Difficult questions of the proper renewal claimant continue to be litigated, most recently in Judge Miriam Cedarbaum's September 21 opinion in the "Chitty Chitty Bang Bang" case, Legislator 1357 Limited v. MGM, Inc., 2006 WL 2709783 (S.D.N.Y. Sept. 21, 2006). The place to begin is with Section 24 of the 1909 Act:
"[T]he copyright secured by this Act shall endure for twenty-eight years from the date of first publication, whether the copyrighted work bears the author’s true name or is published anonymously or under an assumed name: Provided, That in the case of any posthumous work or of any periodical, cyclopaedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in the case of any other copy- righted work, including a contribution by an individual author to a periodical or to a cyclopaedic or other composite work when such contribution has been separately registered, the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author’s executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in default of the registration of such application for renewal and extension, the copyright in any work shall determine at the expiration of twenty-eight years from first publication."
It is difficult to justify including posthumous works in the first proviso, since this has the effect of depriving the author’s spouse and children of the renewal privilege in case the original copyright was secured by the publisher. In principle, the author’s spouse and children should have the same right of renewal as they would have if the work were not posthumous. The provision was undoubtedly the result of an unfortunate historical accident, introduced when the drafts of the 1909 law provided for a basic life-plus term. This scheme may have been deemed inappropriate for posthumous works, but when the term was changed to a first term of 28 years with a renewal term of the same duration, the exception was inadvertently maintained.
A sharp limitation on what could be considered a posthumous work was imposed in the first case directly construing its meaning. In Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941 (2d Cir. 1975), the Second Circuit held that the basic policy behind granting renewal rights (i.e., to provide for the author or the author’s family), would best be served by limiting the category of posthumous works to those not covered by an assignment or contract for exploitation made during the author’s lifetime. The work in question, Bartok’s Concerto for Orchestra, not only had been the subject of such an assignment, but in addition had already been performed on the radio and its score set in printer’s proofs before the composer died. The court of appeals rejected the district court’s definition of posthumous works as those that are technically "unpublished" under the 1909 law—that is, generally not distributed in tangible form prior to the author’s death.
The drafters of the 1976 Act expressly stated their intent to include in Section 304(a) the meaning of "posthumous" given in the Bartok decision. Although the term is not defined in the Act, Copyright Office regulations state:
"[P]osthumous work" means a work that was unpublished on the date of the death of the author and with respect to which no copyright assignment or other contract for exploitation of the work occurred during the author’s lifetime."
Notwithstanding this definition, the regulations also provide that
"[T]he renewal claim may be registered in the name of the proprietor of the work, as well as in the name of the appropriate claimant under paragraph (f)(1)(iii) of this section [e.g., widow, executor], in any case where a contract for exploitation of the work but no copyright assignment in the work has occurred during the author’s lifetime. However, registration by the Copyright Office in this case should not be interpreted as evidencing the validity of the claim."
On top of all this must be added the Supreme Court's decision in Miller Music Corp. v. Charles Daniels, Inc., 362 U.S. 373 (1960), which held that where the author conveys the renewal term during the original term but dies before the renewal term vests, the renewal term conveyance is void and all rights go by the statute, that is, as detailed above.
With that background, on to Chitty Chitty Bang Bang, one of Ian Fleming's non-James Bond stories. The various transactions are set out in the opinion, but the bottom line is this: Fleming conveyed the renewal term to various parties but died before the renewal term vested. He also died before the work's publication. Plaintiffs argued that the executor of Fleming's estate and had title through them. Defendant argued the work was posthumous and that therefore rights went to the "proprietor," from whom they claimed. Judge Cedarbaum held that because Fleming had assigned rights in the work before his death and had revised versions of it, the work was not posthumous and rights vested ultimately in plaintiffs.