The opinion of the court was delivered by: Haight, District Judge:
MEMORANDUM OPINION AND ORDER
In this action under the Copyright Act between two music
publishers, plaintiff seeks a declaration that defendant's
rights in certain songs have been terminated and an
accounting. Defendant moves under Rule 56, Fed.R.Civ.P., for
summary judgment dismissing the complaint.
Plaintiff Larry Spier, Inc. ("Spier") and defendant Bourne
Co. ("Bourne") are music publishers.
The late Dave Dreyer was a composer of popular songs. During
the period 1925 through 1931, Dreyer, in collaboration with
such legendary figures as A1 Jolson and Billy Rose,
co-authored five songs: "Me and My Shadow", "Wabash Moon,"
"There's a Rainbow Round My Shoulder," "Back In Your Own
Backyard," and "Cecilia." Shortly after their composition,
Dreyer assigned his copyrights to the songs to Bourne's
predecessor in interest, Irving Berlin, Inc. Those assignments
the initial term of the copyrights. In 1951 Dreyer assigned
the renewal terms of the copyrights to Bourne.
On January 5, 1965 Dreyer executed his last will and
testament, adding a first codicil on March 8, 1965. Dreyer
died on March 2, 1967.
After making certain specific bequests, Dreyer's will
provided as follows:
THIRD: I anticipate that among the assets of my
estate will be copyrights, renewal copyrights and
extensions thereof, and publishing contracts with
respect to musical compositions written by me,
and the rights deriving from my membership, as a
writer, in the American Society of Authors,
Composers and Publishers (ASCAP), in accordance
with its rules. All of such property will
hereinafter be referred to collectively, for
convenience, as my "music assets".
The Fifth Article of Dreyer's will placed those "music
assets" into a testamentary trust. The will provided:
FIFTH: All of my assets other than those which
shall have been set apart as principal of Trust
"A", and after ANNA's death those music assets
which theretofore had constituted a part of Trust
"A", I give and bequeath to my Trustee to hold,
manage, invest and reinvest the same, and to
collect the income therefrom, upon the following
uses and purposes: . . .
Dreyer was survived by his widow Anna Dreyer, his son Lewis
Dreyer, and his daughter Marie Dreyer Rothblum. The will was
probated, the trust came into being, and trustees were
appointed. Under the will Anna Dreyer received a certain
portion of the net income from copyright and renewal rights,
with remaining income divided between Dreyer's son Lewis, his
daughter Marie Dreyer Rothblum, and Mynna Granat, his
mistress. Upon the death of Anna Dreyer, all the net income
from copyright and renewal rights was to be distributed
equally between Mynna Granat, Marie Dreyer Rothblum and Lewis
Dreyer. The will provided that the trust would survive at
least until the death of two of these named beneficiaries.
In 1972, prior to expiration of the initial and renewal
terms of the copyrights to the songs in question, Lewis Dreyer
died, leaving his wife Beth and two sons Steven D. Dreyer and
Dean Dreyer. In 1984 Anna Dreyer died intestate. In 1989 Dean
Dreyer died intestate.
In accordance with Dreyer's will, the American Society of
Composers, Authors and Publishers ("ASCAP") and the
Song-writers Guild are distributing royalties in respect of
Dreyer's compositions. The present schedule of distribution
is: one-third to Mynna Granat, one-third to Marie Dreyer
Rothblum, one-sixth to Steven D. Dreyer and one-sixth for the
benefit of Dean Dreyer's son.
In April 1981, Anna Dreyer, Marie Dreyer Rothblum, Steven D.
Dreyer, and Dean Dreyer executed and mailed to Bourne notices
of termination, purportedly pursuant to the Copyright Act,
17 U.S.C. § 304(c) and 37 C.F.R. § 201.10, seeking to terminate
Bourne's rights to the songs in question. In 1988 Steven D.
Dreyer and Dean Dreyer executed assignments of their rights to
the songs to Spier. It appears from plaintiff's amended
complaint that in May 1990, in apparent response to defendant's