find out who is next of kin of it.

And —

Julian T. Abeles:

On this particular case, his only next of kin was his three brothers.

And —

Julian T. Abeles:

So, they said, “You have to get them to sign,” which he did.

They transferred all rights and they’re just not here after no one existed and agreed to execute such further documents.

They’d be necessary for the purpose affecting those right.

Well, my next —

Julian T. Abeles:

If one of his brothers qualifies to the executor and turns over this property to his spouse, and the child or the other brothers.

What I was trying to get at and I think you’ve answered it was, whether the people who would be the beneficiaries, if your opponent’s position is — were sustained, are the same people that executed these consents or signed the (Inaudible) to be the father of this group.

Julian T. Abeles:

No.

The — the fathers, yes.

Yes.

Julian T. Abeles:

— and the three brothers.

Make it your point.

Julian T. Abeles:

They were saying, he left to the (Inaudible)

(Voice Overlap) —

Julian T. Abeles:

(Inaudible) specific now, so he’s didn’t make a specific request, he just left —

No.

I understand.

Julian T. Abeles:

(Voice Overlap) —

Charles E. Whittaker:

Do you argue, if I may ask this (Voice Overlap) —

Julian T. Abeles:

Yes.

Charles E. Whittaker:

— that the act of the next of kin, the brothers, in joining in conveyance of any interest they might have or after it acquired, is binding upon the residuary legatees who are their children under the laws of descent to under this will.

Julian T. Abeles:

No.

I don’t wish to say that, sir, of the Copyright Act, because what we do is we get him to sign because he doesn’t make a will — we’ll protect him.

We always assumed under Fox Films against Knowles, if he didn’t make a will, were protective because the executor stand in the shoes of his testate.

Julian T. Abeles:

That was our theory.

We’ve always followed that throughout.

And I know all the other lawyers would feel that.

Earl Warren:

Suppose he had married after — after this assignment.

Julian T. Abeles:

That’s very easy, because once we have the author sign, sir, the wife would rarely sign and we can rarely get the children, we found that’s no difficult.

Earl Warren:

You what?

Julian T. Abeles:

Once the author has signed over — that is — assigned his renewal interest to the publisher, to the Motion Picture Company or whoever it is, they find there’s no difficulty, later on, as a man does — may — to have a man get his wife to execute a separate instrument of assigning her rights or if he has children, we could — we find that very — but because of this —

Earl Warren:

Is that a legal answer?

Julian T. Abeles:

Yes.

I think so, because —

Earl Warren:

Which should have no difficulty in —

Julian T. Abeles:

Well, I —

Earl Warren:

— pursuing her to do it?

Julian T. Abeles:

We take that in — let me put it this way —

Earl Warren:

How would you —

Julian T. Abeles:

— if I might, I — don’t misunderstand me saying this, sir.

Usually, an author when they were (Inaudible) comes up, he’s pretty well up in years and our experience has been, he doesn’t usually marry after that.

A lot of the authors, famous authors, never did marry men and women.

I’m surprised and that’s the reason kinds of case becomes so important in the field.

Earl Warren:

Suppose he had married and suppose he had to had a child —

Julian T. Abeles:

Yes.

Earl Warren:

— what would the situation be as to that —

Julian T. Abeles:

Unless, I got the wife and child, I wouldn’t have anything.

Earl Warren:

The wife and child would not have anything?

Julian T. Abeles:

I wouldn’t have — no.

The — we wouldn’t have anything from the author because you cannot — he cannot take the rights away from the wife and child.

That’s a compulsory request as this Court held.

Felix Frankfurter:

In other words, if you — if what you said was an easy answer practically and the Chief Justice asked you, well, that was a legal answer, the assumption is if you — if what you regard is easy doesn’t happen in a particular case, the wife cannot be deprived of her rights under the statute.

Julian T. Abeles:

No question about it.

You see, our difficulty is, sir, this position.

Julian T. Abeles:

We cannot go to the executor.

We can go to the wife and go to the children.

We can’t go to the executor because the executor has to take an office.

He won’t take it, if a man dies.

So he is in far greater position than the wife and the children.

He never intended that, I’m sure.

Earl Warren:

Where under the statute, does it make any distinction between the wife and the children and — and the other — the other areas of law?

Julian T. Abeles:

In this way, sir, and as this Court has — has pointed out in the — in the De Sylva case, yes.

De Sylva-Ballentine, I’ll get there in a second.

You see it — it names the — it names the wife and the children first.

But that he says, if there are no action showed and then the — the other calls the executor.

In other words, the way the statute works is this, he cannot take away this right of the wife and child.

It’s a compulsory request to them.

It’s for their protection after he dies.

But if — what if he has no wife and child, then they give him the right to dispose of, they don’t care how he disposes that.

He dispose it by request or by assignment or otherwise.

But if he doesn’t, then I suppose, so that he won’t go into the public domain and who — whoever is next of kin maybe scattered through out the world or otherwise, they’ve held that this next of kin do acquire the right, if they apply for it within their 28th year.

But you see, the wife and children are mandatory because they’re before the executor.

In other words, the executor can’t — the — of the author cannot step in so through the executor unless there is no wife or child.

He cannot take that away from them.

Charles E. Whittaker:

As I understand —

Earl Warren:

Well, but —

Julian T. Abeles:

Could I have a little water please?

Earl Warren:

Oh, well — well, certainly.

That’s there for your —

Julian T. Abeles:

(Voice Overlap) can I take this?

Earl Warren:

— use.

Julian T. Abeles:

Thank you.

Pardon me sir, would you mind?

I’m sorry.

Charles E. Whittaker:

As I understand your position, it is this.

If — if I do correctly understand, that the wife and children are made preferred statutory beneficiaries of this renewal right during the period of the last year, if the author has earlier died.

Julian T. Abeles:

That is right, sir.

Charles E. Whittaker:

But that the right if — that is a wife and child as — as to the hands of the executor, if there (Inaudible) and if none, his assets in the hands of the administrator and set —

Julian T. Abeles:

No, not the administrator, no.

Charles E. Whittaker:

I beg your pardon?

Julian T. Abeles:

Not the administrator may I say so please, not the administrator.

No, just the executor.

Charles E. Whittaker:

Well —

Julian T. Abeles:

And then the wife or —

Charles E. Whittaker:

Oh, I will get to that later.

Julian T. Abeles:

And I — I was wrong with that, his assets are — that’s correct, sir.

I was sorry.

But what I meant was because the renewal of copyright, we go then, to the next of kin.

You said assets which are correct, I’m sorry.

Charles E. Whittaker:

Assets in the hands of the executor, if there’s — is one and if not, assets in the hands of the administrator through whom the errors of law, the next of kin, acquire the property, is that wrong?

Julian T. Abeles:

Everything about the renewals.

Not the renewal, sir.

An administrator cannot exercise any rights through renewal.

You see, they only say exactly, don’t say the administrator, so as to know exactly goes to the next of kin.

The next of kin, if there’s no — well, gets it.

Julian T. Abeles:

That’s right, sir.

Because it said, I — I probably didn’t make that clear.

I should have said that the statute says in the absence of a will, see, that’s my mistake.

In the absence of a will —

Put it in another — put it —

Julian T. Abeles:

— then the next —

Put it in another way, your position in drawing these distinctions, I take it is, that if the statute was designed only to prevent a lapse of renewal rights, unmature — unmatured renewal rights upon the death of the author, it would’ve been enough for the statute to provide that the renewal rights passed to his executor or the administrator, that’s your point isn’t it?

Julian T. Abeles:

That’s — yes — yes, sir.

To this ground, that is to say that if you didn’t make a will, which a lot of men don’t, of course, one reason or another, then it goes to the next of kin, if he hasn’t got a wife or child.

Julian T. Abeles:

And that’s when we saw, we signup the next of kin.

It would find it for itself of the statute (Voice Overlap) —

Charles E. Whittaker:

If I may ask you, is there any rule that — is there any rule that this asset is subject to appropriation for the payment of creditor’s debts?

Julian T. Abeles:

That’s never been determined, sir.

In this will, of course, like in all wills, he did say — start of by saying, that I am — first direct a payment of all my just debts and obligations and so forth.

They might come under that.

I’ve never — I have raised that point, it might.

In other words, it would seem to — in other words, though indirectly, I would say that’s correct, perhaps directly.

Because our position is exactly as I said before, takes through the author and the author haven’t made an assignment.

Anything the executor gets is subject to that assignment, because he takes the right of the author, he must take him subject to the assignment.

That’s my point.

Earl Warren:

Well, I don’t — what I’m trying to get at is how do you — that might be a theory, but how do you get that out of the statute?

The statute says that the copyrights secured by this title, shall incorporate 28 years from the day of the first publication.

In the case of any other copyrighted work, the author of such work is 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 a renewal.

Julian T. Abeles:

Yes, sir.

Earl Warren:

Now, how do you distinguish between — between those different groups of — of people there, insofar as the right to — to create renewal is concerned.

Julian T. Abeles:

Well, might I respectfully state that I don’t — I don’t have to jump to that point, because if there’s a widow or children, I have nothing to say.

That’s the end because he can now —

Earl Warren:

(Voice Overlap) —

Julian T. Abeles:

— then I get to the executor.

Earl Warren:

— the case here.

Julian T. Abeles:

Sir?

Earl Warren:

Citing to your case here.

Julian T. Abeles:

There’s no widow or children here.

I say if there was a widow or child, their rights would go to them.

I wouldn’t have anything through the — my assignment when the author has a — cut the widow child, a wife and child, would do the wife now.

So, don’t you don’t see judge — might I say, that it’s only if the — you see — you see, I’m — somewhere in my back of my mind, never thought, they did say I remember now, that the idea, I think, you mention — you mention, Justice — Justice Whittaker, yes, that if the — if the author did not take advantage of the fact that he could get money during his lifetime by disposing of these rights, then make a will or not, then it grant of course, and going to the public domain, it went to the next of kin.

That seems to be the idea.

I recall somewhere I read that.

So, in other words, it’s protected to go in the public domain.

Julian T. Abeles:

They said alright, whoever this next of kin are, let it go to them.

And that was the idea.

But don’t you see judge, Mr. Justice — Mr. Chief Justice, that if there’s no widow or a child, I’m going to point that out.

That’s your De Sylva case.

This Court specifically held in that case that in the absence — in the — that the — that the statute is a mandatory request to the widower and child.

And that the only restriction upon the assignment of the author’s interest in the renewal is for the protection of the widow and child in the form of compulsory request, is there.

That seems to be quite important.

I guess then that’s the De Sylva case.

Felix Frankfurter:

What you —

Julian T. Abeles:

Pardon me.

Felix Frankfurter:

Is your point that widow and children express human terms.

A widow is a widow and a child is a child, but an executor is a legal institution.

Julian T. Abeles:

That’s right.

Felix Frankfurter:

And an executor, by virtue of being an executor, isn’t a — a human institution, but a legal institution.

Julian T. Abeles:

Yes.

Felix Frankfurter:

And an executor can only guess what testator left him to get.

Julian T. Abeles:

Yes, sir.

Felix Frankfurter:

And therefore, if the testator, according to your view, has disposed of it, it couldn’t go to the executor because it’s no longer in the estate.

Julian T. Abeles:

That’s what the judge —

Felix Frankfurter:

And the widow is a widow by designation of the statute.

Julian T. Abeles:

That’s what — what Judge Washington said.

Earl Warren:

But a next of kin is a next of kin, too, isn’t it?

