well as in public. Likewise, the exercise of the right of mechanical reproduction of a musical composition would seem to belong exclusively to the author or proprietor, free from the so-called compulsory license provisions in section 1(e).

Statutory Rights (Section 11)

The Act of 1909 departed from the historic policy of restricting statutory copyright to published works by providing in section 11:

"That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be a lecture or similar production [Class (c)] or a dramatic or dramatico-musical composition [Class (d)] or a musical composition [Class (e)]; of a photograph or other identifying reproduction thereof, if it be a work of art [Class (g)] or a plastic work or drawing [Class (i)]; of a photographic print if the work be a photograph [Class (j)]; of a title and description, with one print taken from each scene or act, if the work be a motion-picture photoplay [Class (1)]; of a title and description, with not less than two prints taken from different sections of a complete motion picture, if the work be a motion-picture other than a photoplay [Class (m)]."

This act of grace was accorded these particular classes because they are primarily adapted for performance or exhibition and may achieve their purpose without being reproduced in copies for sale or public distribution. This section, therefore, being an exception to the general rule, must be deemed limited in its operation to the kinds of works specifically named therein. Kreymborg v. Durante, 22 USPQ 248 (1934). Unpublished scripts orally delivered via the radio would undoubtedly be included here, as similar productions to lectures. As remarked by the court in the Kreymborg case, "In its mention of a production similar to a lecture, sermon or address, Congress plainly meant a production likewise intended in the first instance for oral communication. A speech, argument, debate, interview, perhaps even an informal talk, would be a 'similar production"."

"Not Reproduced for Sale"

The phrase "not reproduced for sale" has been construed to

*The sequence of classes in section 11 has been changed somewhat to agree with the order in section 5.

be practically equivalent to "unpublished" at the time deposit is made. "The Act recognizes expressly in section 11 copyright in an unpublished work." Leibowitz v. Columbia Graph Co., 298 F. 342 (1923). So also in Patterson v. Century Productions, 35 USPQ 471 (CCA 2, 1937): "Thus the Copyright Act of 1909 departed from the previous limitation of a statutory copyright to published works . . . and as the plaintiff did in the first instance comply with section 11 his copyright so obtained was valid for an unpublished work and so long as it remained unpublished he was not required to do more to keep his copyright valid for the statutory period." Here the subject matter was a motion picture actually reproduced in copies at the time and exhibited under restricted conditions, but not as yet commercially exploited by sale or public distribution.

Congress itself, in the amendatory Act of 1928 respecting copyright fees, put its seal of approval on this interpretation in providing that "in the case of any unpublished work registered under the provisions of section 11, the fee for registration with certificate shall be $1."

However, as already noted in connection with the question of publication (p. 57), a work may be published in other ways than by reproduction in copies for sale, such, for example, as paintings and statues exposed in public without restrictions as to copying, the originals of which are eligible for registration under this section even though so exposed to public inspection. Duration of Copyright under Section 11

The constitutionality of section 11 has been questioned because there is no express provision made in the Act for the duration of the copyright sought to be secured thereunder. Article 1, Section 8, clause 8 of the Constitution requires that the exclusive right granted by Congress shall be for a "limited" time. Section 8 of the Act provides that the copyright secured for any work shall endure "for the terms specified in this Act." Section 23 provides "That the copyright secured by this Act shall endure for twenty-eight years from the date of first publication", subject to renewal for a like term.

A literal reading of this clause in section 23 obviously leaves the problem unsolved for unpublished works deposited under section 11. But, as remarked by the Supreme Court in American Tobacco Co. v. Werckmeister, 207 U.S. 284 (1907), "in constru

ing a statute we are not always confined to a literal reading, and may consider its object and purpose, the things with which it is dealing, and the condition of affairs which led to its enactment, so as to effectuate rather than destroy the spirit and force of the law which the legislature intended to enact" (the good old maxim ut re magis valeat quam pereat).

The question came up for consideration in the recent case of Marx v. United States, 37 USPQ 380 (CCA 9, 1938), and the court commented as follows:

"Congress manifestly intended to extend the benefits of the copyright laws to authors of unpublished works as well as to those whose works are published. It is not to be assumed that a more extended measure of protection was intended to be given the former than the latter. Legislative enactments are to be construed, if possible, in such way as to render them constitutional. N. Y. Central R. Co. v. United States, 212 U.S. 481. The particular act has been on the statute books since 1909, and so far as we know has not heretofore been subjected to attack. Long acquiescence in the constitutionality of legislation creates a strong assumption in favor of its validity."

