The Transfer of Copyright Ownership to Periodicals
The Transfer of Copyright Ownership to Periodicals
David G. Mayer 0
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Recommended Citation David G. Mayer, The Transfer of Copyright Ownership to Periodicals, 46 Fordham L. Rev. 907 (1978). Available at: http://ir.lawnet.fordham.edu/flr/vol46/iss5/2
uthors seldom realize that every time they sell their work to a
periodical' publisher, they transfer valuable incorporeal property
rights in the form of copyright. If authors become sensitive to the fact
that a copyright exists in their work, they may contract with publishers
for a grant of specific rights and for the preservation of their copyright.
Thus, when a publisher offers to print a particular author's
contribution, a problem of legal draftsmanship will ensue and what is said or
unsaid in the contract will determine whether the author retains any
rights in his work or loses them to the public domain or to the
Under prior law, if an author sold a work to a periodical, the
publisher was presumed to acquire all rights in the work, absent an
explicit reservation of rights by the author. 2 If the publisher acquired
all rights included in the copyright, the author obviously retained
none. But if an author merely licensed a publisher to publish the work
for the first time, and the work was published without the author's
copyright notice, the work was considered to be in the public domain. 3
@ David G. Mayer 1977. A prior version of this Article was awarded first place in the
ASCAP Nathan Burkan Memorial Copyright Competition at Case Western Reserve School of
Member of the New York Bar. A.B. 1974, Ohio University, J.D. 1977, Case Western
Reserve School of Law.
1. For the purposes of this Article, the term "periodical" will be used interchangeably with
the term "magazine," according to the definition in Burton, Business Practicesin the Copyright
Field, 1952 Copyright Prob. Analyzed (CCH) 87. "We have no case defining what a periodical is for
copyright purposes, but it would seem fair to say, in the light of cases arising under the postal
laws, that a periodical is a publication appearing at stated intervals, each number of which has
separate articles by different authors, and of course, each number of which is a separate subject
matter of copyright." Id. at 91.
2. Dam v. Kirk La Shelle Co., 175 F. 902, 904 (2d Cir. 1910); Geisel v. Poynter Prods., Inc.,
295 F. Supp. 331, 343-44 (S.D.N.Y. 1968); Best Medium Publishing Co. v. National Insider,
Inc., 259 F. Supp. 433, 434 (N.D. Ill.), aff'd, 385 F.2d 384 (7th Cir. 1967), cert. denied, 390 U.S.
955 (1968); Alexander v. Irving Trust Co., 132 F. Supp. 364, 369 (S.D.N.Y.), aff'd, 228 F.2d 221
(2d Cir. 1955), cert. denied, 350 U.S. 996 (1956); 18 Am. Jur. 2d Copyright and Literary Property
§ 33 (1965); Caterini, Contributionsto Periodicals, 10 ASCAP Copyright L. Syrup. 321, 335-37
(1959); Henn, "MagazineRights"-A Division of Indivisible Cop)-right, 40 Cornell L.Q. 411, 438
3. Mifflin v. R. H. White Co., 190 U.S. 260 (1903); see Egner v. E. C. Schirmer Music Co.,
139 F.2d-398 (1st Cir. 1943) (song); Public Ledger Co. v. Post Printing & Publishing Co., 294 F.
430 (8th Cir. 1923) (book); Mail & Express Co. v. Life Publishing Co., 192 F. 899 (2d Cir. 1912)
In either case, the author suffered an unnecessary loss of his rights
because he did not take adequate precautions to protect the copyright
in his work. While the new Copyright Act 4 (Act), effective January 1,
1978, makes fundamental changes and clarifications to avoid this
result, the author should nevertheless take care to record the transfer
of rights in writing so as to retain the economic and legal value of the
copyright to which he is entitled.
This Article will explore the nature of the rights a publisher may
acquire from an author, the meaning of those rights, and the crucial
importance of specific contractual language in protecting the author's
copyright. The basic thesis is that an author and his publisher should
memorialize in specific terms the scope of the rights to be conveyed or
Before considering the substance of an author's contractual
relationship with a publisher, some basic concepts of the new Copyright Act
should be reviewed.
A. What May Be Copyrighted
The Constitution authorizes the Congress to secure to authors for a
limited time the "exclusive Right to their respective Writings."' Under
the 1909 Act, "all' the writings of an author" could be subject to
copyright protection. 6 The new Act refers to "original works of
authorship" 7 rather than "writings" in order to avoid speculation that
Congress intended to enact a copyright law that would extend to the
interpretive limits of the term "writings" in the Constitution. 8 In
making the change, Congress exercised its power to enact a copyright
law short of its full constitutional potential. 9
(articles or pictures); Caterini, Contributionsto Periodicals, 10 ASCAP Copyright L. Symp. 321,
333-34 (1959). But cf. Goodis v. United Artists Television, Inc., 425 F.2d 397, 403 (2d Cir. 1970)
("Although placing a special notice in the author's own name on each installment appearing in the
magazine would be a more careful practice than we find here, we do not think that failure to
do so, by itself, should cause an author to suffer forfeiture."); National Comics Publications, Inc.
v. Fawcett Publications, 191 F.2d 594, 598 (2d Cir. 1951) (negligence in protecting copyright does
not amount to abandonment).
4. Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified at 17 U.S.C.A. §§
101-810 (West 1977)).
5. U.S. Const. art. I, § 8, cl. 8.
6. 17 U.S.C. § 4 (1970).
7. 17 U.S.C.A. § 102(a) (West 1977).
8. H.R. Rep. No. 1476, 94th Cong., 2d Sess. 51 [hereinafter cited as H. Rep.], reprinted in
 U.S. Code Cong. & Ad. News 5659, 5664.
9. See H.R. Rep. No. 83, 90th Cong., 1st Sess. 14; Senate Comm. on Judiciary, 86th Cong.,
For the journalist or periodical writer, two fundamental
prerequisites for copyright protection are of primary concern: originality and
fixation in tangible form. Originality refers to expression and
authorship, and not the novelty of the subject matter. 10 An author may create
original work by writing on precisely the same topic as a fellow author
so long as he expresses it in his own individual way. Copyrights apply
only to expression, and do not extend to "any idea, procedure, process,
system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained, illustrated, or
embodied"'" in a work. Thus, the author who orally suggests to a
periodical a better graphic presentation of the front page has no
protectible copyright, while the author who submits the design itself
for the front page will probably have a copyrightable interest in the
A further requirement for copyright protection is that the work must
be "fixed in any tangible medium of expression."' 12 Congress intended
to provide copyright protection to any such expression "now known or
later developed" to avoid precluding protection for works not
specifically mentioned in the Act or developed later with new technology.13
A periodical writer need not be concerned with this change since
physical writings are now known and are obviously protectible if
original and in tangible form. It should be noted that the Register of
Copyrights may examine each work registered to insure that it
constitutes copyrightable subject matter and that other legal and formal
requirements of the Act have been met. 14 A writer may write an article
or a poem without fear that the Register may find it uncopyrightable
provided that it is original and in fixed form, such as in a periodical.
Further, the Act specifically includes literary works in the concept of
authorship.' 5 Thus, it is highly unlikely that a poem, short story, or
feature article would not qualify for copyright protection.
Who May Obtain Copyright Protection
The Act makes it clear that copyright ownership vests initially in the
author, 16 who can thereafter secure the copyright on his work by
following the necessary procedures. It is important for the author to be
aware of this principle because, to protect his rights, the copyright
owner must place his name in the copyright notice, register the claim
of copyright, deposit copies in the Copyright Office of the Library of
Congress, bring infringement actions and collect damages thereon,
create all contracts with regard to the work, record all transfers, and,
in his discretion, terminate most transfers and licenses within
prescribed times. 17
The author's initial copyright ownership is made specifically
applicable to collective works.1 8 A collective work is defined as a work in
which "a number of contributions, constituting separate and independent
works in themselves, are assembled into a collective whole." 1 9 An
anthology or a periodical is thus a collective work. It follows that a
writer may secure a copyright in a short story, article, or poem which
is placed in a periodical.
To qualify a published work for copyright protection, the author
must satisfy a standard of national origin or one of several alternative
tests. 20 A work would qualify if, on the date of first publication, the
author is a national or domiciliary of the United States. Also, if the
United States has a copyright treaty with another nation, nationals or
domiciliaries of that nation would be eligible for copyright protection.
In the case of a stateless person, copyright protection is also
available. 2 1 The first publication of the work in the United States, or in a
country which is a party to the Universal Copyright Convention, 22 will
enable the author to obtain copyright protection regardless of his
national origin. 23 Similarly, if the Organization of American States,
the United Nations, or one of its agencies publishes the work for the
first time, the author will be entitled to copyright protection. 24 These
requirements seem to extend copyright protection to nations or groups
which show mutual relationships in diplomatic or copyright areas or
bporethsi.d2e5nUtianldeprroscpleacmiaal ticoinrc.u26mstances, a work may be protected by a
Once an author qualifies under these standards, he is entitled to
copyright protection. If an author is domiciled in the United States, his
next step is to comply with the formalities to obtain copyright
Copyright protection is available to the author when he creates a
work. Most of the formalities in copyright law arise upon publication.