Julian T. Abeles:

Yes.

Earl Warren:

The same sense as a widow is a widow.

Julian T. Abeles:

Yes, sir.

Earl Warren:

And why — why do you separate the next of kin from — from a widow insofar as the right of renewal is concerned, when the statute says that either of them under certain circumstances can avail themselves of it?

Julian T. Abeles:

Well, I don’t come to the — I don’t have to come to the next of kin.

I think, I didn’t get that far in this case, sir.

You see, there’s no way to it and yet, as I say is compulsory request to the widow and child.

That was the idea of the statute.

Julian T. Abeles:

They — to protect them — but therefore, the author can do nothing to dispose of them without a right.

And if he has his widow or child, it goes to them, no question about it, but if he didn’t, then he has a right, why not.

In other words, why shouldn’t he enjoy that during his lifetime?

Here’s a man who’s unmarried, he has no wife or child, he has nobody particularly he cares of by worrying about taking care of perhaps.

And so, they say let him enjoy during his lifetime, say comes to a public, he comes to Motion Picture company, stage producing company, he gets them for a very large sums of money for these rights and enjoys them.

But what should — why shouldn’t he?

I mean, should it go to some next of kin he doesn’t care about in faraway lands or wherever they are, I mean some — there, the third cousins of somebody.

So I think that’s the idea.

Earl Warren:

Well, I think the answer to that would be that his — his right as the statutory right and he gets whatever rights are — are accorded to him under the statute.

Julian T. Abeles:

Only under the condition that the (Voice Overlap) —

Earl Warren:

(Voice Overlap) entitled to 28 years and if that 28 years expires while he’s living, he has a right to renew it and if it expires after he’s dead, something else happens.

Julian T. Abeles:

That’s right.

Earl Warren:

And I — I — the only question I want to have you explained to me if you — if you could, how the words of the statute give you the right to make these distinctions that you’re making?

Julian T. Abeles:

Well, because — well, this — this Court said in the De Sylva case sir, that the — for the reason the statute plainly imports that his protection of the widow and children, that was the uppermost state of their mind of — of Congress, and that they intend to protect the widow and children if they wanted, but they weren’t — then they gave the man the right to dispose of by assignment or request.

He could enjoy that during his lifetime.

But if he didn’t make an assignment or if he didn’t make a will however, you see by in another case, you held that the — in the Fisher — Fisher against Witmark case you held (Inaudible) — to appoint a special committee which is (Inaudible) committee with reference to the statute in which they — in which they said, that in the absence of a widow or child, then to the — then it permits the author to designate by will, the executor to apply for the renewal.

In other words — in other words, no widow or child, the man can do what he wants to that’s his — it’s his — he can go ahead then.

He could let him get the benefit of it.

But if he doesn’t do so, then they don’t want it to lapse because I’m only repeating myself, it goes to next of kin and that’s the distinction between the three.

They — they really done this.

In other words, two only comes to just being — if one — one, isn’t there wife and child, one.

Two, exactly, there must be no wife and child.

Three, the next of kin only if there are no executors, no wills, see?

Charles E. Whittaker:

Do you ever, in taking these assignments, just as a matter of curiosity and to the covenant that the composer shall by his will, if he makes one confirm the assignment.

Julian T. Abeles:

I gave that great thought as far as you — as far as you brought that up, because that has never sought the great deal of discussion.

We thought it’s far better to put in the general clause, which says, if he’s to execute, make and execute any or all further documents, is because the rights maybe necessary to perfect this, if this rather say the will particularly because they didn’t want a question of a breach of — of contract which is — and I know they were farfetched, but that was (Inaudible) And I thought that has do with the way I did.

I might be wrong.

Now, in the (Inaudible) case, did I mention that?

I think, I did, did I not?

Well then, it will only take me a second.

Julian T. Abeles:

In (Inaudible) as I said, the District Court’s determination is affirmed by the Court of Appeals, this Court denied certiorari.

In that case, they said, a man had left a family will — left the [Laughs] the renewal to his hometown of (Inaudible).

And the contention was that he, a sole right that — that an author has is a name the executor filed for the renewal.

That he has nothing that he — that the executor is in no position to act for him.

He cannot act for him.

And therefore, the executor was compelled to turn his rights so it’s a next of kin.

And the Court held that such a construction would deprive the author of the right to dispose of his renewal if his contract to congressional intent.

Now, in the Fisher against Witmark case, as I went to mention before, Mr. Justice Frankfurter made a various — history — exploitation of background, explained the background of the historical background of this section.

And he said in the final analysis that there would have to be expressly set forth in the statute, something, some wordings, somewhere, to prevent the author to make an assignment, that is to restrict his assignment.

Of course, there’s in that case, the man had lived — he had lived in that case during the 28th year.

But to say, but that they contend, you see it in a away that contention is exactly as the same because they contended that prior to the 28th year, this man had nothing he could assign, same as they contend here and Judge Bryant contended.

And therefore, even though he took out the renewal in the 28th year, he didn’t have anything before that so this assignment was worthless.

But the — this Court’s, Mr. Justice Frankfurter, writing the opinion said to the contract, that it would have to be expressed, any such restraint upon the assignment and that it certainly was not manifest.

Now, of course, they have to show somewhere, somehow, that the executor of this case had the right, his brother, to effectuate his transfer to his children, the children of his elder brothers.

They’ve already set, of course, that the executor requires no rights whatsoever from the testator, because the testator has nothing to leave up to the 28th year although this Court even have said to the contrary.

Now, and Judge Bryant said, and — and of course the majority of the Court of Appeals said to the same effect by (Inaudible) opinion, that the rights of vest — vest in the executor, the same as a widow or the children next of kin vest, these are his words.

And he says, the right standards solely from the statute independently, of any right of the author, of any right whatsoever of the author.

And might I say that Judge Bryant in fact, he — just one sentence, he speaks of defendant’s contention which he (Inaudible) important that if you don’t mind, I’ll read this, please this one line.

Defendant contends, this is at page 28 of the record, “Defendant contends that since a designated person, including the executor derived their interest solely and directly from the statute, the author may not, by a prior assignment, deprive any of them including the executor of the right which a statute expressly grants to them.”

In other words, he says — counsel says that is the opinion says, I’m sorry, that the author can’t tell the executor what he must do.

The executor is entirely independent that’s the judgment, entirely independent of the rights of the author.

He gets this from the statute do it to what he please.

Then therefore, the author could do nothing to deprive the executor of his rights.

I might be right if the widow happened to be the executor.

Julian T. Abeles:

Says that is true, sir.[Laughs]

Charles E. Whittaker:

Now, but then —

Julian T. Abeles:

And I wouldn’t be —

Charles E. Whittaker:

(Voice Overlap) —

Julian T. Abeles:

I wouldn’t be here though, if I didn’t have a right from the widow because I have — the widow would be really be entitled to it.

Felix Frankfurter:

She would get it because she was a widow —

Julian T. Abeles:

That’s correct.

Felix Frankfurter:

— and that’s because she was an executor.

Julian T. Abeles:

That’s what I meant, yes.

Charles E. Whittaker:

You’ve mentioned also that — you made some comment about the fact that the executor was the decedent’s brother, is that a matter of consequence here?

Julian T. Abeles:

Well, I wouldn’t say, no.

Of course, now, from a legal standpoint, it’s just rather odd, the whole situation, might it put it that way.

I have just — it was so odd what happened here, I mean, here’s a man, gives an assignment, we take it in good faith, he goes at it and makes a will.

Now, he might have — I don’t say, I don’t know.(Inaudible)

He didn’t make a specific request did.

Of this — of this — no, no he didn’t do that.

So, he might have intended that we get under will, that possible, because an absence of brothers just is shout that why should we get it.

After all, they’d rather turned over their children.

That’s only human.

That’s — that’s a human (Inaudible)

There’s another point I like to further say along the same lines and this is also only one sentence.

On page 11 of the respondent’s brief, he says that for the same effect, this is pretty strong, “The statute moreover, is not one which describes the rules for the test connected to his disposition, instead it creates a new and independent rights which are owned by the person or persons discussed, but otherwise the executor owns a right, so I don’t know.

Earl Warren:

I thought —

Julian T. Abeles:

I don’t think (Voice Overlap) —

Hugo L. Black:

The executor can hold (Inaudible) when you say the executor own —

Julian T. Abeles:

Yes.

Hugo L. Black:

It’s kind of training language a little, the executor may have a legal title but it’s not for the executor.

As I understand it, he’s arguing, it goes to the people that the executor was represented the next of kin.

Julian T. Abeles:

No.No, it goes to the people on the —

Hugo L. Black:

Well, I don’t — I don’t suppose he’s arguing the executor gets and keep it for his own advantage, does he?

Julian T. Abeles:

No.He does just justifies the executor (Inaudible)

Hugo L. Black:

He — he can do it.

Julian T. Abeles:

That officially is either the will of the executor.

Hugo L. Black:

That’s right.That’s the benefit —

Julian T. Abeles:

Not the next of kin.

Hugo L. Black:

But he’s claiming that the beneficiaries —

Julian T. Abeles:

That’s right.

Hugo L. Black:

And suppose —

Julian T. Abeles:

That’s right.

But I just sought the word, only, it’s rather odd, sir, I never saw he used with respect to the executor’s rights.

I never saw the word “vest” used, even.

It’s never — that got into penalty of any rights or the testator’s right on, I didn’t think it.

I mean, I don’t know, I just might —

Hugo L. Black:

Well, I don’t know about vested, I confess.

I’m not —

Julian T. Abeles:

Sure, well, for instance —

Hugo L. Black:

(Voice Overlap) —

Julian T. Abeles:

Well, may I say this.

Hugo L. Black:

Does in fact —

Julian T. Abeles:

An the executor only takes in trust, he doesn’t own these rights and if I might use that term, you — you understand I’m using, I mean oh, you know own means so that —

Hugo L. Black:

You mean the people (Voice Overlap) —

Julian T. Abeles:

— means are beneficial —

Hugo L. Black:

— would mean the people he represents not intended to be the beneficiary of the Act under these circumstances?

Julian T. Abeles:

Not intended to be —

Hugo L. Black:

The beneficiary —

Julian T. Abeles:

That’s right, sir.

I say that the man having made an assignment as a — as Judge Washington said that the executor is bound without assignment.

In other words, that the author can dispose of either by assignment or request and certainly by assignment so he can enjoy during this lifetime, as he had with widow and child.

Charles E. Whittaker:

In other words, the — if I cannot — the executor is the trustee, as I understand you, to carry out the directions of the will and a trustee has no beneficial interest, but only legal title and beneficial interest is vested in the beneficiary.

Julian T. Abeles:

Precisely, if I may say so.

Charles E. Whittaker:

As this Court has held in gift tax cases namely, on the number of occasions.

Now, gives to trustees of more than $3000 for multiple donees, when each has a $3000 exemption have been held be gifts to the beneficiaries, not to the trustee and there maybe taken as many deductions as there are beneficiaries.

Julian T. Abeles:

As one that Your Honors mentioned before, the executors in the same category of the wife and child and the next of kin, that people who get his rights directly, it’s their property.

The executor decides as — decides, Mr. Justice Whittaker, he — he just acts for the purposes of conduct, I think that word was used also.

It’s a conduct for the purposes of affecting the disposition by the author, that’s all.

He doesn’t own these rights, they’re not really vested on him and certainly, he didn’t get him the independently of any rights of the author, sir.

Charles E. Whittaker:

Well, normally an executor is more than a conduit though.