The court further remarked that inasmuch as the word "publication" has no definite and fixed meaning, it may, as used in section 23, reasonably be thought to mean one thing as related to published works and another as related to copyrighted works of which copies are not reproduced for sale; and that in view of the declared purpose of Congress to limit the first term of all copyrights to 28 years, section 23 should be construed, in the case of works of which copies are not reproduced for sale, as having reference to the date of deposit.

So also in Patterson v. Century Productions, 35 USPQ 471 (CCA 2, 1937), the court held the copyright of the unpublished motion picture secured under section 11 to be "valid for the statutory period", which could be none other than 28 years from the date of the requisite deposit with claim of copyright.

The question is of vital importance in connection with the procedure for securing renewals, which must be applied for within the last year of the copyright term. For example, if the copyright was secured on December 1, 1914, for a work not reproduced in copies for sale, the renewal application should be filed in the Copyright Office within the year beginning December 1, 1941, and ending November 30, 1942, notwithstanding that

the same work might have been reproduced for sale or public distribution some months or even years subsequent to the original deposit under section 11.

Abandonment of Common-law Rights

Under the prior law, which contemplated statutory copyright only for published works,* the Supreme Court held that once a copyright had been secured the remedies for infringement at common law were thereby abandoned and had to be sought under the statute in the federal courts. Globe Newspaper Co. v. Walker, 210 U. S. 356 (1908); Caliga v. Interocean Newspaper, 215 U. S. 182 (1909). The same ruling applies to a copyright secured by deposit under section 11. In Universal Film Co. v. Copperman, 218 F. 582 (CCA 2, 1914), the court held that "The Nordisk Company [complainant's assignor] abandoned its common-law property in the United States when it took out the statutory copyright . . . under section 11 of the Act of 1909." And in Photo-drama v. Social Uplift Film Corp., 220 F. 448 (CCA 2, 1915), the same court remarked:

"We do not concur in Judge Hand's holding that one who has obtained statutory copyright of a book or play has left in him any common-law right in literary property by virtue of section 2 of the Act. We think that section is intended only to indicate that the statute does not displace the commonlaw right. Whoever elects to avail himself of the statute. however, must be held to have abandoned his common-law right." The same principle was applied (with a distinction) in the recent case of Loew's Incorporated v. Superior Court of Los Angeles County, 50 USPQ 641 (1941). In this case action was brought in the state court for infringement of the performing right of a play, but inasmuch as the proprietor had previously copyrighted the play by deposit of a copy in the Copyright Office under section 11, the court held that the action should have been brought in the federal court. As aptly remarked by the court: "The existence concurrently of the common-law and statutory copyright, as is here claimed, would permit the owner of the statutory copyright of exclusive representation to seek the advantages of the statute and at the same time to reject its disad

* Nevertheless, as the files of the Copyright Office abundantly show, many thousands of dramas were deposited under the old law in typewritten and even handwritten form, from which it is reasonable to suppose that no actual publication had taken place, and therefore the common-law right of performance and publication was not necessarily abandoned.

vantages." The court also remarked that "the author or his assignee still has the common-law right of first publication, redress for the infringement of which is also assumed may be sought in the state courts". However, section 1 of the Copyright Act secures to the author or proprietor the exclusive right not only to perform the copyrighted drama but also the exclusive right to print and publish the same, the violation of which would be an infraction of the federal law and therefore the remedy should be sought in the federal courts in accordance with section 34 of the Copyright Act and section 256 of the Judicial Code, which require all actions, suits or proceedings arising under the copyright law to be brought in such courts. A suit for infringement of the publication right would be such a proceeding; otherwise it is difficult to conceive what the law-makers had in mind.

Among the advantages of registration under section 11, as compared with the common-law right, are (1) the certificate of registration is prima facie evidence of ownership of a valid copyright; (2) suit for infringement can be brought in the federal courts irrespective of diversity of citizenship; and (3) it gains statutory damages where actual damages and profits cannot well be ascertained.

On the other hand, the disadvantages are (1) the term of protection is limited in duration as against the common-law right in perpetuity; and (2) the common-law rights are more exclusive in some respects than the statutory rights, as noted at the beginning of this Chapter.

Deposit of Copies after Reproduction for Sale

The concluding sentence of section 11 reads:

"But the privilege of registration of copyright secured hereunder shall not exempt the copyright proprietor from the deposit of copies, under sections 12 and 13 of this Act, when the work is later reproduced in copies for sale."

The primary purpose here is to secure two copies of "the best edition" for the Library of Congress as a condition upon the right to bring suit for infringement occurring after publication. Mittenthal v. Berlin, 291 F. 714 (1923). It is not entirely clear from a reading of sections 11 and 12 taken together that anything more is required than to make the deposit of such copies. Inasmuch, however, as under the concluding sentence of section 12 no action or proceeding can be maintained for infringement