The new Act defines publication as the distribution of copies to the
public by sale, transfer of ownership, rental, lease, or lending.27 While
publication affects copyright protection, it no longer acts as the
dividing line between common law copyright and statutory copyright. 28 The
dual system was impractical and complicated, and therefore the
common law copyright of unpublished works has been abolished under the
new Act in favor of a unitary statutory system. 2 9 There is now
statutory protection for both published and unpublished works. 30
Further, the new unitary national system avoids conflicts between the
application of state or federal law on questions of securing copyright
protection by providing a broad federal preemption of other laws. 3 1
The notice requirements for securing a copyright have been
changed. The position of the notice, complicated under the 1909 Act, 32
is now to be affixed "in such manner and location as to give reasonable
notice of the claim of copyright. '3 3 The form of the notice may be a
small letter "c" in a circle, or the word "Copyright," or the
abbreviation "Copr." followed by the first year of publication and the name of
the copyright owner. 34 For example, "© Author's Name 1977" is
proper under the new Act. Alternatively, "Copyright Author's Name
1977" is acceptable. The year may be earlier than, but not more than
one year after, the first year of publication. 35 A contribution to a
periodical can be copyrighted separately and can bear a notice of its
own. 3 6 If, for example, an author contributes a work to a periodical,
the story may be copyrighted in the author's name and a notice may be
Deposit and Registration Under S. 22, 22 N.Y.L. Sch. L. Rev. 255, 255-58 (
Copyright Office has sought to clarify further what will constitute reasonable notice: "Mannerof
Affixation and PositionGenerally. (1) In all cases dealt with in this section, the acceptability of a
notice depends upon its being permanently legible to an ordinary user of the work, and affixed to
the copies in such manner and position that it is not concealed from view upon reasonable
) Where, in a particular case, a notice does not appear in one of the precise
locations prescribed in this section but a person looking in one of those locations would be
reasonably certain to find a notice in another somewhat different location, that notice will be
acceptable under this section." Proposed Rule of Copyright Office on Methods of Affixation and
Positions of the Copyright Notice, 42 Fed. Reg. 64,376 (1977) (to be codified in 37 C.F.R. §
34. 17 U.S.C.A. § 401(b) (West 1977).
35. Id. § 406(b).
36. Id. § 404(a). "Contributions to Collective Works. For a separate contribution to a
collective work to be considered to 'bear its own notice of copyright,' as provided by 17 U.S.C.
404, a notice reproduced on the copies in any of the following positions is acceptable:
(1) Where the separate contribution is reproduced on a single page, a notice is acceptable if it
appears: (i) Under the title of the contribution on that page; (ii) adjacent to the contribution; or
(iii) on the same page if, through format, wording, or both, the application of the notice to the
particular contribution is made clear;
) Where the separate contribution is reproduced on more than one page of the collective
work, a notice is acceptable if it appears: (i) Under a title appearing at or near the beginning of
the contribution; (ii) on the first page of the main body of the contribution; (iii) immediately
following the end of the contribution; or (iv) on any of the pages where the contribution appears,
if: (A) The contribution is reproduced on no more than twenty pages of the collective work; (B)
the notice is reproduced prominently and is set apart from other matter on the page where it
appears; and (C) through format, wording, or both, the application of the notice to the particular
contribution is made clear;
(3) Where the separate contribution is a musical work, in addition to any of the locations listed
in paragraphs (f) (1) and (
) of this section, a notice is acceptable if it is located on the first page of
music of the contribution;
(4) As an alternative to placing the notice on one of the pages where a separate contribution
itself appears, the contribution is considered to 'bear its own notice' if the notice appears clearly in
juxtaposition with a separate listing of the contribution by full title and author: (i) On the page
bearing the copyright notice for the collective work as a whole, if any; or (ii) in a clearly-identified
and readily-accessible table of contents or listing or acknowledgments appearing near the front or
back of the collective work as a whole." Proposed Rule of Copyright Office on Methods of
Affixation and Positions of the Copyright Notice, 42 Fed. Reg. 64,377 (1977) (to be codified in 37
C.F.R. § 201.20(f)).
placed at the bottom of the first page of his work to give reasonable
notice of his copyright.
Errors in the form of the notice, or even publication without any
notice, need not place the work in the public domain, as was
sometimes the case under prior law. 37 Publication without notice does not
matter if the notice was omitted from "a relatively small number of
copies," and it can be cured in other cases by registration of the work
within five years of publication if a "reasonable effort" is made to add
the notice to the copies distributed after discovery of the omission. 38
Where the work is published without notice in violation of a written
agreement with the copyright owner, the omission will not invalidate
the copyright. 39 Errors in name will not affect the copyright except as
a defense in infringement actions brought against good faith
transferees or licensees of the person named in the notice, and errors in date
have limited importance. 40
Once copyright protection is secured by publication with proper
notice, three separate formal actions should follow: registration,
deposit, and recording. First, the copyright owner, who may be the
author or his transferee, should register the work with the Copyright
Office. 4 1 While registration is not mandatory to secure copyright
protection, the certificate of registration returned by the Copyright
Office is prima facie evidence of the validity of the copyright and the
facts stated in the certificate. 4 2 Further, registration is a prerequisite to
an infringement suit. 43 Therefore, registration serves at least two
useful purposes beyond that of providing the Copyright Office with a
record of the owner's copyright.
The application for registration is made on a form provided by the
Copyright Office. The official seal placed on the certificate of
registra37. See note 3 supra and accompanying text.
38. 17 U.S.C.A. § 405(a) (West Supp. 1977).
40. Id. § 406. Where the date in the notice is incorrect, the term of the copyright under id. §
302, see note 63 infra and accompanying text, will be computed from the year of the notice,
except that where the year is later than one year after that of first publication, the notice %ill be
treated as having been omitted, see notes 37-39 supra and accompanying text.
41. 17 U.S.C.A. § 408 (West 1977); see H. Rep., supra note 8, at 152-55, [19761 U.S. Code
Cong. & Ad. News 5768-71.
42. 17 U.S.C.A. § 410(c) (West 1977). The certificate constitutes prima facie evidence if made
within five years of the first publication. After that, the evidentiary weight is within the court's
discretion. See also American Greetings Corp. v. Kleinfab Corp., 400 F. Supp. 228, 231 n.2
(S.D.N.Y. 1975) (decided under the former Act).
43. 17 U.S.C.A. § 411(a), 501(b) (West 1977). "[A] copyright owner who has not registered his
claim can have a valid cause of action against someone who has infringed his copyright, but he
cannot enforce his rights in the courts until he has made registration." H. Rep., supra note 8, at
157,  U.S. Code Cong. & Ad. News 5773.
tion denotes the Register's approval of the work as copyrightable
subject matter which complies with all the formalities. 44 On the form,
the copyright claimant must state how he obtained ownership of the
copyright, the title of the work, the year its creation was completed,
and other data as to the name or nationality of the author. 45 In
addition, the Copyright Office requires information on whether the
work is for hire, 46 the name and address of the claimant, 47 and various
other data concerning qualification of the work for copyright
protection in the United States.
Functionally related to registration is the second requirement that
copies of the work be deposited in the Copyright Office. There are
limited exceptions to the deposit requirement where fewer than five
copies of the work are published or where the work is published in
limited editions making the deposit unfair or burdensome or
unreasonable. 48 An author or other copyright owner may deposit copies at the
same time as he submits his registration forms. The Act prescribes that
"two complete copies of the best edition" of works published in the
United States shall be deposited in the Copyright Office. 4 9 The "best
edition" is defined as the edition "published in the United States at any
time before the date of deposit."5 0 It would seem that the new Act
intends some broadening of the discretion of the Copyright Office in
determining what it will accept as a "best edition."5 1 A contributor to a
periodical would probably send two copies of the issue in which his
copyrighted contribution first appeared. This deposit requirement,
unlike registration or recording, is mandatory within three months of
publication. Failure to deposit a work can result in an initial fine of up
to $250, and a repeated failure to deposit a work can produce an
additional fine of $2,500.52 With this power, the Copyright Office
should be able to collect editions for its public record. It should be
clear that, despite these fines, the failure to depospitriaorwloarwk.5d3oes not
invalidate the copyright protection as under the
Unlike the deposit requirement, recordation of a transfer of
copyright ownership is permissive.5 4 Any transfer may be recorded"5 for a
fee5 6 in the Copyright Office. Recordation gives all persons
constructive notice of the facts stated in the recorded document, provided that
the record specifically identifies the work so that it can be found after a
reasonable search of the index of records and registration has been
made for the work.5 7 Also, recordation of any transfer is a prerequisite
to an infringement suit by the transferee.5 8 In the event of a conffict
between various transfers of ownership or between a transfer of
ownership and a nonexclusive license, the new Act establishes a system
of priorities.5 9
When a copyright is protected by registration, deposit, and
recording, it can be defended in an infringement suit. 60 The available
remedies include an injunction, the impounding or destruction of
infringing materials, actual or statutory damages, the award of
attorney's fees, criminal penalties for willful infringement with intent to
gain commercial advantage, and seizure and forfeiture of all materials
produced. 6 1 A criminal proceeding must be commenced within three
years "after the cause of action arose" and a civil case "within three
years after the claim accrued. '62
The copyright, under which all these rights and remedies arise, has
a basic duration of the life of the author plus fifty years. 63 Most nations
operating under the Universal Copyright Convention 64 have adopted
this term. The longer life expectancies of authors and the world
52. 17 U.S.C.A. § 407(d) (West 1977).
53. Compare id. § 411 with 17 U.S.C. § 14 (1970). However, even under prior law, delay in
depositing the work was held not to bar an action for infringement. See Newton v. Vorhis, 364 F.
Supp. 562, 563 (D. Ore. 1973); Frederick Chusid & Co. v. Mfarshall Leeman & Co., 326 F. Supp.
1043, 1063-64 (S.D.N.Y. 1971).
54. 17 U.S.C.A. § 205 (West 1977).