He has legal title and he must administer property and if necessary, sell it to pay debts etcetera, use some more than a conduit.

Julian T. Abeles:

Well, the — you understood how I used that word, I’m sure.

I — I — to the way I used it, I meant was, sir, not in the various statement he had to do, but I meant in the disposition of the property.

In the actual property, in these case, had taken and there were no alignments that he — and disposition of a known interest, the actual use of conduct if I may use that word.

Charles E. Whittaker:

I think —

Julian T. Abeles:

In other words, he has a means of affecting the disposition by the author, I’ll put it that way, I’m sorry, I used the word (Inaudible)

Charles E. Whittaker:

I think you take care of the package by calling him just what he is, that the executor, a trustee.

Julian T. Abeles:

Pardon me a second.

(Inaudible) I think, I mentioned before, but I’ll repeat it, that in Fisher against Witmark, this Court pointed out that the congressional committee — in the report of congressional committee, which was adopted by the Senate Committee, where they — they said, has intention of the statute to permit the author who had no widow or children decreed by will to the rights to apply for the renewal as we say to effectuate the disposition there of the renewal rights on behalf of the author.

Now, counsel argues, brings up the argument that on the same lines that the Chief Justice mentioned before and that is, he says, that we have to take the risk, it’s a gamble he says.

We can’t complain.

He says, “Alright, you took these rights from this man, he had no wife or child, and never mind his age or what he could have married maybe had a child and therefore, you lost him anyhow, so what difference does it make?

That’s a risk you take, it’s a gamble.”

But as I said before, we found as a practical proposition, we have no difficulty once you’ve gotten from the.

Often, you can understand that, if he will get the wife and the child.

Also to transfer of the rights over to us and we found that to be no difficulty as they said.

Now, but the — but what he doesn’t justify is this, this is a big point, I think.

That is how can an author as in this case, who has made an assignment by his own deliberate act, defeat that assignment by making a will and disposing these rights contrary to his prior disposition — and derogation, I should say, this prior disposition.

Now, Judge Bryant said, that he recognizes that this maybe in Congress.

Judge Washington says, “It’s not only in Congress, but in truth, out any legal justification.”

Now, as this Court said in National Labor Relations Board against the Lion Oil Company, in which they referred to the prior opinion in that — that — Master Plastics, the fact that it also against National Labor Relations Board.

They said that, “We have caution against accepting a construction of a statute where a — which were produced and in Congress result.”

Now, in closing, I — I think I should mention this, I don’t think it has a legal significance, but he makes quite a point of it, the counsel does in his briefs so, I think I’ll be permitted to answer, if I may.

He says in this case, 15 years ago, “We only gave $1000 advance for this kind against royalties, of course, therefore, this composition and several others — I cant see how the compositions meant nothing, because the fact, this is the only one we’re fighting over.

But that was 15 years ago and the cost today, if I respect — and might say so, as counsel for the Music Publishers Association which — to the membership which comprises I believe all leading publishers in the United States.

(Inaudible) Motion Picture companies, I know in my own knowledge, the very, very substantial sums of money have been paid to the last 10 years for their proposition of renewal rights upon the supposition over Fox Films against Knowles and Fisher against Witmark, there would be no question that that assigment would be valid.

Potter Stewart:

Well now, on the record in this case, the sums do not seem to be so substantial, it’s $1000 to some 18 — 18 songs, isn’t that right?

Julian T. Abeles:

But as I said, sir, that was a $1000 advance against — that was 15 years ago.

In those days, they didn’t pay him very much but all of a sudden, they have a right with association music and they send letters around.

Julian T. Abeles:

This association said, “Don’t — don’t let — don’t let writers, don’t go direct to the publisher, come to us, we’ll get you big money,” and they do.

We pay today $10,000, $15,000, $25000, $50,000 as a bonus for a very important song and the Motion Picture rights goes into six figures.

One, going at the wind which this case depends on, they had to take a renewal.

This woman, she — she was this writer, she didn’t have any husband, no children, they took her renewal quite loosely, under my advice.

If I lose this case just to bad for me that’s all.

But they paid (Inaudible) of the — you — you probably call gone at the wind.

They want to reissue this very valuable piece of property.

I respect to submit that the judgments be reversed.

Earl Warren:

Mr. Rudin.

Milton A. Rudin:

Mr. Chief Justice, Honorable Court.

I feel somewhat remiss that at this point that our brief perhaps did not cover to a greater extent the statutory history of Section 24.

We felt to a great extent, this had been set forth in Fisher versus Witmark and as Mr. Justice Harlan noted in the De Sylva-Ballentine decision and not repeating that statutory history that having been set forth, there was no need to set it forth again and even in De Sylva-Ballentine.

I’d like to advert to the history very briefly without going into the great detail which this Court’s opinion did in Fisher-Witmark by considering briefly, “What is the nature of a copyright?”

It is after all a congressional franchise.

It is the statement of property copyrighted.

Congress in Article 1 Section 8 provided for the protection of exclusive period of monopolies to promote the arts and sciences.

To a great extent, we adopted, pointed out in the Fisher-Witmark decision without detail, the statute then in the 1790 statute.

We had a 14-year term with a right to the author his executive’s administrator or assigns to renew for additional 14-year period if a contingency occurred.

The contingency had to be the author’s survival.

There is no —

Felix Frankfurter:

The statutes say that?

Milton A. Rudin:

Yes.

The author had to survive.

Felix Frankfurter:

Now, did the statute say that?

That if — if the author survives?

Milton A. Rudin:

It’s my recollection, Your Honor of the 1790 statute —

Felix Frankfurter:

Well I’m — I’m not questioning —

Milton A. Rudin:

Yes.

Felix Frankfurter:

— I just want to know.

Milton A. Rudin:

Yes.

Milton A. Rudin:

The statute made it clear that he had to survive.

There was a condition even he’s at — while he could assign it, there were certainly no limit on the assignability.

But still, no, they are only by contingency.

It was — that was a strange situation as I — I —

Potter Stewart:

In other words, if he didn’t — if he didn’t survive there was not renewal right at all, in anybody, is that what your point?

Milton A. Rudin:

That’s right.

And I believe there was another condition.

I believe he also had to be a resident in the United Stated, in the 1790 statute.

Charles E. Whittaker:

That’s the case then, as I understand it, where the right died with the person?

Milton A. Rudin:

That’s correct.

Well, he may not have even retained the right.

He may have assigned it prior to the expiration of the 14th year but whoever purchased it from him would only purchase a contingency —

Charles E. Whittaker:

— which expired at his death.

Milton A. Rudin:

That’s correct.

But if he survived and I believe with six months prior to that date, Mr. Ellsworth’s report which is the reference is in Fisher-Witmark to the place in the debates or the House reports.

Report before the 1830 statute recognized that there should be further protection and the 1830 statute extended the protection to the widow and children.

In other words, if the author would not living at the expiration of that particular period of time, then the widow or children — and this was really the same problem that came about in the 18 — the subsequent revisions.

The concept of just extending the protection to the widow and children without getting into the problem and/or which this Court has heretofore dealt with was in those two statutes.

Going beyond the widow or children did not come into being until the 1909 Act.

When you got the language of Section 24 which is now Section 23 which went on the — on widow and children, and said if the author, if there be no author, widow, widower or children, then to the author’s executor in any absence of a will to his next of kin and the problem relates to what was does that include, the author’s executor and next of kin.

It was a renewal copyright and again, it was a congressional grant for a second period and they are called depended upon certain matters happening, registration of the claim in the — during the 28th year.

There were differences also in the period of time, the 1831 statute had it for 28 years and 14 years for the renewal period and 1909 became to — to 28-year terms.

I don’t think there’s any problem and there should not be any problem of the question of the assignability of this rights.

It is not inherent to our position that there’d be any restraint on the assignability like this Court made it quite clear did notwithstanding what some people have interpreted or the minority view in which to have as this Court concurred in at that time, felt that there should be an absolute restriction against assignment.

This Court did hold that these rights were assignable and it so held in 1943 and if it had perhaps held otherwise, there would have not have been other problems but it’s so held and Congress has not changed the Act since that time.

And so, we have — to approach this problem that the author’s right is assignable, the widow and children’s right is assignable.

I believe the reference to be executor is really just a testamentary power of appointment to the author which is assignable but which was not assigned in this case and the next of kin who may not all be determined have a certain in court contingent right which is assignable.

And —

Felix Frankfurter:

The executor haven’t been named in the statute, there’d be no power of testamentary disposition.

Milton A. Rudin:

That’s correct, Your Honor.

Milton A. Rudin:

That’s exactly correct, but it’s a power of appointment and it was not assigned in this case and it is not inherent to our position that we are arguing against the assignability of these rights.

What we contend here is what has been assigned and that is the issue in this case because — yes, Mr. Justice Whittaker.

Charles E. Whittaker:

If — if it’s a power of appointment, it’s nonetheless to the executor as such, is it not?

Milton A. Rudin:

Correct.

The executor is — as Your Honor pointed out before, legal title exercising it for the benefit of those designated, the legatees.

He raised several questions along that line.

He raised the question of predators, what the predators would take.

Well, if the author exercise.

William J. Brennan, Jr.:

Well, May I ask you, Mr. Rudin, by whom is it assignable, the executor’s power?

Milton A. Rudin:

I think — I think, the power of appointment, I think it is subject to an agreement.

It’s not before the Court in this case.

I don’t believe it’s an issue here.

But, I think the power to leave a will, an agreement to leave a will should be assignable under federal law, under the copyright law based on Fisher versus Witmark.

If I am to examine that a little bit further at this point, Mr. Justice Brennan which I would —

William J. Brennan, Jr.:

I want to — I — I’m just interested, whom it would be that would assign it, this would be the author?

Milton A. Rudin:

That’s not the complete answer, I think.

William J. Brennan, Jr.:

I see.

Milton A. Rudin:

It would be the author under federal law but I think you then have to refer to state law under De Sylva-Ballentine.

If you decide and follow the philosophy of Fisher versus Witmark that in the absence of an express restriction against assignability, the right must be assignable.

Under federal law, we must then look to state law to determine if an agreement to assign or an agreement to bequeath would be valid.

And if in a particular case, the various formalities of such an agreement had been satisfied.

And in this case, interestingly enough Mr. Justice Brennan, even if we were to go that far because this is the thing that has interested us several times.

The original complaint in this case, transcript of record reference is on page 3, paragraph 9.

The allegation of the complaint was, Mr. Black bequeathed by will the right of his brother David Black, as the executor, in the Bank of America to apply for the renewal of said copyright, and said musical composition for on be — for and on behalf of plaintiff.

In other words, the plaintiff in this action started out on the theory that he was a legatee, that he was a beneficiary under the will.

But when in the trial court confronted with the fact he said might say — by saying that you’re a beneficiary, you should have come in the San Francisco Probate Court and claimed as a beneficiary.

You should have asked for this as the beneficiary if this was to be interpreted as an agreement to label well.

Not having done so, the decree of a probate court distributing this testamentary power, this property right acquired by virtue of the exercise of the testimony power, is a final judgment, it’s res judicata and your foreclosed.

Then he said, “Then when we find the argument that matters,” he said, “No, I’m claiming it by virtue of the assignment from the author,” ais assignment, not his assignment of his testamentary power of appointment.

And as to that, we say that assignment you got it, it was assignable but you just didn’t buy anything because it didn’t vest, you bought a contingency.

Milton A. Rudin:

The very nature of Section 24 in the absence over an express restriction against assignability prior to the vesting of the rights creates contingencies.

