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PICTURE MUSIC, INC. v. BOURNE, INC.
Cite as 457 F.2d 1213 (1972)

1215

appellant, as Miss Ronell’s assignee, seeks an adjudication that since 1960 it owned one-half interest in the copyright of the song, together with an accounting of one-half the profits from that date. Appellee has counterclaimed for infringement, alleging as a basis for its claim a new edition of the song published by appellant in 1961. The trial court rejected appellant’s claim of ownership and sustained appellee’s claim of infringement.

Bourne offered alternative theories in support of its claim to total ownership of the song: (1) that Miss Ronell’s contribution was not substantial enough to constitute authorship, and (2) that her contribution was “done for hire,” see 314 F.Supp. at 644, and that the “proprietor” was thus entitled to the renewal copyright under Section 24 of the Copyright Act, 17 U.S.C. § 24 (1970).^[1] In finding for the appellee, 314 F.Supp. at 647, the trial court appears to have relied principally on the first theory, though it also suggests a theory of assignment in its finding that the conduct of the parties shows that Miss Ronell intended to convey all rights to the work in return for royalties and credits, id. at 652–653. Though the trial court discussed the work for hire doctrine, id. at 650–651, it did not explicitly rule on that issue.

We affirm the judgment, but do so on the ground that the findings of the trial court establish the conclusion that Miss Ronell’s contribution was work done for hire within the meaning of that term as it is used in the statute.^[2] In view of this result we need not reach the issue of whether Miss Ronell’s efforts were sufficient to make her an author, or whether she assigned her rights.

As this Court said in Shapiro, Bernstein & Co. v. Bryan, 123 F.2d 697, 700 (2d Cir. 1941), “when the employer

claimants to register, without making any determination as to the validity of their claims. See Ringer, Renewal of Copyright, in 1 The Copyright Society of the U.S.A., Studies on Copyright 537 (1963).

↑ § 24. Duration; renewal and extension

The copyright secured by this title shall endure for twenty-eight years from the date of first publication, whether the copyrighted work bears the author’s true name or is published anonymously or under an assumed name: Provided, That in the case of any posthumous work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopedic or other composite work, the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author’s executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in default of the registration of such application for renewal and extension, the copyright in any work shall determine at the expiration of twenty-eight years from first publication.
↑ We may uphold the judgment on any theory which finds support in the record, regardless of the trial court’s conclusions. Helvering v. Gowran, 302 U.S. 238, 245–246, 58 S.Ct. 154, 82 L.Ed. 224 (1937).

In reviewing a determination that a work was or was not done for hire, we are not bound by the “clearly erroneous” standard. Donaldson Publishing Co. v. Bregman, Vocco & Conn, Inc., 375 F.2d 639, 641 (2d Cir. 1967), cert. denied, 389 U.S. 1036, 88 S.Ct. 768, 19 L.Ed.2d 823 (1968).

[2] § 24. Duration; renewal and extension

The copyright secured by this title shall endure for twenty-eight years from the date of first publication, whether the copyrighted work bears the author’s true name or is published anonymously or under an assumed name: Provided, That in the case of any posthumous work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopedic or other composite work, the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author’s executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in default of the registration of such application for renewal and extension, the copyright in any work shall determine at the expiration of twenty-eight years from first publication.

[3] We may uphold the judgment on any theory which finds support in the record, regardless of the trial court’s conclusions. Helvering v. Gowran, 302 U.S. 238, 245–246, 58 S.Ct. 154, 82 L.Ed. 224 (1937).

In reviewing a determination that a work was or was not done for hire, we are not bound by the “clearly erroneous” standard. Donaldson Publishing Co. v. Bregman, Vocco & Conn, Inc., 375 F.2d 639, 641 (2d Cir. 1967), cert. denied, 389 U.S. 1036, 88 S.Ct. 768, 19 L.Ed.2d 823 (1968).

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