55. Id. § 205(a).
56. Id § 708(a)(4) (basic fee of $10, with 50¢ additional for each page over six).
57. Id. § 205(c).
58. Id. § 205(d), 501(b).
59. Id. § 205(e)-(f).
60. See Wasserstrom, An Analysis of the Infringement Sections of the Copyright Code and
Chapter 5 of S. 22, 22 N.Y.L. Sch. L. Rev. 271 (
61. See 17 U.S.C.A. §§ 502-506, 509 (West 1977).
62. Id. § 507.
63. Id. § 302.
64. See note 23 supra.
interrelationships of creators and their copyright transferees convinced
Congress to adopt the fifty-year period. 65 Furthermore, Congress
devised complicated procedures for the author or his heirs to terminate
a grant of copyrights. 66 In this way, Congress secured to the author
extensive protection for the works of his creation. 67
An established principle of copyright law is restated in the new Act:
the source of copyright ownership is the author. 6 8 All rights and title
initially vest in him. Thereafter, the author may transfer his copyright
ownership. 6 9 Any of the exclusive rights that a copyright owner may
have 70 can be transferred and owned separately. 7 1 Thus, the new Act
contains the first explicit recognition in our law of the principle of
divisibility of copyright. 72
Generally, the ownership of a copyright may be transferred by any
means of conveyance or by operation of law. 73 This is qualified
somewhat in section 204(a) which states that "a transfer of copyright
ownership, other than by operation of law, is not valid unless an
strument of conveyance, or a note or memorandum of the transfer, is in
writing and signed by the owner of the rights conveyed or such owner's
duly authorized agent."'7 4 This provision, in effect, encourages authors
and publishers to memorialize their transfer in writing. As will be
shown, 75 the specific language in the written agreement will be crucial
in determining what rights are conveyed.
A "transfer of copyright ownership" is defined as an "assignment,
mortgage, exclusive license, or any other conveyance, alienation, or
hypothecation of a copyright or of any of the exclusive rights
comprised in a copyright, whether or not it is limited in time or place of
effect, but not including a nonexclusive license."7 6 Thus, a grant of an
exclusive right 7 7 to publish for a limited period would fall within the
definition. Even though such exclusive rights may be limited in nature,
the new Act permits their transfer regardless of limitations in time or
place of effect.7 8 However, a transfer of a nonexclusive license would
not qualify as a "transfer of copyright ownership," and might therefore
be made orally since it would not fall within the section 204(a) writing
requirement.7 9 To illustrate, an author could orally transfer
nonexclusive publication rights to various periodicals at the same time. Such
nonexclusive grants would seem to be valid under the new Act even
without a writing. On the other hand, an author could not orally grant
to various periodicals the same exclusive rights to publish his work.
Transfer of such exclusive rights in writing is not only required but is
also advisable since an infringement action cannot be brought without
recording the written transfer of ownership rights. 80
The requirement of written transfer is incorporated into section
201(c), which refers to contributions to collective works such as
periodicals. 8 1 Each contribution constitutes a separate and
independent part of an entire collective work. For example, a fiction story may
fit into a section of short stories in a periodical, and the author may
own rights in the work separate from those of the publisher. Under
74. Id. § 204(a).
75. See notes 109-12 infra and accompanying text.
76. 17 U.S.C.A. § 101 (West 1977).
77. The "rights" that may be transferred are a hybrid of incorporeal property rights and
contract rights. See generally White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1
78. See text accompanying note 76 supra.
79. The exact scope of the writing requirement is not determinable even with regard to
exclusive rights. For example, it would appear that the exclusive right to publish a contribution
to a collective work may be granted without a writing, but the right would be limited to that of
initial publication. See 17 U.S.C.A. § 201(c) (West 1977).
80. Id. §§ 205(a), 411(a), 501(b).
81. Id. § 201(c).
prior law, 82 the author who sold his story to a periodical without
expressly reserving any rights was presumed to have transferred all
rights to the publisher. The new Act reverses this presumption. Section
201(c) provides that, in the absence of an express written transfer, the
author retains ownership of the copyright in his contribution and the
publisher acquires "only the privilege of reproducing and distributing
the contribution as part of that particular collective work, any revision
of that collective work, and any later collective work in the same
series."'83 This provision, when taken in conjunction with the section
dealing with copyright notice, 84 seems to preserve the author's
copyright in his contribution even if the contribution does not bear a
separate notice, assuming there has otherwise been no unqualified
transfer of rights to the owner of the collective work. 85 To illustrate
the principle, suppose an author writes a novelette and allows a
periodical to publish it. In the absence of a contract between the
publisher and author, the publisher will be presumed to have only the
right to publish the novelette for the first time. Congress believed that
the presumption in favor of the author was "fully consistent with
present law and practice, . . . [representing] a fair balancing of
82. See note 2 supra and accompanying text.
83. 17 U.S.C.A. § 201(c) (West 1977). For brevity, this statutory language will hereinafter be
referred to as the right to publish the work for the first time.
84. Id. § 404.
85. "[A] single notice applicable to the collective work as a whole is sufficient to satisfy tile
requirements of sections 401 through 403 [dealing with the form of copyright notice] with respect
to the separate contributions it contains . . . , regardless of the ownership of copyright in the
contributions and whether or not they have been previously published." Id. § 404(a). Where the
single copyright notice is in the name of the publisher rather than the author of the separate
contribution, "the case is governed by the provisions of section 406(a) [dealing with errors in name
or date in the notice of copyright]." Id. § 404(b). That section provides that where the person
named in the copyright notice is not the copyright owner, "the validity and ownership of the
copyright are not affected," but that one who innocently infringes the copyright may defend an
action for infringement by showing that he is a good faith transferee or licensee of the person
named in the copyright notice. Id. § 406(a). Even this defense of good faith may be cut off where
the copyright owner registers the work in his own name or the person named in the copyright
notice records a document showing the actual ownership of the copyright. Id. However, where
the publisher places a single notice in his own name on the magazine and registers the copyright
himself, the author who thereafter seeks to register his separate contribution in his own name
may run afoul of the "general rule against allowing more than one registration for the same
work." H. Rep., supra note 7, at 155,  U.S. Code Cong. & Ad. News 5771. The
Copyright Office is considering allowing multiple registrations in such a situation. "Where
someone other than the author is identified as the copyright owner in the earlier basic registration,
and the author is now seeking a basic registration in his or her own name as copyright owner,
there may be grounds for permitting the author to do so." Copyright Office Notice of Inquiry, 42
Fed. Reg. 48,945 (1977). A prudent author might prefer to avoid the problem by having the work
published initially under his own separate copyright.
equities." 8 6 Periodical publishers, on the other hand, objected to this
presumption as "discriminatory."8 7 From the author's point of view,
however, it is he who has created the work, and under the
Constitution, the author is to be rewarded with exclusive rights for a limited
term. Therefore, it should follow that the publisher must purchase the
specific rights embodied within the author's copyright at a price that
reflects the value of each of those rights. In the absence of such an
agreement, the publisher would be deemed to have purchased only the
right to publish the work for the first time. The new law may
theoretically strike a rough balance between the parties because the
publisher is probably in a better bargaining position, while the author
has the presumption in his favor. The balance may be illusory,
however, because a periodical publisher will likely draft a contract
which transfers any rights it desires, and thereby overcome the
presumption. Except for an established writer,8 8 authors will not be in a
position to negotiate with a periodical.8 9 In short, they may still have
to "take or leave" the opportunity to publish on the periodical's terms.
Despite these practical difficulties, the author should at least be aware
of the nature of the rights he can, and does in fact, transfer to the
Exclusive Ownership Rights in Copyrighted Works
While not clearly stated in the 1909 Act, the courts accepted the
indivisibility of the copyright as an established notion.90 At the same
time, however, the concept was criticized9 1 and, in the commercial
context, practically ignored. 92 The indivisibility theory, as defined by
one author, 93 means that a work embodied in concrete form, or a
separable part of the work, could at one time, in any particular
jurisdiction, consist of only one incorporeal legal title known as the
copyright, which included a bundle of rights recognized under
Under the former Act, a copyright owner had the exclusive rights to
print, reprint, publish, copy, vend, translate, publicly perform,
reproduce, and distribute the copyrighted work. 94 These rights were
exploited in the commercial markets by transferring them in the form
of equitable rights since the copyright was held to be indivisible. 95
Thus, an author could simultaneously sell serial rights in a story to a
publisher, and motion picture rights in the same work to a studio.
These equitable rights could, however, be cut off by a bona fide
purchaser of the entire copyright. Thus, if a third party acquired all of
the rights from the author, the equitable rights of both the studio and
the publisher would be cut off.96
To protect against such losses of property rights in a copyright, and
in recognition of criticisms of the indivisibility theory, Congress
enacted section 106 of the new Act. 9 7 This section gives the copyright
owner five fundamental rights, reproduction, adaptation, publication,
performance, and display. 98 Despite simplification as compared with
the language of the former Act, these five enumerated rights may be
subdivided indefinitely, and in connection with the ownership
provisions of section 201, "each subdivision of an exclusive right may be
owned and enforced separately." 99 Thus, if an author grants the
exclusive right to A magazine to publish his article within the State of
New York, the periodical becomes the owner of that specific right and
may enforce it against the world after complying with the applicable
formalities. However, B magazine may hold the same rights for
California and, like A magazine, will be entitled to enforce its rights
against anyone else. The rights of both periodicals are subdivisions of
the exclusive rights to publish and distribute copies under section
A writer for a periodical would want to be especially familiar with
the first three rights of the five mentioned-reproduction, adaptation,
and publication-since these cover all copyrights except those of
performance and display. The right to reproduce the copyrighted work
means "the right to produce a material object in which the work is
duplicated, transcribed, imitated, or simulated in a fixed form from
which it can be 'perceived, reproduced, or otherwise communicated,
either directly or with the aid of a machine or device.' "101 For
example, if an author grants A magazine the exclusive right to
reproduce a feature article in any compilation, and B magazine prints a
substantial portion of the same article a month later in another
periodical, tabloid, or journal, A magazine would have a cause of
action under the new Act against B magazine for infringement of the
exclusive right to reproduce. 10 2
The second fundamental right in a copyrighted work is the right to
prepare derivative works. 10 3 While this right overlaps the reproduction
right, it is broader. A derivative work is one based upon a preexisting
copyrighted work. It includes, but is not limited to, a "translation,
musical arrangement, dramatization, fictionalization, motion picture
version, sound recording, art reproduction, abridgment, condensation,
or any other form in which a work may be recast, transformed or
adapted. 1 0° 4 Derivative works even encompass editorial revisions of a
copyrighted work, "annotations, elaborations, or other modifications
which, as a whole, represent an original work of authorship."'I s Thus,
if A magazine has the right to reproduce a work, B magazine cannot
believe that a basic registration made by any one owner is sufficient to secure the statutory
benefits of registration to the author of the work and all other owners of rights in the work.