This was the argument of Mr. — Judge Frank in the dissent in Fisher versus Witmark in the lower court.

He said, “If you don’t restrict assignability so as you’re going to get to gambling, you’re going to have contingencies.”

This Court in its majority opinion was not impressed with that argument.

It said, “If Congress intended no assignability, then it should have said so.”

It is true, the value goes up.

If one were to write a book which a Motion Picture Company wish to make into a picture and the book had been out one year and had remained in 27 years in this country that’s beside the foreign situation.

The company would buy figuring 27 years is enough to exploit the book.

If the book is 15 years old, the company would face another problem.

It’ll figure what, “I can get the picture out in about two years, that’s 17 years, and least me about 11 years and I may want to exploit up to 20 years.”

If the man doesn’t live, I may not have anything.

True of — Mr. — Mr. Abeles has been many years more at the bar than I have but I have been active in the acquisition of acquiring rights and active in the selling of such rights.

Then we face such a situation in Lust for Life with an Irving Stone book which was recently a few years ago made into a Motion Picture, Mr. Abeles’ client.

They came to us and purchased the rights from the author.

They purchased to what rights from the widow.

They purchased the rights from the children.

They required an agreement to bequeath by will to them if there were no wife and children, the additional right.

They didn’t go to the next of kin but notwithstanding all of that in negotiating for the price to be paid.

The argument was made, we’re buying a contingency.

If I may say, life and death intervene and there’s another thing here since De Sylva-Ballentine in this Court which we have to admit and that Section intervenes.

The man has an illegitimate child, what they thought would be an exclusive grant would become a nonexclusive grant.

And if the wife and children were killed in a common disaster, the man might well remarry and die prior to the 28th year and the new wife would take, only, didn’t acquire from the next of kin suppose he didn’t leave a will.

It would be a contingency, I think they would become general predators of the State for breach of contract perhaps if the contract was otherwise enforceable in California but they would have not been entitled to specific performance because the executor or administrator took nothing in such an event.

Potter Stewart:

Well, the —

Felix Frankfurter:

Are there are other contingencies except these legal contingencies as the contingency as fashioned as the contingency of fluctuating public —

Milton A. Rudin:

Writings.

Yes.

Felix Frankfurter:

All those contingencies.

Milton A. Rudin:

Yes.

Yes, Your Honor.

Felix Frankfurter:

Or we can’t very well —

Milton A. Rudin:

We’re not dealing — in — in reality, if Congress intends that renewal periods should only be dealt with in terms of vested rights that you can’t assign futures.

Well, whatever my personal views may have been as to what would be the best face in approach to the law, Fisher versus Witmark has been on the books for some — almost 17 years now.

Legislation is —

Hugo L. Black:

(Voice Overlap)

Milton A. Rudin:

— pending, it hasn’t been changed.

But we have to deal with the fact, that there are assignability and there are contingencies but —

Potter Stewart:

There’s always a contingency at least hypothetically that there won’t be a renewal right, isn’t there?

There won’t be any at all (Voice Overlap)

Milton A. Rudin:

(Voice Overlap) completely.

Potter Stewart:

I’m — I’m thinking of the case of a man who dies without a widow and without a — without children, without a will so, therefore without an executor and without next of kin.

It’s possible, and — and — as a street case.

Milton A. Rudin:

A street case?

I had not to argue the case that you —

Potter Stewart:

Then there would be no right of renewal?

Milton A. Rudin:

That’s right and not to argue —

Potter Stewart:

And no matter how much you tried to tied up in any assignment agreements —

Milton A. Rudin:

That’s correct.

Potter Stewart:

— that there certainly wouldn’t be a right with a —

Milton A. Rudin:

Absolutely right, Mr. Justice.

Potter Stewart:

Am I right about that?

Milton A. Rudin:

And I didn’t want to go into the prior case that was argued but you — in effect you have this additional problem whether it’s a vested right.

Congress is granting a renewal period.

Now, suppose Congress takes it away two years before it vest, is there anything that the man signs a contract that he has a — an agreement from Congress, they are not going to change the renewal principles or in effect change it?

There has been considerable agitation on the copyright part to adopt the European system now, extending one term of copyright for life plus 50 years or some definitive terms if they don’t have to become concerned about the renewal period but that’s a matter for Congress whether or not there should be a renewal period.

Felix Frankfurter:

Well, you don’t think that really we can talk with any kind of issue in both reality that anybody can really be — as on safe ground as if he talks about the intention of Congress on this question, do you?

Milton A. Rudin:

No.I do not believe so —

Felix Frankfurter:

Alright.

Milton A. Rudin:

— Your Honor.

I think, you cannot got — get much help.

Milton A. Rudin:

Certainly, the appellant didn’t get much help from the congressional report from Your Honors opinion, you — he invoked it very heavily but Your Honor rejected the invocation in the Fisher-Witmark decision of saying, the intent was to make it not assignable, the benefit the widow of.

But — well, the only help we could get perhaps this one line, it says, it was not the same report in connection with the 1909 Act.

It was not the intent — it was not the intent to permit the administrator to apply for the renewal but to permit the author who had no wife or children to bequeath by will the right to apply for the renewal.

Felix Frankfurter:

You can get some — I mean, draw some inferences from the fact that when they came to reconsider the — the copyright law in 1831, they omitted the then living, the assignability of then living.

Milton A. Rudin:

Then living, yes.

But they also —

Felix Frankfurter:

That was — that was cutout from the 1790 Act.

Milton A. Rudin:

And also the executors, administrators or assigns phrase as — as a total phrase.

Felix Frankfurter:

But if one were to lean heavily, I don’t know how heavily.

It is a fact that up to 1831, he had to be living and you couldn’t then have argued the case if it’s not being argued.

Milton A. Rudin:

That’s correct.

If he had died, there would have been no right in anyone.

Felix Frankfurter:

Nobody.

Milton A. Rudin:

And we’ve not — we’ll not be here at all.

Felix Frankfurter:

That then living was a change in Congress, it isn’t arrived wide open.

Milton A. Rudin:

Yes.

Felix Frankfurter:

And to anyone.

Milton A. Rudin:

But extended it only to — as far as the widow or children.

Felix Frankfurter:

Well, that isn’t quite it.

They have said, “We don’t want the widow to lose because she might — might most need ir then.”

Milton A. Rudin:

That’s correct.

Felix Frankfurter:

But she now has it.

There’s no question.

You and Mr. Abeles have agreed that the widow gets the statutory unavailable right.

Milton A. Rudin:

Correct, Your Honor.

Felix Frankfurter:

Alright.

Milton A. Rudin:

No question about that and we say that those in whose favor the author exercised his testamentary power of appointment on the third step of the copyright, 1909 Act, are not — their rights are not defeated by a prior assignment of the right which never vested.

Felix Frankfurter:

But, what Congress — when Congress said, “We don’t want that between the widow and the — and the publisher, we prefer the widow.”

That was by putting in the executor, the author living can now (Inaudible) his widow, if I may use of all that phrase.

He is very — he can’t (Inaudible) the widow even by its deciding the testamentary powers.

Milton A. Rudin:

Unless he divorced her.

Felix Frankfurter:

What?

Milton A. Rudin:

Unless he divorced her.

Felix Frankfurter:

Well, if he chooses (Inaudible) so that, her rights in its (Inaudible) by the statute.

Milton A. Rudin:

That’s right and the children.

Felix Frankfurter:

And the quarrel really (Inaudible) what controversy in this case is, what — what the legal consequences are including the executor, is that right?

Milton A. Rudin:

That’s right.

What the consequences of including the phrase and if there be no author, widow, widower or children —

Felix Frankfurter:

Yes.

Milton A. Rudin:

— then to the author’s executor and I respectfully submit —

Felix Frankfurter:

It connection to that, I might ask you that one can get no life.

Milton A. Rudin:

That’s in prior to 1909 I — I — really don’t think —

Felix Frankfurter:

One can get no right from —

Milton A. Rudin:

Any statute.

Felix Frankfurter:

— by talking about the intention of Congress.

Milton A. Rudin:

I — I think not, Your Honor.

Felix Frankfurter:

None.

Milton A. Rudin:

I think, we can only —

Felix Frankfurter:

That if we have to construe, what — what words they used because they didn’t shed light beyond the words they used, isn’t that right?

Milton A. Rudin:

Yes.

You might get some help from the referral back to the 1790 statute.

I believe that would be strange a little bit to say, there, they used the executors, administrator assigns, and here, they just said executor.

I think the fact of —

Felix Frankfurter:

Well, but you —

Milton A. Rudin:

— almost drawing that concession —

Felix Frankfurter:

You get some — you get some like the other way because there, they require them to be alive for everybody.

Milton A. Rudin:

Yes.

That —

Felix Frankfurter:

They cut that out.

Milton A. Rudin:

They cut that out but here, Your Honor, they said the executor and they deliberately omitted the administrator.

Milton A. Rudin:

Now, why did they say the executor and deliberately omit the administrator.

Perhaps they did not intend that it become just another asset of his estate.

Why the distinction between an executor and administrator if it was not to have some significance?

And why the one sentence —

Felix Frankfurter:

Well, if — you stated the significance a minute ago.

Milton A. Rudin:

Yes.

Felix Frankfurter:

Even testamentary disposition.

Milton A. Rudin:

I believe so, that’s —

Charles E. Whittaker:

Well —

Milton A. Rudin:

— that’s whatever help I could get from the congressional intent.

Felix Frankfurter:

But I’m suggesting that by requiring that the author be alive at the termination date that — and one staff is deleted as it was in 1831, then it opens up in a way, the general problem that we have to face in Fisher against Witmark namely, whether this should be allowed at all.

Now, as you quite correctly say, you’re not arguing, you’re not re — raising that issue.

Milton A. Rudin:

Decided that and I —

Felix Frankfurter:

Alright.

Milton A. Rudin:

— I see no need to reargue it.

Felix Frankfurter:

No — no.

I’m not suggesting that.

Milton A. Rudin:

Nor do I think we need it for the position here.

We might put it — in other words, I’d like to clear it up for an opening, Mr. Abeles made a statement that would seem to shock me when he quoted Mr. Ladas and Mr. Ball as to what they said were the law applicable of what we are relying on that this was not a right that is assignable at all.

Nothing could be further from what the volume says.

Mr. Ladas in Harvard Studies of International Law points out in referring the renewal rights says, “It will be noted that the incoherent rights of these persons are personal and cannot be assigned.”

But he goes on to explain what he meant by that.

He says, “An assignee cannot obtain a renewal copyright merely in his capacity as assignee.”

He was talking about his function in filing the application.

That was his view at that time.

Nor can an administrator take out a renewal copyright for the general benefit of the author’s estate.

If the author has made a contract for the assignment of the right to obtain original copyright, and of the right to renew the same, he maybe compelled to carryout his undertaking by himself applying for renewal of the copyright and assigning it to the other party to the contract.

In other words, Mr. Ladas was not talking about the general contract law Your Honor, questioned about assignability but he was specifically referring to the mechanical exercise of the rights.

Felix Frankfurter:

Well, I understood that Mr. Ladas dealt with the copyright problem but it was — excited my curiosity of what Mr. Abeles read from Ball as a general proposition of property law which surely —

Milton A. Rudin:

Well, I’m sure Mr. — I — I think, I must also come to Mr. Ball’s defense —

Felix Frankfurter:

Alright.

Milton A. Rudin:

— since we cited him.

