Help settling a copyright question

This is a question for all the copyright guru's on the list. A friend and I (both IP lawyers) are having a disagreement over a question of copyright renewals under the 1909 Copyright Act. I figured I would pick the collective wisdom of the list to see if we could come up with the answer.

Facts: Author writes a few stories and sells them to pulp magazine in the 1930's. While there is no specific writing anywhere that the copyright's themselves were sold to the magazine, it was standard practice at the time
(most checks from the magazines of the time bore a legend that endorsement
assigned the rights to the magazine) and lets assume for the sake of the argument that there was an assignment of the copyrights to the magazines. The magazines published the stories with a general copyright notice for the magazine itself and nothing for the individual stories.

Author dies in mid 30's, leaving no will, his father is his heir. Father dies with will, leaving to business partner, who leaves it to wife and so on until the author's estate is left to the current owners

Magazine sells out to another company, which then goes bankrupt in the 40's
(50's maybe). All the IP is purchased by an individual out of
bankruptcy. Timely renewals were made for all of the issues of the magazine. The person who bought the rights out of bankruptcy has offered to sell the copyrights back to the current estate owner.

Here is where the disagreement comes in:

I believe that the stories are in the public domain because under the 1909 Act, unless there was a writing assigning the renewal term, the only person who is able to actually renew the copyright was the Author or next of kin. At the time of the renewal, there were no next of kin living, so the renewal is ineffective.

My friend believes that if the heirs had renewed the copyright themselves, then they would have owned it, but since they did not, then the rights continued with the current holder and the renewals were effective for him.

Any thoughts or opinions?

Thanks

Rob Jones Received on Tue Aug 26 2003 - 22:30:11 GMT