However, where the basic registration for a work has been made by the author or the owner of
one or more exclusive rights, and the owner or owners of other exclusive rights Mshes those
rights to be made a matter of public record, the Office does plan to permit a supplementary
registration under section 408(d), 'to amplify' the information given in the basic registration for
the work. At the same time it must be understood that a supplementary registration made to
place the ownership of additional specified rights on public record will not serve as a substitute
for recordation of the instrument under which that owner has acquired the rights." Copyright
Office Notice of Inquiry, 42 Fed. Reg. 48,945 (1977) (footnotes omitted). These plans, however,
have not been reflected in the currently effective regulations. "Supplementary registration is not
appropriate: (A) as an amplification, to reflect the ownership, division, allocation, licensing, or
transfer of rights in a work, whether at the time basic registration was made or thereafter .... "
Copyright Office Interim Regulation, 43 Fed. Reg. 773 (1977) (to be codified in 37 C.F.R. §
) (iii)) (effective Jan. 1, 1978).
101. H. Rep., supra note 8, at 61,  U.S. Code Cong. & Ad. News 5675.
102. 17 U.S.C.A. §§ 501-510 (West 1977).
103. Id. § 106(
104. Id. § 101.
place the same work in its publication, for this violates A magazine's
reproduction right. Further, suppose B magazine altered the story, but
kept it in substantially the same form. A magazine may argue that B
magazine infringed on either its derivative rights or reproduction
rights. In this way the two exclusive rights may overlap.
Public distribution is the third fundamental right. It involves the
right to distribute by sale or other transfer of ownership, or to make
gifts, loans, or rental agreements. Infringement may occur when, if A
magazine has the exclusive right to distribute, B magazine makes
unauthorized public distribution of the same work. 10 6
In summary, an author must be aware that many exclusive rights
are embodied in his copyright and that each can be subdividetl,
transferred, and enforced separately.
The Nature of Periodical Rights
When periodicals accept an author's .work for publication, the
publisher will probably not ask in the language of section 106107 for
the exclusive right to reproduce, prepare derivative works, distribute
copies, perform, or display the work.' 0 8 Instead, publishers may ask
for some or all of these rights in terms unique to the publication trade.
In a specific agreement, the author, for example, would expect to be
asked for "first serial rights," "one-time rights," "simultaneous rights,"
"all rights," or "foreign serial rights."'10 9 Most of these terms, while
accepted in the trade, suffer from legal imprecision and may therefore
breed confusion in agreements to publish and lead ultimately to
Since these terms arise from trade practice, they would seem to
derive their meaning from the customary method of doing business." 0
There are limits to what courts will enforce under the name of custom
and trade practice,1 and here the trade practice appears to cover not
only a method of doing business, but also certain conclusions of law.
When a periodical acquires rights in an author's work, the scope of
those rights is defined by a contract between the parties. In trade
practice, the contract is often informal, taking the form of a legend
printed on the back of the publisher's remittance check."12 Such a
stamp would include information such as the title of the contribution,
the author's name, and the type of material, such as a story, poem, or
feature article. The check stub may also define which rights the
periodical acquires in a work. On occasion, the publisher may send a
letter along with the check to further explain the scope of the rights it
intends to purchase. Typically, no formal contract is executed.
The immediate problems for the author upon receiving such a letter
or check are two. First, if the author has published little, he may
be mainly interested in seeing his work in print and therefore reluctant
to refuse payment on whatever terms the publisher requests. Second,
the check stub as filled in or the letter as written may not adequately
define the scope of the periodical's rights in the work. Nevertheless, a
writer may at this point bargain to retain the maximum rights in his
work so that he can market it further and reap the rewards. Faced
with such problems, the writer ought to preserve a written record of
the transfer of rights in his work, specifically stating which rights the
periodical shall acquire.
Under prior law, acceptance of the check by the author seemed to
operate as a grant of the rights requested on the back of the check or in
the accompanying letter. 113 However, as discussed above,"14 the new
Act invalidates a transfer of copyright ownership unless reduced to
writing and signed by the owner of the rights. This indicates that the
agreement between the parties may have to be more formalized than
was the case under prior law."15 For example, suppose a publisher
sends a check to an author, together with a letter contract asking the
author to return a copy of the contract with his signature. If the author
Exstein, 141 F. Supp. 278 (S.D.N.Y. 1956). Even where there is a contract between author and
publisher, a court will look not only to the words used, but also to the object of the contract and
the rights granted. The court will take care to read the document as a whole to avoid
misapprehending the meaning of the language. April Prods., Inc. v. G. Schirmer, Inc., 308 N.Y.
366, 377, 126 N.E.2d 283, 290 (1955).
112. 1 A. Lindey, Entertainment Publishing and the Arts 141-62 (1963).
114. See note 74 supra and accompanying text.
115. There may be some question as to what kind of writing will be sufficient as "an
instrument of conveyance, or a note or memorandum of the transfer" under 17 U.S.C.A. § 204(a)
(West 1977). It is unclear whether the legend stamp where the blanks are filled in by a publisher
will be sufficient. If sufficient, the writing requirement may not in fact make any difference in
present trade practice.
never returns the contract, yet cashes the check, and the publisher
thereafter prints the work, the conveyance letter is apparently not
effective to transfer the copyright because the author neither signed
nor returned it to the publisher. Since the work is published without
an express written transfer, the presumption in favor of the author1 16
should operate, and the publisher will receive only the right to publish
the work for the first time. Even if the publisher bargained to acquire
the total exclusive rights comprised in the author's copyright, the
failure to obtain the signed contract may nevertheless forfeit all but
that limited right of first publication.
Assuming the publisher avoids this problem by insisting upon the
return of the signed contract, a further problem may exist as to the
meaning of the trade terms it contains. Because the terms will govern
what the author retains and the publisher acquires, their meanings
deserve special attention.
1. "Serial Rights," "First Serial Rights," "Second Serial Rights," and
The definition of "serial rights" is by no means a settled question.
The term, according to one source, 117 "does not mean publication in
installments, but refers to the fact that libraries call periodicals 'serials'
because they are published in a serial or continuing fashion."' 118 The
Canadian Copyright Act defines "serial" to mean "any book that is first
published in separate articles or as a tale or short story complete in one
issue in a newspaper or periodical."' 19 A more complete definition of
"serial rights" was given in New Fiction Publishing Co. v. Star Co. 120
as follows: "The words 'serial rights' have . . . a definite meaning
among publishers, and are understood to comprehend all publishing
rights, including magazine and newspaper publishing rights, and
excepting only book, dramatic, and moving picture scenario rights."' 12'
In applying these various definitions to the phrase "serial rights" as
used in a contract between an author and publisher, a great deal of
uncertainty is inevitable. For example, the New Fiction definition
expressly excepts book rights, while the Canadian definition expressly
includes rights relating to first publication of a book in separate
articles. It has been suggested,' 22 moreover, that there are exceptions
116. See note 96 supra and accompanying text.
117. Letter from Paula Sandhage, Book Editor, Writers Digest magazine, to Anne Accrocco,
author-subscriber (Mar. 2, 1977) [hereinafter cited as Sandhage letter].
118. Id. For a similar definition of the term, see Henn, supra note 2, at 422 n.53.
119. Can. Rev. Stat. c. 55, § 15(3) (1970).
120. 220 F. 994 (S.D.N.Y. 1915).
121. Id. at 995.
122. See Henn, supra note 2, at 421-22 n.53.
today to the New Fiction definition beyond those specifically listed in
that opinion ("book, dramatic and moving picture scenario rights" 12 3).
As technology has developed and communication has become
multilingual and worldwide, the scope of such exceptions has arguably
broadened. Since New Fiction was decided in 1915, when global
circulation of magazines was uncommon, it is doubtful that the court
considered all potential publication rights. Thus, it is unlikely that the
New Fiction court considered whether its definition should exclude
distribution abroad. Yet today even remote geographical areas may
have a separate market potential, and the right to distribute in such
areas may not be included in "serial rights." Similarly, the definition
does not expressly exclude the right to translate and publish in every
conceivable language. However, today the right to such translations
may not be understood to have been transferred, absent specific
language to that effect. Since subsequent court decisions have not
further defined "serial rights," authors and publishers can only
speculate on the present scope of this term.