Felix Frankfurter:

But not by citing — but not by reporting that, I’m sure you wouldn’t defend to that one.

Milton A. Rudin:

No.

I — I’d like find it before I can re-quote it.

Felix Frankfurter:

Well, alright.

Milton A. Rudin:

It says, “If the author survives the first 27 years of the original term, a prior assignment of his expectancy is valid and enforceable but if he dies before the 28th year of the first term, the right to renew passes to his beneficiaries in the order on which they are mentioned in Section 23 of the Act, thus invalidating any previous — previous assignment of his expectancy.

Felix Frankfurter:

Well, does he go on and give the reason as to general law, the properties that you can’t assign something you haven’t got?

Milton A. Rudin:

Well, he went on to what reasons —

Felix Frankfurter:

And —

Milton A. Rudin:

— were argued but points out that this Court sort of rejected those reasons in Fisher versus Witmark.

There was this concept in thought.

There were — there were two misconceptions about Section 24 before this Court ruled and there have been three cases —

Charles E. Whittaker:

There were those of my brethren and he thought there were misconceptions in what this Court rules?

Milton A. Rudin:

Well, I’m confessed with the fact that if the present members of the Court who voted in that case with vote we might find that were reversed, Your Honor.

[Laughs] But in that if there were —

Felix Frankfurter:

— certainly personal data — were certainly interesting (Inaudible) data.

Milton A. Rudin:

[Laughs] But if they were the same mind then perhaps over the time — the point is the case has been decided, I think this is very persuasive.

Fisher versus Witmark was decided 17 years ago, if this Court misconstrued the congressional intent as to assignability, Congress has had 17 years to correct that misconstruction.

It has failed to do so to this date.

And so aside from any question of re-argument —

Felix Frankfurter:

I don’t think any — any bill relating to that subject would be considered around the clock, would it?

Milton A. Rudin:

No.

It would not.

[Laughter] I think we’d have great difficulty even getting some basic consideration.

That has perhaps been the trouble but I think the point made by Mr. — Mr. Judge Frank and adopted by the dissent is quite true that any absence of a restriction against assignability, you’ve got gambles in the copyright law and he made quite a fuzz about that in his minority views are — remember his — this shouldn’t be a gambling matter.

Well, there are many gambles in life, life insurance is a gamble in — in many ways in which you place a bet and hope that your opponent will win his bet.

In this case, you place a bet and you hope that you will win, you hope to acquire certain rights if you buy them in futural aside from the gamble of whether the styles were changed or whether you’re really interested in exercising the right you’ll acquire but I think the situation is this in Mr. Abeles’ case.

He gambled, there were four outstanding rights that Congress created which he could purchase.

There were tickets one, two, three and four, he bought a ticket on number one, the author’s right if he lived until the 28th year.

Milton A. Rudin:

I’m sorry, that offer did not make it so that ticket paid him nothing.

He couldn’t buy a ticket at number two at that time because the man had no wife or children that he knew of.

He felts quite confident that the man had bought a wife and his wife could be purchased for the same $1000 and get an assignment.

Didn’t think there’d be any problem by just confidence in the pliability of new wives is great, but nevertheless, he would have had to purchase something but he didn’t buy it.

But that never came into being but he did not buy number three and that is the testamentary power of appointment which he did not put in the will.

He — he intimated that the will should be so interpreted or his assignment should be so interpreted.

I submit clear language of the assigment does not give him that comfort and even if it did, he would run into the California problem that — as a legatee.

There is a claim legatee’s foreclosed because he has never made his claim, and there’s enough claim.

He’s never come in and there’s been a decree of distribution.

The fourth, take it to the next of kin, he bought but that one lost too because the author left a will.

He could have perhaps bought all four tickets and still have lost.

And this is — this is the — the interesting problem.

Suppose Mr. Black had bought all three tickets, suppose he had contracted with Mr. Black to leave a will designating Miller Music as the beneficiary of the exercise of this right.

Could Miller Music required Mr. Black to agree not to marry and not to bear children until the vesting of renewal right until the 28th year?

It seem to me that might be a contract against the public interest.

There is just no way as long as you can assign prior to the vesting of the right and the vesting of the right depends upon certain conditions.

There is no way to control those conditions because they deal with human elements and therefore, there is no positive acquisition of a right when you buy it prior to the 28th year.

Charles E. Whittaker:

May I ask you in this connection, Mr. Rudin please?

As I understand, you do not question the fact that the author’s death prior to the 28th year leaving neither wife nor child ended all rights to renewal but that something the right did continue.

Milton A. Rudin:

No.

I don’t concede that it did end all rights to renewal.

It left the author with a power of appointment to be exercised by his will.

Charles E. Whittaker:

Now then, appointment you say was that — that the right to leave it to the executor was in the power — a power of appointment?

Milton A. Rudin:

I don’t really think, I think the executor was the vehicle, was the man that held legal title.

I think it was the legatees under the will.

I think —

Charles E. Whittaker:

Well —

Milton A. Rudin:

— that’s what the (Inaudible) case held.

Charles E. Whittaker:

Well, now let’s see.

The statute says that the author of the work if still living or the widow, widower or children of the author if the author be not living now or if such author, widow, widower or children be not living, then the author’s executors.

Charles E. Whittaker:

Or in the absence of will, the next of kin shall have this right of renewal.

Now then, do you say that the death of the testator — of the death of the author without wife or child prior to 28th year extinguished all rights of renewal?

Milton A. Rudin:

I do.

It extinguished all rights of renewal that the author had.

It extinguished it on step one to the author if he’d be living.

It did not extinguish the widow’s rights until there were no widow or children.

Felix Frankfurter:

Your in — your interpolating if he’d be living.

I mean that’s your argument.

Milton A. Rudin:

But it says if he’d be living at the first sentence.

Felix Frankfurter:

What?

Milton A. Rudin:

In the first sentence of the Act, Your Honor, the statute, it says if he’d be living.

Of course, step one —

Felix Frankfurter:

It says, yes.

But —

Milton A. Rudin:

And I’m — so I feel that that’s the rhythm of it and not an interpretation.

Felix Frankfurter:

Certainly, our first claim if he’d be living but you — you don’t carry that over to the other, you don’t qualify that in the reference for the rest but he may do —

Milton A. Rudin:

I don’t see how I could if he couldn’t very well have an executor and still be living.

Felix Frankfurter:

No.

But — but that doesn’t deal with the question whether while living he makes a disposition beyond his death.

Milton A. Rudin:

What — but what if he make a disposition, that was the question.

I feel that goes back to the basic question.

Felix Frankfurter:

That all depends how we construe the statute and you can’t assume the conclusion and argue there from — he hasn’t got anything and those questions or the — the statute doesn’t give him something because the statute projects itself beyond his death, certainly, as to the wife and the children.

Milton A. Rudin:

But the statute —

Felix Frankfurter:

And as for the executor, it projects itself.

So, it does deal with a term beyond his living.

Milton A. Rudin:

Yes.

It deals with a term beyond his living and it imposes another condition upon the author that he leave a will, it gives him another right.

Hugo L. Black:

Well, does it — does it at the end it says and asking for the will, his next of kin.

Milton A. Rudin:

He may have disliked his next of kin tremendously —

Hugo L. Black:

(Voice Overlap)

Milton A. Rudin:

–if he didn’t leave a will, they would get it, Your Honor.

Hugo L. Black:

Yes.

But suppose he didn’t leave a will, they’d get —

Milton A. Rudin:

Then his next of kin would get it whether he liked it or not.

Charles E. Whittaker:

Then didn’t something survive his death even though he left no widow or child.

Milton A. Rudin:

Correct.

I submit the testimony of power of appointment, the right to leave a will to stop his next of kin from getting it.

Charles E. Whittaker:

But —

Felix Frankfurter:

Well, but that doesn’t answer whether he may have disposed of that power by doing something in his life.

I’m not saying it does.

All I’m saying is —

Milton A. Rudin:

Yes.

Felix Frankfurter:

— all I’m saying is that the case is not disposable by that kind of logical reasoning.

Milton A. Rudin:

I think, perhaps so, Your Honor.

But and may I respectfully submit two points in answer to that.

And that is, one, that if this right was assignable, this power, did the present instrument accomplish that at all (Inaudible) required by contract to agree that he will leave a will, naming an executor authorize the executor, renew the copyright and transfer it to his assignee.

He agrees to bequeath and it’s a separate assignable right.

He agrees to transfer his right if he lives and he agrees to bequeath if he dies.

And the second answer to that if I may respectfully submit, Mr. Justice Frankfurter, is that in this case, we only mentioned the point because under the theory of the District Court, he rejected our California argument as I — I call it.

His — he said, “The author’s death prior to the 28th year met the — the assignment in this case conveyed nothing because the author died and that the people who are the legatees therefore, get the right that the executor had, are not bound by that prior assignment.”

Felix Frankfurter:

Am I to infer from what you said that the — that the author could make a contract binding his executor with the creation of a right for specific performance by the assignee so far?

Milton A. Rudin:

No.

I did not — I did not submit specific performance in my statement.

Felix Frankfurter:

Well, but by specific performance I mean that he could get a renewal that the executor would have to in his designated capacity as for the renewal and then transfer it, that’s was I loosely called —

Milton A. Rudin:

I’d like to —

Felix Frankfurter:

— in effect, specific performance.

Milton A. Rudin:

— I’d like to answer that in three steps.

Yes, under the copyright law that it would be possible, two, you’d have to refer to the state law to see if the state law will permit it.

I submit, under the authority of De Sylva-Ballentine that once you have —

Felix Frankfurter:

That question isn’t here?

Milton A. Rudin:

That question isn’t here though, Your Honor.

That’s the point.

Moreover even —

Felix Frankfurter:

All I’m saying is, I’m — I’m interested in your argument that this could be accomplished by making an arrangement using a neutral term, an arrangement in the light of the author who predeceases his 28th year and yet have to be effectuated by the executor so that the assignee have to almost get the reality, namely the assignment.

Milton A. Rudin:

If — if under particular state law he was able to buy the right to — to inherit by will, if he was — I could go to a man and say, “I will give you” and it’s done.

Let’s give the typical example of some of these annuity policies or all the folk songs, where they go to someone who say, “You turn over all of your assets or you give us $10,000 or if we renamed as his beneficiary of your — of Black then — then we will support you for the rest of your life.”

It’s an agreement to live a will.

The California law, if certain formalities are observed, it is a proper agreement.

Felix Frankfurter:

Well, I should think it raises a number — created a number of questions that we did not decide or face in De Sylva that you could so construe the copyright law that you could work out an assignment that after the author’s death before his 28th year in some states not in other, that would give me a lot of trouble myself.

Milton A. Rudin:

Well, Your Honor, perhaps so and perhaps it should be a matter of state law — a — a federal law that is not assignable.

Felix Frankfurter:

Well, we — we have to catch all that out of the air in dealing with the question whether an author who dies before the 28th year can effectuate the contingency to fall into the hands of his or for shorthand called assignee.

Milton A. Rudin:

It might be the next case this Court would have to decide —

Felix Frankfurter:

Well —

Milton A. Rudin:

— it’s not present in this case, Your Honor.

Felix Frankfurter:

No.

But —

Earl Warren:

Well, is this case on all force with Fisher in your judgment?

Milton A. Rudin:

Some all force with respect to the fact that in the Fisher case, this Court simply held that there was no restriction on the assignability of the future contingent right that a man could assign his renewal right prior to the time that vested.

Earl Warren:

Yes.

Milton A. Rudin:

But the Fisher case went on to recognize that if he died prior to the right vesting, the assignee took exactly nothing because the right didn’t vest.

That’s as far as the Fisher case went.

Felix Frankfurter:

The Fisher case decide this case by dictum?

Milton A. Rudin:

No, Your Honor.

I don’t — I don’t think the Fisher —

Felix Frankfurter:

Closely reprehensible then.

Milton A. Rudin:

No.

I don’t think — yes, it would — it would be but I’m afraid it was the — I believe my recollection was the — the dictum but —

Felix Frankfurter:

(Inaudible)

Milton A. Rudin:

I take it back.

Your Honor showed greater care of than the Court of Appeals.

Milton A. Rudin:

There was the argument —

Felix Frankfurter:

I had hoped so in that —

Milton A. Rudin:

Yes.

I apologize.

[Laughter] The brief — the brief did argue — the brief of the respondent did argue.

Of course, if the author assigns the renewal term but does not survive, the assignee’s whose rights cannot be greater than the author’s will take nothing.

That statement also appeared in the Court of Appeals decisions, my apologies, did not appear in your opinions, Your Honor.

Hugo L. Black:

Did I — did I —

Milton A. Rudin:

I assumed it was — it — it has been so often quoted as having appeared in that opinion that I was almost made to believe.

Felix Frankfurter:

Very responsible for all the misquotations by even eminent members of the bar.

I see even less that, worst — worst and argue about my performances.

Milton A. Rudin:

But — but be that as it may, the Fisher-Witmark case did assign that it was — I feel cited only one question that it could be assigned prior to its vesting.

And that was the only (Voice Overlap) Fisher-Witmark case.

Hugo L. Black:

(Voice Overlap) you say while ago but it’s made and he has a wife really.

What did I understand you to say about that?

Milton A. Rudin:

If he has a — if he has a wife —

Hugo L. Black:

And what about the assignment if he has a wife then?

Milton A. Rudin:

Well, he would have to get it from the wife because if the wife would then get it, wife or children.

Hugo L. Black:

And then the children.

Milton A. Rudin:

Well, not in then — I’m sorry, Your Honor.

Hugo L. Black:

What?

Milton A. Rudin:

Not — not in then, the wife and children in the same class.

Hugo L. Black:

Well —

Felix Frankfurter:

Now —

— I’m — I’m not talking — (Voice Overlap) I’m not talking how they do it.

Milton A. Rudin:

For the last few years my — I — I must have —

Hugo L. Black:

For getting —

Milton A. Rudin:

— hope it to remain the same.

Hugo L. Black:

I want to move on — definitely that deals because I don’t quite understand your distinction.

Yes, do you say that the wife and children and what about the next of kin when you go down and he has no will?

Milton A. Rudin:

Only if he fails to leave a will.

Hugo L. Black:

Alright.

He fails to leave a will.

Milton A. Rudin:

Then the next of kin would take it.

Hugo L. Black:

They’d have to get it.

Is the assignment good against them?

Milton A. Rudin:

No, it would not be.

Hugo L. Black:

Not good against them.

Milton A. Rudin:

No.

And I think, the petitioner —

Hugo L. Black:

Is it any different?

Milton A. Rudin:

— is here to concede that he says he protected himself by getting an assignment from the next of kin.

Felix Frankfurter:

Then we end up that way.

Milton A. Rudin:

No.

It’s not here.

Hugo L. Black:

(Voice Overlap)

Felix Frankfurter:

— because of here here.

Hugo L. Black:

Is there a difference to be (Voice Overlap) —

Earl Warren:

And there we have Fisher either, did you?

Milton A. Rudin:

For — for me —

Hugo L. Black:

Is there any difference in that in practical effect in the claim of the executor?

Milton A. Rudin:

No.

I don’t think there’s any difference.

I think that —

Hugo L. Black:

The claim of the executor of course would be for whoever the beneficiaries are.

Milton A. Rudin:

I believe the executor represents the first of the beneficiaries in this case and not the person of the testator.

That’s the difference.

I think if I — Mr. Justice Frankfurter, said in question, the executor is a legal institution, he must represent something.

You can only get what the decedent had.

And I differ in that respect to some extent, Mr. Justice Frankfurter because — let’s take a common situation of a power of appointment in the will where a man is given the life interest but no right to invade the corpus.

Milton A. Rudin:

But it is provided that he may on his death, by will, executed the due formalities of the state in which he lives, exercise a power of appointment to distribute the corpus of the trust and direct his executor to do so or should go to his executor for that purpose.

Or he might under some constructions and under some trust even exercise it to become part of the general assets of his — his estate.

It’s a very common thing these days.

We’ve had with men who put their assets in the hands of a bank, say even in a irrevocable inter vivos trust to provide for a power of appointment he exercised by will and he exercise that power of appointment in favor of their executors for the purposes set forth in the will.

Hugo L. Black:

May I ask you one other —

Milton A. Rudin:

Might be (Voice Overlap) purposes.

Hugo L. Black:

— other question, I don’t get quite understand.

Do you draw, I understand, or does the other side draw any distinction between the right of the next of kin and the executor?

Milton A. Rudin:

Yes.

I believe they do, they must.

They draw a distinction between the right of the next of kin and the right of widow or children and the executor.

They say, that they recognize that if the author’s inter vivos assignment, the author’s assignment tenure’s life prior to the 28th year, and if he dies prior to the 28th year, does not defeat the rights of the widow, widower or children but defeats the — or the next of kin.

Hugo L. Black:

Or the next of kin?

Milton A. Rudin:

Or the next of kin.

We concede that.

Hugo L. Black:

Well — well, do I understand then that they say that it doesn’t defeat the right of the next of kin?

They can get it if he makes no will despite the assignment.

Milton A. Rudin:

That’s correct.

Hugo L. Black:

If he makes a will, he somehow cuts off the beneficiaries even if they are the next of kin?

Milton A. Rudin:

Yes, because here in this particular case, they had an assignment in the next of kin and they are not asserting their rights under that assignment.

Felix Frankfurter:

But — but you don’t — in your view doesn’t give anything to the next of kin, does it?

Milton A. Rudin:

In my view in — in what under the facts stated by, Mr. Justice Black.

Felix Frankfurter:

No.

Your — on — in this case?

Milton A. Rudin:

That’s right.

Felix Frankfurter:

–Because — because the — this — because the testamentary disposition deter — controls the whole disposition.

Milton A. Rudin:

Steps three came in beforehand, yes Your Honor.

Hugo L. Black:

Well that, suppose he had made his next of kin the beneficiary.

Milton A. Rudin:

I believe that there’s —

Hugo L. Black:

Would that make any difference?

Milton A. Rudin:

I don’t — it might have made a difference but not as a matter of copyright law.

It would’ve made a difference based on the instrument, the matter of general law interpreting —

Hugo L. Black:

I’m talking about —

Milton A. Rudin:

— the instrument.

Hugo L. Black:

I’m talking about this law.

Milton A. Rudin:

But under this law, I don’t think it would make any difference.

Hugo L. Black:

If it gives the right — what I’m — I — I couldn’t quite understand if —

Milton A. Rudin:

But they wouldn’t take his next of kin.

Felix Frankfurter:

They wouldn’t —

Hugo L. Black:

If —

Milton A. Rudin:

That’s the point.

Hugo L. Black:

If the next of kin by reason of this statute cannot be cutoff by the assignment, why can those be cutoff from the executor, represents as the executor?

Milton A. Rudin:

Well, I — because —

Hugo L. Black:

What is the argument?

Milton A. Rudin:

Because Congress could’ve well said that in the absence of a will, it should go to the Library of Congress for the benefit of buying books or general fund or for charity.

Instead, Congress passed it on to the next of kin only, but only in the event.

The author did not exercise his testamentary power.

Hugo L. Black:

But what about the executor, they only passed it to him if — if he did exercise his testamentary —

Milton A. Rudin:

I believe they passed it to the executor in his capacity, his illegal institution not beneficially.

I agree that he did not get it beneficially.

In his capacity as a legal institution as Mr. Justice Frankfurter put it but not as legal institution representing in this case, the person of his testator but as a legal institution representing the rights of the legatees under the will.

Charles E. Whittaker:

You would have to make some distinction that’s in light of the fact you don’t get.

You say that those two, the executor here, under the exercise by the testator of a power of appointment.

Milton A. Rudin:

That’s correct.

Charles E. Whittaker:

Now, isn’t that the mere name, you have a right to any — any executor’s requirements field, the exercise of the power of appointment in the sense you used that term.

Milton A. Rudin:

Yes.

It’s a right.

My —

Felix Frankfurter:

From any executor.

Milton A. Rudin:

They —

Felix Frankfurter:

And that was —

Milton A. Rudin:

Name an executor and under the (Inaudible) case to designate who shall receive the benefits of that.

Charles E. Whittaker:

Well, of course the executor appears on the will — will —

Milton A. Rudin:

That’s right.

Charles E. Whittaker:

— and with the power of appointment, the sanction here is that power to name (Inaudible)

Milton A. Rudin:

That — that’s right.

Charles E. Whittaker:

Now, you mean that true, in just every case with an executor’s name?

Milton A. Rudin:

Yes.

Charles E. Whittaker:

What’s the difference between this and in the other (Voice Overlap)

Milton A. Rudin:

Well, let me — let me illustrate it directly with copyright law, Mr. Justice Whitaker.

Let us assume in this case, “Moonlight and Roses”, the man or any copyright.

The man has no widow or children and the copyright is in its 10th year of the original term and he owns the copyright, he’s publishing it himself.

He leaves to his executor the remaining 18 years of the original term.

He lives it to his executor, the same manner that he could have assigned it to him.

And the executor takes that right in the same manner that he might also take Black Acre or 100 shares of General Motors at the (Voice Overlap)

Charles E. Whittaker:

Any asset.

Milton A. Rudin:

Any asset.

Charles E. Whittaker:

Revisable asset?

Milton A. Rudin:

Right.

But the asset involved here is not one that the man owned.

It’s a privilege extended by Congress.

Felix Frankfurter:

But — but isn’t — isn’t that what the whole litigation is about?

Milton A. Rudin:

Well, I at least —

Felix Frankfurter:

— maybe what you just said.

Namely, what it is that his got and what it is he can dispose of?

We have to decide that before we get into all these other —

Milton A. Rudin:

Correct.

I —

Felix Frankfurter:

— discussions.

Milton A. Rudin:

And we respectfully submit that if Congress, if you look at the purpose, if — if you have the widow and children first, why did the Congress say, executor and not at — to his estate or not to his executor’s administrators or assigns if they intended that the third class as I put it, was of the same nature of the first class that the only thing that stopped it from merging together was the second class, the widow or children.

Milton A. Rudin:

I submit — I admit the Court has to decide it, that’s why we’re here but I respectfully urge upon the Court that the construction must be that because of the intervening class and because of the schedule of rights.

Felix Frankfurter:

Well, I — I must say I can — I can understand why you’re here and the argument your making but I can’t understand that I’m on the logic of compulsion to hold that because Congress said we are going to protect the man’s wife and his children, but we also give him the right to cut them off if he wants that and we also give him the right respecting that to make such other disposition as he wants to make, cut out all his next of kin and everybody else.

That’s true as far as —

Milton A. Rudin:

I respectfully submit that is the position.

Felix Frankfurter:

Well —

Milton A. Rudin:

Congress gave him two rights in Section 24.