To confound this uncertainty, there are several variations of the
term "serial rights." "[F]irst serial rights," according to Professor Henn,
can be construed as combining the right to publish in magazine or newspaper form
with the right of first publication or use in any form or media, the word "first" serving the
purpose of a twofold limitation: (1) to bar prior or simultaneous publication or use by
the author or persons acting under his authority, and (
), to bar subsequent
republication or re-use by the magazine publisher or by persons acting under its authority
A second contrasting definition, based on actual contracts used in the
industry, states that "first-serial rights generally authorize (1) the
publisher or his sublicensee (
) to publish the work-in full as a serial
or in a condensed version of two or more installments (3) in magazines
or newspapers (4) before the first trade edition comes out."12s A third
definition of "first serial rights" is that the writer thereby simply offers
the newspaper or periodical the right to publish his work for the first
time in their periodical. 12 6
When applied, the three definitions yield different results in the
same or similar situations. For example, suppose the author grants A
magazine "first serial rights" to publish a story. Under the Henn
definition, B magazine may not publish it before A magazine, and A
magazine may never use it again. Under the suggested industry
123. 220 F. at 995.
124. Henn, supra note 2, at 422 n.53.
125. Shapiro, The StandardAuthor Contract:A Survey of Current Drafismanship, 18 ASCAP
Copyright L. Syrup. 135, 151 (1970).
126. Sandhage Letter, supra note 117.
definition, A magazine basically has priority in time to publish the
story before B magazine, and can serialize or condense the story for
installments. While the Henn definition may not explicitly refer to
rights to publish the work in the same series or installments, his idea
may implicitly reach the same result. However, contracts for rights for
an author's story should not be left to implication where explicit terms
can be stated. In the third definition, there is neither an express nor an
implied right to publish an author's story in installments, thereby
leaving open the question of whether publication by installment or by
single publication of the total work is intended. 127
Yet, the method of publication of the work may be critical to the
author. He may want to publish an article elsewhere immediately after
a periodical publishes it for the first time, provided the work is not to
appear in installments. For example, suppose the complete text of the
article was published in A magazine on February 1. The author could
then seek to publish it again on March 1. However, if the article
appears in installments on February 1, March 1, and April 1, the
author would lose two months during which he could not have it
published elsewhere. Such a delay would affect the marketability of
many timely articles. If B magazine does publish the work
immediately after the first installment has appeared, A magazine may
have a cause of action for infringement on its "first serial rights."
Thus, whether "first serial rights" includes publication in installments
is significant. In general, it may be said that parties are dealing with
rights of an uncertain scope when they use the term "first serial rights."
When the meaning of this term is read together with that of "serial
rights,"' 128 the confusion can become unmanageable. Thus, instead of
using these terms, the parties ought to specify which rights the
publisher shall acquire.
Rather than avoid this confusion, the industry has further
subdivided the term "serial rights." For example, a publisher could ask for
"first North American serial rights.' 29 The term is supposed to mean
127. Such uncertainties have long been associated with the term. "Do 'first serial rights'
indicate the medium, so that the work is publishable only in magazines as distinguished from
newspapers; or do such rights mean first publication of the work irrespective of medium, so that
upon the completion of initial publication there is no further right to publish? . . . . Moreover,
does the word 'serial' in this context necessarily imply that the work must be published In
instalments, or is it neutral in that regard, so that the work may be published as a so-called
'one-shot'?" Wasserstrom, Magazine, Newspaper and Syndication Problems, 1953 Copyright
Prob. Analyzed (CC) 159, 164-65.
128. See notes 117-23 supra and accompanying text.
129. One association of writers has incorporated this term in its recommended standards for
working arrangements between writers and periodicals: "That publications purchase first North
American serial rights only, all other rights (for foreign sales, anthologies, reprints, etc.) being
that a periodical can publish the work in both the United States and
Canada for the first time. 130 This would not include first publication in
Mexico, notwithstanding that country's apparent location in North
America. Nor does the term shed light on where in the particular
country the piece may be published. Even if one assumes the work can
be published anywhere in Canada or Mexico, the term "first North
American serial rights" neither expresses nor implies whether in
Canada the piece may be published in French or, if in Mexico,
whether the work can be translated into Spanish. Since a translation
can change the precise meaning of a poem or story, the author may
want some control over the translated version. However, if the term is
interpreted to include translation rights, the author may inadvertently
sign away the right to review translations.
In Eliot v. Geare-Marston, Inc., 131 an author had sold her work
outright to a publisher, who later assigned back to the author "all
rights in the article, except American serial rights."'1 3 2 After printing
the story in its own periodical, the publisher allowed a third party to
print the story in a house organ with limited distribution. The author
then sued to enjoin this further use. The court denied the injunction,
basing its decision on testimony that "American serial rights included
the right to republish in various publications, including trade papers,
or other papers which are not competitive with a first class magazine
(such as the Saturday Evening Post)."' 33 It followed, then, that certain
lesser rights were encompassed within "American serial rights,"
including the right to allow others to republish. Thus, "American serial
rights" seemed to grant (1) the right to publish initially in a first class
) the right to republish except in competition with first
class periodicals, and (3) all lesser included rights. In today's market, it
would be difficult to separate those periodicals which are first class
from those which are not. Therefore, the first of the three Eliot rights
is problematic. As to the second, the same problem of what constitutes
first class may arise, and an author may have no idea that such a grant
could involve repeated publication outside of the first class American
market. Unless the rights are more clearly stated, the author may find
himself unable to contest republication in a particular periodical. For
example, suppose an author grants "American serial rights" to A
reserved to the writer unless a specific prior agreement states otherwise. ...PEN American
Center, PEN Standards for Magazine and Periodical Assignments.
130. 1978 Writer's Market 26 (J. Koester & B. Hillman eds. 1978).
131. 30 F. Supp. 301 (E.D. Pa. 1939). For a discussion of this case in relation to the new Act,
see notes 185-87 infra and accompanying text
132. 30 F. Supp. at 302.
133. Id. at 303.
magazine which publishes his work and sends him a check.
Subsequently, the periodical sells the work to B magazine, in a different
market, which republishes it. The author has been paid once, yet two
periodicals have profited from his work. To avoid such a result, the
uncertain term "American serial rights" should be avoided. This
conclusion is further supported by the generality of the third element of
the Eliot definition, which grants all lesser rights. Since these lesser
rights are undefined, an author might have difficulty in challenging a
publisher's continued use of his work. To illustrate, suppose a
periodical has "American serial rights" to the author's story and publishes
it. The publication of the story may create considerable beneficial
publicity for the periodical. Therefore, the publisher will desire to use
excerpts of the story in subsequent issues for publicity. If the author
attempts to challenge this use, the publisher could argue that he has all
lesser rights to the work, including publicity uses. In the absence of an
express agreement defining the rights transferred, the writer may not
be able to prove that his retained rights were infringed. The new Act is
not particularly helpful to the author who fails to retain precisely
defined rights in his contract with the publisher. The exclusive rights
in copyrighted works listed in section 106134 may be subdivided
indefinitely, 135 and the grant of any of these rights may prove more
generous than would a transfer of "serial rights" as discussed above. 13 6
In summary, "serial rights," "first serial rights," and their
derivatives cannot be clearly defined. Therefore, the terms should be avoided
wherever possible. The parties ought to specify the language to be used
and name the markets, such as the United States, Canada, and
Mexico. The duration, or termination date, of the grant should also be
precisely stated. Finally, the wording of the grant should be specific. 137
A sample contract phrase might state:
The author grants to A magazine the exclusive right to publish "X" story for the first
time only. This grant shall not include the right to publish the work again in any form
as part of the same series or otherwise. Publication shall occur solely within the United
States, in the English language, for a term to terminate sixty days after first
The first sentence is a general grant of rights to publish for the first
time. The second sentence further limits the right to publish by
excluding any subsequent use of the work in the same series of A
magazine or otherwise. The third sentence states the market, the
134. 17 U.S.C.A. § 106 (West 1977).
135. See notes 97-99 supra and accompanying text.
136. See notes 117-23 supra and accompanying text.
137. See Shapiro, supra note 125, at 138.
language to be used, and the term of the grant. This would seem to be
a proper transfer of "copyright ownership," since such transfers may
be limited in time or place. 138 While the clause may seem unduly
restrictive, it nevertheless suggests the difference between what can be
clearly stated and what the term "first serial rights" leaves to
Another common term is "second serial rights." This is also referred
to as "reprint rights" 13 9 or "syndication rights.' 140 Just as "serial
rights" and "first serial rights," "second serial rights" has various
definitions. Generally, it refers to rights in a publication other than
that in which the work first appeared, perhaps subsequent to a grant
of serial rights. 14 1 More specifically, it usually allows a newspaper or
periodical to print an article, poem, or story after it has appeared in
some other newspaper or periodical. The term may also refer "to the
sale of part of a book to a newspaper or magazine after the book has
been published, whether or not there has been any first serial
publicatfon.,1 4 2
Curiously, even though "second serial rights" is a derivative of the
term "serial rights," it seems to have a life of its own. The definition is
separate and seems to be free of much of the confusion surrounding the
parent term. Under these circumstances, it has problems that can be
solved by adding information as to the language of the reprint, the
markets in which the reprint may appear, and the duration of the
grant. But if a clause contains this additional information, the trade
term "second serial rights" becomes superfluous. Such a clause might
read as follows: "The author grants to A magazine the exclusive right
to reprint in the English language, in the United States and Canada,
the 'X' story for a term to end sixty days after such publication." In
one sentence, the author specifies the nature of the rights granted to
reprint his story, the language of the publication, the markets in which
138. 17 U.S.C.A. § 101 (West 1977).
139. 1978 Writer's Market 26 (J. Koester & B. Hillman eds. 1978).
140. Henn, supra note 2, at 423 n.53. "Syndication rights" do not necessarily mean the
same as "second serial rights." As a subdivision of "serial rights," these rights grant to a
syndicated publication, such as a newspaper, the right to print a work throughout its chain. For
example, a book publisher may sell the rights to a newspaper syndicate to publish a book in 12
installments in each of 20 major newspapers. "Syndication rights" can be coupled with "first" or
"second serial rights." For example, if a book is published in the 20 papers prior to book
publication, the newspaper would be syndicating "first serial rights." On the other hand, if the
book came out in installments after book publication, the publisher would be syndicating -second
serial rights." Thus, "second serial rights" and "syndication rights" are not necessarily
synonymous, and this adds to the confusion of industry terms. See Sandhage Letter, supra note 117.
141. Henn, supra note 2, at 423 n.53.
142. Sandhage Letter, supra note 117.
the story may be published, and the terms of the grant. With a few
extra words, the possible confusion arising from the trade terms
"second serial rights," "syndication rights," or "reprint rights" can be
avoided. Further protection might be secured by providing that any
rights not specifically granted under the agreement are reserved to the
"Simultaneous" and "Nonexclusive
"Simultaneous rights" and "nonexclusive rights" appear to have
similar overlapping meanings. A grant of "nonexclusive rights" would
permit the grantee to publish the work without threat of an
infringement suit by the grantor, but would not bar similar grants to others. 143
A publisher's purpose in obtaining such rights may be to pay an author
a minimal sum for his work, while adding it to a collective work or
compilation with a value greater than that paid for its component
parts. Such a license may also be intended to secure rights only in a
particular language or in certain parts of the literary world. Thus, the
editor of A, a one-time publication printed for a special purpose, may
seek only to acquire from an author the "nonexclusive world rights in
the English language. ' 144 If the author receives such a contract, it
would be difficult to determine exactly what uses the publisher intends
to make of his work. Despite an absence of interpretive case law, the
new Act provides some indirect clarification of what such language
transfers. In section 101, a "copyright owner" is defined as anyone
holding one of the "exclusive" rights comprised in a copyright. 14 - Since
the license above is a nonexclusive right, the periodical would not be a
copyright owner, and would have no right to sue for infringement. 146
Therefore, the author would seem to have retained the future value of
The term "simultaneous rights" would apply to articles and stories
sold to publications such as religious periodicals, house organs, or club
publications, which do not have overlapping circulations. 147
"Simultaneous rights," unlike "nonexclusive rights," seems to be exclusive,
limiting publication to markets that do not overlap. In short,
"simultaneous rights" seems to grant an exclusive right to publish in a limited
geographic or market area. For example, one company in Los Angeles
and one in Maine may publish the same article on toolmaking at the
143. See note 158 infra and accompanying text.
144. Clearwater Sloop Restoration, Inc., From the Hudson to the World: The Voices of a
River (1977) (contract form from editor, Charles Hayes).
145. 17 U.S.C.A. § 101 (West 1977). Note that the term "transfer of copyright ownership"
expressly excludes nonexclusive licenses as transferable property interests.
146. Id. § 501.
147. 1978 Writer's Market 26 (J. Koester & B. Hillman eds. 1978).
same time in their respective company newsletters without infringing
upon the other's "simultaneous rights." Both publications may
distribute and publish simultaneously, but they are limited geographically
to their respective markets. However, since the "simultaneous rights"
are exclusive, the Los Angeles company could sue as a "copyright
owner" if the Maine publication was distributed in Los Angeles.
Alternatively, the Maine company and the Los Angeles company
could each obtain a "nonexclusive license" to publish the article on
toolmaking. Where the circulations of the two newsletters do not
overlap, "simultaneous rights" and "nonexclusive rights" in effect both
give the same right to each company to publish the same work at the
same time. "Nonexclusive rights" is a less restrictive term, however,
because it permits the two publishers to overlap the distribution of the
toolmaking article in their respective periodicals. Rather than leaving
such subtleties latent in their agreement, the parties may prefer either
to avoid these terms or to define their meaning adequately. This will
avoid unfortunate misunderstandings. For example, assume A
magazine wants to ensure that its circulation does not overlap that of
B magazine, but acquires "nonexclusive rights" rather than
"simultaneous rights." B magazine's circulation competes with and reduces A
magazine's sales. Since A magazine's rights are not exclusive, it cannot
maintain any copyright action against the other magazine. The point is
that a contract should set out exactly the elements of the publication
rights for both magazines. Here, the rights of the publishers would be
prejudiced, and litigation might ensue, merely because precise language
was not used in a contract acquiring copyrights.
"All Rights" or "Complete Rights"
No rights which may be transferred by an author are more
important than "all rights" or "complete rights." To part casually with these
rights may result in the loss of every right included in the author's
copyrighted work. If "all rights" are given to a periodical, the author
may not use his work for television, theater, or any other commercial
enterprise. It is no longer his property. He, the creator, is a stranger to
his work, and can be sued for infringing upon it. Even if his name
appears at the end of the story, the periodical owns every conceivable
right to it. The author cannot even prevent revisions in his work by
the publisher. If the copyright is considered as divisible into an infinite
number of lesser included rights, the publisher owns them all. 148
148. Notwithstanding, the author would still seem to be considered a "copyright owner" for
the purposes of registering the copyright in his work. "We are considering whether, after an
author has transferred 'all rights' in a work, that author may seek a basic registration. Where an
author retains a royalty interest in the exploitation of his or her work by a transferee of the rights,
Unfortunately, the meaning of "all rights," like that of other
commercial rights, is not always self-evident. In Geisel v. Poynter
Products, Inc., 149 the famous Dr. Seuss tried to enjoin the defendant from
producing dolls and cartoons based on his characters. The plaintiff
introduced evidence of magazine trade usage that the terms "all rights"
or "complete rights," which were admiittedly what he contracted to
transfer, merely included the "right to publish that particular piece of
material in a single issue ... or, in the case of serial rights, to publish
parts of the material in several or more issues." 15 0 Dr. Seuss further set
forth causes of action based on the Lanham Act, the right to privacy,
unfair competition, defamation, and prima facie tort, basically alleging
that "all rights" did not give the defendant the right to convert his
stories into dolls or cartoons that injured his reputation.15 1
"All rights" in the context of sales to periodicals could arguably
mean only all rights in the first publication of the work, wherever it is
to be published, and in whatever form or language.152 A periodical's
business is primarily initial publication. Nevertheless, the Geisel court
found that "all rights" or "total rights" meant the "totality of rights...
without qualification"' 1- 3 and decided for the defendants on all causes
of action. In view of such potential misunderstandings, the parties
would be well advised not to leave such critical questions open.
One writer has described the situation in this way:
Of course, these questions arise only when the agreement between the parties is silent
on the subject. As such, they are remediable deficiencies that might have been
obviated had the parties expressly or by necessary implication spoken on the point.
Not infrequently the parties deal so meagerly with this important question of the scope
of rights that no more than a short abbreviated legend or notation will be found on the
face or back of the publisher's payment check or on the detachable voucher
accompanying it. This seems strange indeed, since the parties involved are men whose
the author remains a beneficial owner of the copyright and, we believe, should be entitled to
make a basic registration for the work. Even where the author has not retained a continuing
financial interest in the exploitation of the work, it appears questionable whether that author
should be considered any less a copyright owner for the purpose of registration, or be otherwise
deprived of the right to secure a basic registration for the work he or she has created." Copyright
Office Notice of Inquiry, 42 Fed. Reg. 48,945 (1977) (footnote omitted).
149. 295 F. Supp. 331 (S.D.N.Y. 1968).
150. Id. at 339.
151. Id. at 351-58.
152. Cf. Burton, Business Practicesin the Copyright Field, 1952 Copyright Prob. Analyzed
(CCH) 87, 98 ("In connection with the purchase of fiction stories the question of split rights arises.
If there is equal bargaining power between the parties, the magazine gets the magazine rights,
while the book rights, screen rights, etc., may be reserved to the author.").
153. 295 F. Supp. at 342; see 2 M. Nimmer, Copyright § 119.32, at 520 (
doubts that, given the importance of the commercial value of exclusive rights, the Geisel decision
remained sound even under the old Act. Id.
business it is to deal in words-editors and authors. Yet, I have frequently found them
reluctant 5to4 formalize or even to say out in reasonable detail just what rights are
Thus, whether there be a full contract or a mere legend stamp, the
parties should take care to define the scope of their rights to avoid
transferring away what they in fact intended to keep.
THE SIGNIFICANCE OF THE TRANSFER OF
A. A Comparison of the New and Old Copyright Acts
Prior law gave only the author or his assignee the right to secure the
copyright in a work.155 Since the copyright was indivisible,,5 6 it
followed that a transfer of less than all of the rights included in the
author's copyright gave the transferee nothing which he could secure
under the copyright law. A transfer of less than all of the rights
included in a copyright was a mere "license" rather than an
"assignment. 1 5 7 Since a licensee could not sue upon or secure a copyright as
could an assignee, the distinction was crucial, and much has been
written about it. 15 8
Licenses are usually personal, contractual rights and are strictly
construed. "Any assignment of a copyright which does not convey the
entire unqualified monopoly of the copyright proprietor . . .is to be
deemed a license rather than an assignment."' 5 9 Also, a license may be
exclusive or nonexclusive. If nonexclusive, according to Professor
Henn, "the grant operates as a covenant by the licensor not to sue the
licensee for exercising rights under the license. ' 160 If, on the other
hand, the license is exclusive, the licensor promises that he will neither
sue the licensee for using the rights, nor grant similar rights to another,
preserving the exclusive rights in trust for the benefit of the licensee. 16 '
lUicseunasleley,, tihne trhieghtasbsceanncneotofbeagsruebelmiceenntsebde.t1w62een the proprietor and
The distinction of exclusive, indivisible copyrights and other lesser
rights or licenses was important in the area of periodical rights. One
case that underlined this importance was Dam v. Kirk La Shelle
Co.,1 63 which involved the sale of a story by Dam, the author, to
Smart Set magazine. As was the custom in the trade, the only writing
involved was a check stub stating that it was "in full payment for the
story entitled, 'The Transmogrification of Dan.' ",164 The story was then
published under the general copyright notice of the periodical, with no
separate author's notice on the story. Notwithstanding its brevity, the
check stub served to determine Dam's rights in his work. If the stub
was effective to transfer all possible rights to the periodical, then the
publisher would have been the copyright proprietor and its general
copyright notice would have secured all rights in the story. But if only
the right of first publication was transferred, then the periodical was a
licensee, not entitled to secure a copyright, 165 and the story would
have entered the public domain. 166 Assisting the unfortunate author to
keep his rights, the court construed the situation so as to find the
publisher the copyright proprietor, a status which permitted the
periodical's notice to protect the copyright, which had been assigned
back to Dam. 167
The decision showed the dangers of the indivisibility theory, and
authors since then have fought to change it. 168 As stated earlier, 169 the
fight was successful and the indivisibility theory has been abolished.