Felix Frankfurter:

But It doesn’t — from that I can’t — you draw — you say I’m on the logic of compulsion therefore to hold, that he cannot limit the — that (Inaudible) power, the power to leave things by will or his protecting the wife and children.

He cannot withdraw or limit or deprive himself of that by selling it from — with cash in his lifetime.

Milton A. Rudin:

That’s not quite what I’ve said, Your Honor.

Felix Frankfurter:

I didn’t say you said that.

And you say practically, —

Milton A. Rudin:

I thought — I would like —

Felix Frankfurter:

I did understand you to say that because of one and two, that sheds light on three, is that right?

Milton A. Rudin:

I said, one and two would shed light if three is a different animal than one.

Felix Frankfurter:

And —

Milton A. Rudin:

(Voice Overlap) The three is a different animal.

The three — three is a power, one is a — is a grant of the direct right and I urged and I feel that it is not before this Court to decide whether he may convey one and three.

There are two rights given to the author and step one, to take the copyright himself if he survives the 28th year and step three, that if he doesn’t survive, it doesn’t have a widow of children to intervene, that bequeath by will.

I submit that both rights under the logic of Fisher versus Witmark, if one right is assignable, perhaps the other should be assignable but the Court need not decide that in this case.

Felix Frankfurter:

I agree with you.

I quite agree with you.

Milton A. Rudin:

But right, we submit that rights —

Felix Frankfurter:

That I also agree with you that I mustn’t decide it your way.

Milton A. Rudin:

No.

[Laughs] I appreciate that but I submit Your Honor that right one and three being different.

And the Court, I submit looks to the instrument under which the appellant claims here and he sees that he acquires only right one that he did not bargain for nor obtain right three.

Felix Frankfurter:

Well, that’s an — that’s a very different argument.

That would — they are different aspect of your position, namely that he really — he could have assigned — he could have effectuated in his lifetime.

He get the power of renewal after 28 years although he is dead in the meantime.

Milton A. Rudin:

Yes.

Milton A. Rudin:

He could.

Felix Frankfurter:

That argument, as he could’ve but you say he didn’t do it.

Milton A. Rudin:

I say he did not —

Felix Frankfurter:

Alright.(Voice Overlap) —

Milton A. Rudin:

— do it under the facts in this case.

Felix Frankfurter:

That is totally different —

Milton A. Rudin:

Yes.

Felix Frankfurter:

— but they carry your — that they feel but all I’m saying that that does start with the proposition with the recognition that he could in his lifetime.

Not reaching the 28th year — not reaching the 28th year, he could have disposed of this contingency in his lifetime, so he predeceased its occurrence.

Hugo L. Black:

Do you agree to that?

Milton A. Rudin:

I — if I would agree to that, I might be deciding the fifth case that has to come before this Court because it’s not before —

Potter Stewart:

Your argument is that assuming that he could do it, still, he hasn’t done it (Voice Overlap) —

Milton A. Rudin:

He hasn’t done it and I don’t feel —

Potter Stewart:

— into this case.

Milton A. Rudin:

I don’t want to get into the situation I feel that Fisher, if you’re asking my opinion as a lawyer, I would like to answer it and not avoid Your Honor’s question.

I feel under the thrust of Fisher versus Witmark, one must say that that right is also assignable.

I think correctly or incorrectly, the copyright bar had been working upon that assumption in carrying Fisher versus Witmark further.

Now, whether they are correct and not as fort this Court to say and not for counsel here to say of what — what you —

Felix Frankfurter:

I think that’s a very fair statement.

Hugo L. Black:

What you’re say — what you’re saying then here is that all we have here is a case where the right time the contract was not drawn and it’s probably this case, it’s empower to be granted I suppose.

Milton A. Rudin:

Well, the counsel —

Hugo L. Black:

Having been that here, a question of how you’re going to construe a contract that —

Milton A. Rudin:

That phrase frightens me somewhat having been counsel of Hammerstein versus Superior Court shortly after leaving law school.

I — I don’t think the — the writ in improvably granted here, it is a federal question, the — not a jurisdictional problem but perhaps this Court should not have granted hearing in this case, yes.

I think, it’s just a question of interpretation of contract.

Felix Frankfurter:

It — it doesn’t require a great professional courage to take that position.[Laughter]

Milton A. Rudin:

I’m sorry but the question was put, I have to get —

Felix Frankfurter:

There’s no need to worry.

You should have great professional courage.

You are here to win a case.

Milton A. Rudin:

Yes.

Well, but I have to answer that (Voice Overlap) quite frankly, Your Honor and I —

Felix Frankfurter:

I — I respected the whole of your argument.

Let me face —

Milton A. Rudin:

Thank you very much.

Charles E. Whittaker:

That is — is —

Milton A. Rudin:

Wanted by the statement.

Charles E. Whittaker:

May I — is that to say that you’re here, this is just to construe a contract, is that to say that you do not regard Section 24 as ambiguous?

Milton A. Rudin:

Well, I might give you about 20 different ambiguities in Section 24 but not on before the Court at this time —

Charles E. Whittaker:

That the —

Milton A. Rudin:

But I think that it’s all ambiguous here.

I think it is not ambiguous, I think it setup four classes of rights for this question in this case.

Charles E. Whittaker:

Yes.

Milton A. Rudin:

I — the columns that I as practitioner have to face in interpreting Section 24, I would love to have this Court’s advisory capacity.

So —

Charles E. Whittaker:

And down this —

Milton A. Rudin:

— I can safely advise my client.

Felix Frankfurter:

More profitable for you that we don’t.

[Laughter]

Charles E. Whittaker:

And down the —

Milton A. Rudin:

I believe so, Your Honor.

Charles E. Whittaker:

I feel bound to say I agree with you.

I do not think the statute is ambiguous as related to our question.

Milton A. Rudin:

As related from the question here whether you — whether I am to interpret that statement as you’ll agree with me, [Laugher] direct me in the dark.

Hugo L. Black:

And suppose one — suppose one disagrees with your interpretation of the contract, have you any argument then?

Milton A. Rudin:

Yes.

I do Your Honor.

I believe then that we come up to a question which should — should really not be before this Court but which we’ve cited authorities below that the appellant would be bound by the judgment of the Superior Court in California which distributed the right which the executor exercise.

This copyright was renewed by the executor, went into the estate.

If you interpret the instrument as an agreement to leave a will then it becomes a question of state law whether it complied with those aspects of it and then under state law becomes a further question if he is not bound by the decree of distribution distributing it for the nieces and nephews.

Milton A. Rudin:

See, what happened here was, they got it from three brothers and the man quite naturally having brothers have the same ages as he was, made a general request, some specific request and left everything to his nieces and nephews, those are nephew — nieces and nephews that took the right that was exercised by the executor.

But we do get a question of state law if you want to interpret the instrument but it has not been urged.

He started out urging that but when faced in the lower court unless the res judicata question departed from that and has rested this case.

I submit solely, on the assignment of the author which is step one in which assignment I say never vested that right, never vested because the man died before the 28th year.

Then the widow, child — the children came in since their being not — we went to the third step, the author’s executor and as I hoped that I have now made clear and I apologize if I did not make it clear before.

We’re not arguing that the author during his lifetime could not assign that right but we say, the Court doesn’t reach that question because he didn’t assign it.

Hugo L. Black:

Are you — I — I want that clear.

Do you understand that the Witmark case held that — and you’re barred from challenging it on that term that a man in his lifetime would make an assignment which, of his bar or to those claims.

He died having tried to make it a — make a will after that to give it to somebody else.

And you understand that the Witmark case holds that he could not do that?

Milton A. Rudin:

I do not so understand the Witmark case.

I understand the Witmark case is deciding the facts in that case to with that the man survived the 28th year and that his assignment prior to that date was binding upon him.

And the Witmark case and —

Hugo L. Black:

(Voice Overlap) —

Milton A. Rudin:

— to that regard here, go one step further with the Witmark case though, I will confess the commentators have.

And it has been quoted to the proposition that you have given Mr. Justice Black.

Hugo L. Black:

But, I’m asking him because I — I’m —

Milton A. Rudin:

Well, I can’t say, Wit —

Hugo L. Black:

— a little confused by quite different to my brother, I’m a little confused in that position by the statements you made.

I find it a little difficult to say as the lawfulness this assignment to be made so then take effect so as to bar the executor claiming the rights.

I find it a little difficult to say it has got to be in certain kind of language with reference to the appointment itself.

I find that a little difficult.

Milton A. Rudin:

Well, Your Honor, can I give you this?

Hugo L. Black:

And I find it far more difficult than I would maybe it’s because I just said it in the other case.

Milton A. Rudin:

Yes.

I’m aware of that Your Honor but —

Hugo L. Black:

On the — somewhat believe that the mere fact if the case held there could be an assignment, does not mean now that I have to say that it also deprives the man of making a will which would designate someone else to receive it.

I had not understood the Witmark case to go that far, maybe it does.

Milton A. Rudin:

Well, I don’t think the Witmark case went so far because what I’m getting at is this.

Let’s say you own Black Acre, you have different incidents of an ownership of property.

Milton A. Rudin:

Let’s say I don’t own Black Acre but I have an easement over Black Acre for certain purposes and let’s say with respect to a scream on Black Acre, I have certain riparian rights or different type of easement.

So, let’s just make it simple two different types of easement, two different types rights, I could well leave a will, leave the —

Hugo L. Black:

I have no doubt about Black Acre.

I’m not saying about Black Acre.

Milton A. Rudin:

No.

But the rights I’m trying —

Hugo L. Black:

I’m thinking about this statute.

Milton A. Rudin:

But this statute —

Hugo L. Black:

It gives certain people the right in all their name to do certain things and that’s all I — the Black Acre —

Milton A. Rudin:

I’ll answer it —

Hugo L. Black:

— couldn’t get me anywhere.

Milton A. Rudin:

Well, may I attempt to answer this —

Hugo L. Black:

(Voice Overlap) is what I don’t understand.

Milton A. Rudin:

Mr. Justice Black, may I answer it this way.

That Fisher versus Witmark dealt with the right given by Congress to the author to renew the copyright if he survived the 28th year.

This case deals with the right given by Congress to an author who does not survive the 28th year and who does not live surviving him a wife, widower or children or child to bequeath by will.

Hugo L. Black:

Now, that I understand.

Milton A. Rudin:

Now, Fisher versus Witmark said that the right he acquired if he lived was assignable prior to that vesting.

And I simply say that if the Court feels it necessary to decide in this case that that right is also assignable here, it can do so without affecting the decision but I don’t think it’s necessary to the decision in the case because there was no assignment —

Felix Frankfurter:

Well, Mr. Rudin.

Milton A. Rudin:

— of that right.

Felix Frankfurter:

May I put it to you that the petitions for writ came here on two questions and you accepted the questions presented so that the point, that’s why it was a fresh matter for me.

The point you’re making or the argument you’re making a while ago that assuming there could be an assignment this isn’t — but this doesn’t satisfy the requirement for such an assignment, is that right?

Milton A. Rudin:

That’s correct.

Felix Frankfurter:

I — I say that that —

Milton A. Rudin:

It there is assignment of that right to bequeath.

Felix Frankfurter:

Yes.

That — that is not open under the statutes presented by this petition with which you agreed I think in your — in your respondent’s brief in our position.

Milton A. Rudin:

Well, if —

Felix Frankfurter:

Isn’t that right?

Milton A. Rudin:

Yes.

But if — if the question, what is — does the author’s prior assignment defeat the rights of the widow, widower or does it defeat the rights of the executor?