Were the Dam case to be decided under the new law, the author
would prevail without having to find a transfer and assignment back
of the copyright.
Under the new Act, the owner of any one of the exclusive rights is a
copyright owner and can bring suit to protect against infringement of
the rights he holds. The exclusivity of a transferred right is not tested
by the license-assignment distinction, as in Dam. The broad scope of
the definition of a "transfer of copyright ownership" 170 would change
the analysis in the case. Whether or not the check stub was an
assignment of all rights becomes irrelevant, and the inquiry as to
whether the author could divide his copyright into limited parts is
moot. The deciding factor would be that Dam had no written contract
with Smart Set, and therefore the periodical would be presumed to
have acquired only the privilege of reproducing and distributing his
story for the first time.17 1 The check stub sent with payment would not
amount to an express transfer of ownership rights, since a transfer of
copyright ownership must be in writing and signed by the owner to be
valid. 17 2
At the time of that publication, no determination of whether the
periodical is a "proprietor" would be necessary to determine whether
the general copyright notice protected the work. Dam would be the
owner of all rights comprised in his copyright, except for that of first
publication, since all rights initially vest in the author. 173 The
publication of the story without separate notice would not put his work into
the public domain since a general notice on a collective work is
sufficient to protect an individual contribution. 1 74 Yet the general
notice would be defective in that it names Smart Set as the owner, and
it would be advisable for the author to register his copyright
separately. 175 Registration of the copyright is a prerequisite to an infringement
suit. 176 Having satisfied the prerequisites, Dam could successfully sue
the defendant for infringement, using all available remedies,17 7 with
some reduction in damages if the defendant showed that he infringed
the copyright innocently. 17 8
While the Damn case illustrates the role of the new Act in protecting
authors, the case did not clarify what rights a periodical might acquire
in a contract using trade terms, such as "American serial rights." To
demonstrate the significance of such a transfer under present law,
Eliot v. Geare-Marston, Inc. 179 may be reconsidered. 180 In Eliot, the
author sold "all rights" in her story to a publisher, and the publisher
later assigned back to her "all rights in the article, except American
serial rights. ' 181 In applying the assignment-license distinction which
171. See note 83 supra and accompanying text.
172. Id. § 204(a).
173. Id. § 201(a).
174. Id. § 404(a).
175. See note 85 supra.
176. See note 43 supra and accompanying text.
177. 17 U.S.C.A. §§ 501-510 (West 1977).
178. See id. § 405(b).
179. 30 F. Supp. 301 (E.D. Pa. 1939).
180. See prior discussion in text at notes 131-36 supra.
181. 30 F. Supp. at 302.
was then crucial, the court held that the author was a mere licensee
since the publisher evinced no clear intent to reconvey the entire
copyright to the author. 182 As one writer put it:
In other words, the magazine publisher . . . was termed the proprietor, while the
author, having all the other rights, wvas deemed a mere licensee. This left the contributor
in the awkward position of having the entire copyright, other than magazine rights,
but with no right to transfer or sub-license these rights, as a licensee cannot transfer or
sub-license any of his rights as licensee without the consent of the licensor. This is
indeed an anomaly, as the greatest commercial value inherent in the various rights
embodied in a copyright lies in the power to transfer such rights for a consideration.
Yet, here the author-the person the Constitution intended to protect in order to
promote the progress of the arts-is left in a precarious position.283
Thus, the author in Eliot, though in control of most of her copyright,
was blocked from further marketing of her work. The Eliot decision,
in effect, converted limited periodical rights into the controlling
interest of the author's copyright. Thus, not only was it difficult to define
the meaning of a term such as "American serial rights,"' 84 but prior
law also tended to include in these rights more control than a
periodical may have wanted or needed.
Under the new Act, an author such as Eliot could likewise transfer
all of the rights included in her copyright to a periodical, provided the
transfer was in writing.18 5 The periodical would probably demand
such a writing since, in the absence of a writing signed by Eliot, it
could only acquire the right to publish the work for the first time. 186
The periodical would record the transfer of copyright ownership, and
Eliot would do the same when rights were assigned back to her.'8 7
Upon this reassignment, Eliot would possess all of the exclusive rights
in copyright except "American serial rights," and could subsequently
transfer ownership rights to display the work or create derivative
works. To know the full scope of rights reconveyed to her, Eliot
should have agreed to a clearer expression of which rights the
periodical could keep, since the meaning of "American serial rights ' is
not self-evident. In this way, she might not only have avoided
infringing on the periodical's retained rights, but also could have marketed
her story to the greatest degree.
In summary, a review of the Eliot and Dam cases in light of the new
182. Id. at 306.
183. Caterini, Contributions to Periodicals, 10 ASCAP Cdpyright L. Symp. 320, 345-46
(1959) (footnotes omitted).
184. See notes 131-36 supra and accompanying text.
185. 17 U.S.C.A. § 204(a) (West 1977).
186. Id. § 201(c); see note 83 supra and accompanying text.
187. Id. § 205.
Act suggests three important points. First, the assignment-license
distinction is no longer controlling, since all transfers must be viewed
in terms of copyright ownership. Second, an error such as that in
Dam's notice would today be curable because the new Act
deemphasizes the role of notice. Finally, Dam could today successfully
maintain an infringement suit after registering his copyright, provided
he did so promptly and affixed notice on the copies of Smart Set not
yet purchased by the public. As for Eliot, her rights under the new Act
would depend on whether the transfers in question were written,
signed, and recorded, and on how clearly the transferred rights were
Commercial and Economic Significance of Copyright Ownership
While there is an economic analysis to the effect that copyright
should be limited because it increases costs and restricts
competition, 8 8 much can be said to encourage the use of copyright. Today,
mhny authors are completely unaware that they can preserve for
themselves the fruits of their labor. The promotion of the arts can be
advanced through a business-like approach that encourages authors to
derive the maximum economic benefit from their skills. The new
Copyright Act should be understood by writers so that they may
choose whether or not to use its protections. Yet, copyright may
guarantee little in a business sense. For example, a timely human
interest piece on coal miners may be interesting today for periodical
publication, but have little future value. Therefore, an author of such
a piece will consider whether the cost of registration and depositing
best editions outweighs the limited value of securing the copyright. An
author who writes a feature article on a movie star for a periodical
may find that the copyrighting cost exceeds the probable future value
of the work.
Even when it makes economic sense to secure a copyright, the
author may have little power to bargain with a publisher who will not
print the story unless the author surrenders all rights in it. Should
authors avoid such periodicals and forego the possibility of publishing
in them? When copyright is viewed from a practical standpoint, the
really hard question may not be the meaning of trade terms or the need
for a written contract, but rather whether or not the author can
publish while retaining significant rights. Only a seasoned author can
command such a balance. The copyright law should operate for new
writers and freelancers of all sorts just as it does for established
Articles, poems, stories, and all other writings for periodical
publication can be protected under the copyright laws. Copyrights may be
transferred in the form of ownership rights. These rights may be
subdivided indefinitely, and may be exclusive or nonexclusive.
Periodicals may seek to acquire these rights by using trade terms which
lack definition and precision. Accordingly, an author should negotiate
to ensure that any written agreement to transfer rights in his work is
specific, avoiding or defining these trade terms and limiting grants in
time and place. Markets and languages should also be specified. This
is important because income is derived from the exploitation of these
rights, and the author-copyright owner should attempt to maximize the
legal and economic rights in his own cieation.
While it may increase the cost of books and restrict competition, the
author's copyright is guaranteed by the Constitution and copyright
protection encourages the creation of the arts. Thus, a copyright owner
should preserve his rights, and at the same time undertake to earn a
profit from his creation. An author should be aware that the transfer of
copyright ownership involves significant commercial and economic
rights. In the new Copyright Act, Congress has emphasized the
importance of a written conveyance of such rights. All parties who
convey rights after January 1, 1978, should, in the interests of both
authors and the periodicals in which their works are published, follow
this congressional intent.
2d Sess., Copyright Law Revision, Study No. 3-The Meaning of "Writings" in the Copyright
Clause of the Constitution 67 (Comm. Print 1960 ). 10 . Dellar v. Samuel Goldwyn , Inc., 150 F.2d 612 , 612 ( 2d Cir . 1945 ), cert. denied, 327 U.S.