My answer is no.

Felix Frankfurter:

If it’s two reasons, one, it couldn’t under the statute, the other is that it didn’t.

Milton A. Rudin:

I — I respectfully submit on some (Voice Overlap) —

William J. Brennan, Jr.:

I gather your position is you may defend the objections in your favor below in any grounds you can without regard to the questions of —

Milton A. Rudin:

Well, certainly we did but we don’t think we have to defend it because he hasn’t raised it.

It’s brought in here on the sole issue we believe as to whether the assignment of the right in step one as I call it, defeated the exercise of the rights under step three.

And we say that that’s — there are no different classes, they’re all the same right.

Felix Frankfurter:

You can defend a judgement on any ground with reference to the — to the decision of the case if you can’t bring in on the questions presented, another issue not in the case.

Milton A. Rudin:

I don’t want to make my task any harder —

Felix Frankfurter:

Alright.

Milton A. Rudin:

— than it is, Your Honor.

[Laughs]I believe that, that’s it.

I’d like to briefly refer to Fox versus Knowles which was cited for a proposition, I didn’t understand to hold.

It very simply held that the executor has the rights and renew which is independent of the author’s right.

It’s — it’s of significance here prior to the Fox case.

There seem to be the thought that the executor was in the statute only exercise the right of renewal if the author made it into the 28th year but he didn’t exercise the right during the 28th year.

And therefore, the executor had a limited function in the statute.

In Fox case held otherwise and said that it was a separate and independent right.

Referring to what is exercising the same right of the decedent, it didn’t mean the same grant of right under step one, the same type of right.

Just as this Court has said that the widow and children exercise the same right that the author have if he dies (Inaudible)

Charles E. Whittaker:

And that — that so even though the author died prior to the beginning of the 28th year

Milton A. Rudin:

Yes.

Charles E. Whittaker:

And that was the situation in the Fox case.

So, something did survive through the executor.

Milton A. Rudin:

Yes.

That’s right.

If something survived to the author in a way —

Charles E. Whittaker:

Now, then —

Milton A. Rudin:

— he could exercise it prior to his death, the power of appointment.

Charles E. Whittaker:

Then does an executor at least normally take assets in his hands subject to valid contracts made with the testator?

Milton A. Rudin:

Yes.

That’s a true statement of general law.

Charles E. Whittaker:

Now, does that apply to copyrights, I don’t know?

Milton A. Rudin:

It would apply to copyrights if that was the type of contract involved here, Your Honor, but it was not.

If he had made a contract about the balance of the original term and the executor took it in the same manner he took Black Acre, the executor would be bound by it.

But what he had, what the author had was a power of appointment and our basic position is that the petitioner here by the bargain for nor obtained the — that right but he — that his assignment doesn’t carry with it, he didn’t bargain for it when he obtained — obtained it.

He might have gotten it but perhaps if he appointed out for the man, he might have given him more than $1000 but he didn’t buy that right.

And it’s a separate and independent right, this is a case where an executor exercises the power of appointment and it’s not the question of a divulsion of property that the man own.

This is after all a franchise, a grant by Congress which comes into being after the man dies and that’s our position.

Potter Stewart:

It is fair to say, Mr. Rudin, if not, tell me so that the basic difference between you and — and your brother forgetting about the terms of this particular instrument and forgetting about that — that question.

The basic difference between you is that you say that executor under the statute means executor as representative of the beneficiaries and that he says that executor under the statute means executor’s representative of the person or the decedent.

Milton A. Rudin:

That’s correct.

Potter Stewart:

Is that a — is that a fair basic statement of the difference between —

Milton A. Rudin:

It’s a very short statement of it, yes.I — I believe that sir.

It’s fair because — and I think the proof of that is in the (Inaudible) case proof of support of our position.

In the (Inaudible) case was, a man did not name an executor or just said, “You should go to my hometown at the carry.”

The Court said he left a will and that’s the intention that goes to the carry and the administrator would — will attach, I’d like to —

Potter Stewart:

Is the equivalent of an executor.

Milton A. Rudin:

— apply that thing and turn it over to his town (Voice Overlap) —

Felix Frankfurter:

The question isn’t whether you or Mr. Abeles — or you and Mr. Abeles’ view what an executor is.

The question is when you use a technical term like “executor”, what lawyers who used it means by an “executor”, then you will know that the notion of an executor and what the estate is called the “universitas”.

He has whatever the — for the left.

Even your case of a power of appointment is not outside of that because he has that something called he could make a disposition on his death and there is no — there’s no immaterial moment there between the death of the executor and — between the death of the testator and the executor.

He just slips into those shoes and those shoes or whatever the shoes are, I don’t — I’m not saying now, what the shoes are.

It depends what the shoes are then he slips into it.

Milton A. Rudin:

Well —

Felix Frankfurter:

And you have to decide what the shoes are and if you change the figure if there’s a — if — if he has something which has disposable monetary value, then he can take care of it by his will.

Milton A. Rudin:

My time is up and I would love to say further except I might just briefly say an executor does have rights under the Federal Employers Liability Act to cause of action.

Felix Frankfurter:

He — he has — sure he has but he —

Julian T. Abeles:

Might I respect to state (Inaudible)

Earl Warren:

Yes, yes.

Julian T. Abeles:

— to declare what these (Inaudible) decide that.

Earl Warren:

No, no indeed you have more time — yes.

Julian T. Abeles:

I’m sorry, counsel inadvertently said that in the Fisher case the — the Court had mentioned the fact that the man had died and that depended upon whether or not he lived for the assignment to take effect.

I respectfully —

Felix Frankfurter:

He corrected that.

(Voice Overlap)

Milton A. Rudin:

— he doesn’t say that all.

I know nothing in a —

Felix Frankfurter:

(Voice Overlap) and corrected that.

Milton A. Rudin:

Until now you repeated again at the end perhaps —

Earl Warren:

(Voice Overlap) But he did lived the 28th years, didn’t he?

Julian T. Abeles:

Yes he did.

But you see if you — if you please, it says that the petition for certiorari — said the petition for certiorari in this Court stated the sole question as whether an agreement to assign his renewal made by an author advanced to the 28th year, the original term of the copyright is valid and forceful.

Now, (Inaudible) the Court decide that it was not.

Thank you so much.

Hugo L. Black:

Well, may I ask you what your position means that your assignment would also cutoff the next of kin had there been no will?

Julian T. Abeles:

The — that assignment would but the assignment of the company were not because we obtained assignments for the next of kin.

You see, we protect our self —

Hugo L. Black:

Well, I —

Julian T. Abeles:

But if I didn’t get definitely so.

Hugo L. Black:

Suppose you had not had one, the man had died without a will.

Julian T. Abeles:

Wouldn’t be — wouldn’t — my assignment wouldn’t be effective.

Hugo L. Black:

Would not be good?

Julian T. Abeles:

No.

Hugo L. Black:

Why?

Julian T. Abeles:

Why?

Because certain statute says, “If he doesn’t leave a will, the next of kin get it automatically.”

Hugo L. Black:

And also the statute says that he makes a will it’s —

Julian T. Abeles:

But I still —

Hugo L. Black:

— his executor gets it?

Julian T. Abeles:

That’s right.

You see, if he made a will then we should get it, that’s correct, because the executor as this Court said (Voice Overlap) —

Hugo L. Black:

But the executor —

Julian T. Abeles:

— saves us to the shoes of —

Hugo L. Black:

And if he is — in other words, if a man doesn’t make a will, it goes to next of kin despite your assignment.

Julian T. Abeles:

Unless I get a separate assignment.

Hugo L. Black:

Well, unless you get from — I mean you — you can’t overwrite the rights of the next of kin.

Julian T. Abeles:

Of course, not.

Hugo L. Black:

Well, that’s while you were —

Julian T. Abeles:

That’s the reason I got it from the —

Hugo L. Black:

But if he does make a — but if he does make a will, then it’s no good.

Julian T. Abeles:

The assignment for the next of kin, correct.

Hugo L. Black:

Well, I’m — the — I’m not talking about next of kin he does make a will and decides he wants to give it to the next of kin and somebody else.

Then your assignment is good as against that will.

Julian T. Abeles:

Yes.

Of course you see as this Court said if I may respectfully say so, that if he has no wife and child he has a power, see, to designate by will, the executor apply for the renewal which of course would be for the purpose affecting the author’s disposition thereof.

That’s the way it is done.

If it intended, if the statute intended, may I say, that it should only be applied — it should only apply for beneficiaries undergo it until he said so.

Instead of saying, he didn’t leave a will or to have to save us if I might respectfully say so, if — if there’s no beneficiaries this is — it is not disposed at the beneficiaries.

That’s all just that same —

Hugo L. Black:

Well there are many — many ways they could have made it clear.

Julian T. Abeles:

That’s true —

Hugo L. Black:

But if —

Julian T. Abeles:

And I think — I think —

Hugo L. Black:

I — I understand that here you say that in the first place, it would go to the widow and the children.

Julian T. Abeles:

Definitely.

Hugo L. Black:

No assignment could cut it off?

Julian T. Abeles:

Definitely.

Hugo L. Black:

The next class they make is an executor.

Julian T. Abeles:

Right.

Hugo L. Black:

You say that that is cutoff by society.

Julian T. Abeles:

Cutoff badly, sir?

Hugo L. Black:

No, by your assignment to you.

Julian T. Abeles:

No.

No, I said — well, put up with other way, if you don’t mind.

Hugo L. Black:

Well, does the — is the will any good does — does anybody get anything from it?

Julian T. Abeles:

Yes.

We (Voice Overlap) —

Hugo L. Black:

The point of assignment you speak of.

Julian T. Abeles:

Yes we do because if it wasn’t for the will, we wouldn’t get it by appointing the executor, he really effectuates the disposition to us through the executor.

Hugo L. Black:

But even though he didn’t try to.

Julian T. Abeles:

I don’t know if he did or didn’t.

So, he didn’t make a specific requirement.

Hugo L. Black:

Did he name you as — did the will name you as the beneficiary?

Julian T. Abeles:

No.

Hugo L. Black:

Alright.

Then the second class is the executor.

Now, the third class which comes even after that is why they have no will?

Julian T. Abeles:

Yes, sir.

Hugo L. Black:

Do you say that your assignment is no good against him?

Julian T. Abeles:

If there’s no will, that’s correct.

Charles E. Whittaker:

Now then, let me ask you if I may sir.

Julian T. Abeles:

Yes, sir.

Charles E. Whittaker:

I want to get back to this administrator business.

Do you know of any law of decent under any state in the country that does not with respect to chattels leave them to next of kin describing they may be perhaps.

But do they not all do that and yet or not every such is not every such asset an asset in the hands of the administrator there being no will?

Then do you still maintain that these assets if it survives and there be no will, is not an asset in the hands of the administrator?

Julian T. Abeles:

Well, I — the Court could leave him.

I just didn’t want to take that technical position, you know I’m — because the other proposition to save so, why should I do that.

I — I feel this way, I’m absolutely —

Charles E. Whittaker:

You have to take it in a way —

Julian T. Abeles:

I am.

Charles E. Whittaker:

— to keep any inconsistency of the statute and the statute full read is perfectly plain, isn’t it?

Julian T. Abeles:

I understand that, sir.

Hugo L. Black:

It’s just plain language.

Julian T. Abeles:

That’s right, sir.

If you don’t mind my saying.

Charles E. Whittaker:

It is to me.

Julian T. Abeles:

Thank you sir.