790 ( 1946 ). 11 . 17 U.S.C.A. § 102 (b) ( Vest 1977 ). 12 . § 102 (a). 13. H. Rep., supra note 8 , at 52, [19761 U.S. Code Cong. & Ad. News 5665 . 14 . 17 U.S.C.A. § 410 (a) ( West 1977 ). Whether the Register in fact examines every work for
Appraisal of Certain Exclusionary Regulations , 18 ASCAP Copyright L. Synp . 1 ( 1970 ). 15 . 17 U.S.C.A. § 102 ( a)(1) (Vest 1977); see H. Rep ., supra note 8 , at 53, [19761 U.S. Code
Cong. & Ad. News 5666 . "Literary works" is defined to include "works, other than audiovisual 24 . Id. § 104 ( bX3 ). 25 . See H. Rep ., supra note 8 , at 58 , (1976] U.S. Code Cong . & Ad. News 5671 . 26 . 17 U.S.C.A. § 104 ( 4 ) ( West 1977 ). 27 . Id . § 101 . 28. Henn, CopyrightLaw Revision: Paragonor Paradox?,44 N.Y.U.L. Rev. 477 . 491 ( 1969 ). 29. S. Rep . No. 94 - 473 , 94th Cong., 1st Sess . 112 - 13 ( 1975 ). 30 . 17 U.S.C.A. § 104 (West 1977 ). 31 . Id . § 301 . 32. Under prior law, the proper position varied. In the case of a book, the notice would be
affixed to the title page or the page immediately following . Henn, supra note 2 , at 451. In
the work lost to the public domain . See Booth v. Haggard , 184 F.2d 470 ( 8th Cir . 1950 ). 33 . 17 U.S.C.A. § 401 (c) ( West 1977 ). See generally Gottlieb & Cooper , Copyright Notice, 44 . 17 U.S.C.A. § 410 (a) ( West 1977 ). 45 . Id . § 409 . 46. Id . § 409 ( 4 ). The subject of works for hire, while related to transfer of ownership rights to
the language of the new Act, see Angel & Tannenbaum, Works Made for Hire Under S . 22 , 22
N.Y.L. Sch. L. Rev . 209 ( 1976 ). 47 . 17 U.S.C.A. § 409 ( 1 ) ( West 1977 ). 48 . Id . § 407 (c). 49 . Id . § 407 ( aX1 ). For works published abroad, the deposit requirement becomes effective
note 8 , at 151,  U.S. Code Cong . & Ad. News 5767 . 50 . 17 U.S.C.A. § 101 (west 1977 ). 51 . Compare Bouve v. Twentieth Century-Fox Film Corp., 122 F.2d 51 , 54 (D.C. Cir . 1941 )
(discretion of Register held judicially reviewable), with H. Rep ., supra note 8 , at 151,  U.S.
Code Cong . & Ad. News 5767 ( Library of Congress entitled to copy it believes "best suits
its needs"), and 17 U.S.C. A . § 101 (West 1977 ) (best edition that which Library of Congress
Library of Congress Best Edition Statement , 43 Fed. Reg. 763 ( 1978 ). 65. H. Rep ., supra note 8 , at 135,  U.S. Code Cong . & Ad . News 5751; see Jackson ,
Duration of Copyright Under S. 22 , 22 N.Y.L. Sch. L. Rev . 241 ( 1976 ). 66 . See 17 U.S.C.A. §§ 203 ( a ), 304 (c) ( West 1977 ); Melniker & Melniker, Termination of
Transfers and Licenses Under the New Copyright Law , 22 N. Y.L. Sch. L. Rev . 589 ( 1977 );
Nimmer , Termination of Trans. (ers Under the Copyright Act of 1976 , 125 U. Pa . L. Rev. 947 ,
977- 82 ( 1977 ). 67 . See H. Rep ., supra note 8 , at 140,  U.S. Code Cong . & Ad. News 5756 . 68 . 17 U.S.C.A. § 201 (a) ( West 1977 ). 69 . Id . § 201 ( d)(1). There is a distinction between copyright ownership and ownership of tile
id. § 202 . 70. These include the rights to reproduce the work, to prepare derivative works , to distribute
copies, to perform the work publicly, and to display the work publicly . Id. § 106 ; see notes
98- 106 infra and accompanying text. 71 . 17 U.S.C.A. § 201 ( dX2 ) ( West 1977 ). 72. H. Rep ., supra note 8 , at 123,  U.S. Code Cong . & Ad . News 5738- 39 . Prior to
90- 106 infra and accompanying text. 73 . 17 U.S.C.A. § 201 ( d)(1) (West 1977) . Although a copyright may be transferred by
operation of law, no government authority can compel involuntary transfer . Id. § 201 (e). This
example, that the Internal Revenue Service cannot secure a tax lien upon an author's copyright . 86. H. Rep ., supra note 8 , at 122,  U.S. Code Cong. , & Ad. News 5738 . 87. H.R. Rep . No. 83 , 90th Cong., 1st Sess . 88 ( 1967 ). 88 . Even Mark Twain is said to have "sold the copyright for Innocents Abroad for a very
small sum. " Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643 , 653 ( 1943 ). 89 . See Curtis , Protecting Authors in Copyright Transfers: Revision Bill § 203 and the
Alternatives , 72 Colun. L. Rev. 799 ( 1972 ). "The unadvised fledgling author may be tempted to
the alternative contractual provisions available to protect his rights . " Id. at 811 . 90. See , e.g., Goldwyn Pictures Corp . v. Howells Sales Co., 282 F. 9 ( 2d Cir . 1922 ). cert.
denied , 262 U.S. 755 ( 1923 ); Henn, supra note 2, at 418 n.36. 91 . Cambridge Research Institute, Omnibus Copyright Revision 107 ( 1973 ). 92 . Henn, supra note 2, at 418 n.36. 93. Id. at 417-18 . 94 . 17 U.S.C. § 1(a), (d)- (f) ( 1970 ). 95 . Henn, supra note 2, at 421. 96. E.g., Brady v. Reliance Motion Picture Corp ., 229 F. 137 ( 2d Cir . 1916 ) ; see Miller,
Problems in the Transfer of Interests in a Copyright, 10 ASCAP Copyright L . Symp. 131 ( 1959 ). 97 . For a review of the legislative history outlining the attempts to provide for divisibility, see
Senate Comm. on Judiciary, 86th Cong., 2d Sess ., Copyright Law Revision, Study No.
11-Divisibility of Copyrights 31-37 (Comm. Print 1960 ) 98 . 17 U.S.C.A. § 106 (West 1977 ) ; see H. Rep ., supra note 8 , at 61-65, [19761 U.S. Code
Cong. & Ad. News 5674-78 . 99. H. Rep ., supra note 8 , at 61,  U.S. Code Cong . & Ad . News 5674. The new Act
recognizes the divisibility of copyright . See 17 U.S.C.A. § 201 (d) ( West 1977 ). 100 . Apparently, either periodical could register the copyright for the work and this would
owners and their rights. (The author of the work will be identified .) As indicated earlier, we 106 . See H. Rep ., supra note 8 , at 62,  U.S. Code Cong . & Ad. News 5675 . 107 . 17 U.S.C.A. § 106 (Vest 1977 ). 108 . See discussion in text accompanying notes 97-106 supra. 109 . 1978 Writer's Market 26 ( J. Koester & B. Hillman eds. 1978 ). Other common terms
and "television rights." See Henn, supra note 2, at 420. 110. See 21 Am. Jur. 2d Customs and Usages §§ 22 , 24 ( 1965 ). There may be some question
Ballentine , 351 U.S. 570 ( 1956 ), the Court applied state law in deciding whether certain
state, rather than federal law." Id. at 580. But see note 31 suspra and accompanying text. 111 . See Murphy v. Warner Bros. Pictures , Inc., 112 F.2d 746 ( 9th Cir . 1940 ); Avedon v.
2. 154 . Wasserstrom , Magazine, Newspaper and Syndication Problems , 1953 Copyright Prob.
Analyzed (CCH) 159 , 165 . 155. Mifflin v. R.H. White Co ., 190 U.S. 260 , 262 ( 1903 ). 156. See note 90 supra and accompanying text. 157 . 2 M. Nimmer , Copyright § 119 .1 ( 1976 ). 158 . Senate Comm. on Judiciary, 86th Cong., 2d Sess ., Copyright Law Revision, Study No.
11-Divisibility of Copyrights 1-81 (Comm. Print 1960 ); 2 M. Nimmer , Copyright §§ 119 - 30
( 1976 ) ; Bergstrom, The Businessman Deals with Copyright, 3 ASCAP Copyright L . Symp. 249 ,
266 ( 1940 ); Caterini, Contributionsto Periodicals, 10 ASCAP Copyright L. Symp. 421 ( 1959 ). 159. A. Weil, American Copyright Law 545- 46 ( 1917 ). 160 . Henn, supra note 2, at 431. 161. Stephens v. Howells Sales Co., 16 F. 2d 805 (S.D.N .Y. 1926 ). 162 . Sauer v. Detroit Times Co., 247 F. 687 (E.D. Mich . 1917 ). 163 . 175 F. 902 ( 2d Cir . 1910 ). 164 . Id. at 903 . 165. See , e.g., Mail & Express Co. v. Life Pub. Co., 192 F. 899 ( 2d Cir . 1912 ). 166 . See note 3 supra and accompanying text . 167 . 175 F. at 904- 05 . 168 . Senate Comm. on Judiciary, 86th Cong., 2d Sess ., Copyright Law Revision, Study No.
11-Divisibility of Copyrights 5 (Comm. Print 1960 ). 169. See notes 98-99 supra and accompanying text. 170. See note 76 supra and accompanying text. 188 . Breyer , The Uneasy Casefor Copyright: A Study of Copyright in Books , Photocopies,
and Computer Program , 84 Harv. L. Rev. 281 ( 1970 ).