predeceased the author. Plaintiffs contend that where an author
had no spouse or children ever living, like Strayhorn, the
rights pass to the next of kin.
Plaintiffs' reading contradicts Supreme Court precedent
established in Miller Music and echoed in Stewart as well as
legislative history regarding the purpose of the statute. In
Miller Music, the Court clarified that the executor may assume
the rights where the author never had a spouse or children by
specifying that the executor claims "absent a widow [or
widower] or child." Miller Music, 362 U.S. at 375, 80 S.Ct. 792
(emphasis added). In Stewart, the Court again stated that the
executor may claim "absent" a spouse or child. See Stewart, 495
U.S. at 208, 110 S.Ct. 1750. Common sense and policy
considerations also require the rejection of Plaintiffs'
position: The renewal and termination rights exist primarily to
benefit the author and his or her family; there is no more — and
no less — reason for the executor to assume the rights where the
spouse and children are dead than where they have never lived.
The interpretation of this passage that renders it consistent
with the remainder of the statute and with congressional intent
is that, where the author has a surviving spouse and/or children,
those parties have priority in inheritance of the rights. Where
the author lacks immediate family, however, the rights pass to
the executor as a fiduciary for the next of kin or, in the
absence of a will and executor, to the next of kin themselves.
Plaintiffs also argue that Strayhorn's next of kin, the
Siblings, inherited the rights in the Compositions because
Strayhorn died without a valid will. They rely on the phrase
within § 304(a)(1)(C) specifying that "in the absence of a will"
the next of kin inherit the rights. Plaintiffs admit that
Strayhorn had a will and that the will was admitted to probate,
but they assert that because the will made an invalid disposition
of the Compositions, rights in them passed into intestacy.
Equating intestacy with "the absence of a will," Plaintiffs
assert that the next of kin inherited title to the Compositions
and to the renewal and termination rights.
Precedent instructs that where the author's will fails to
effectively dispose of the copyrights, the author is not
considered to have died "in the absence of a will."*fn17 See
Miller Music, 362 U.S. at 374, 80 S.Ct. 792. The Supreme Court
held in Miller Music that where an author's will contained no
specific bequest concerning renewal rights, the rights accrued to
the executor. See id. Following Miller Music, this Court held
in Capano Music that the interests in copyrights vest in the
executor of the author's will but did not hold that the will must
cover the copyright interests. See Capano Music, a Div. of
Britone, Inc. v. Myers Music, Inc., 605 F. Supp. 692, 695
(S.D.N.Y. 1985). According to Capano, the operative fact is
that an executor oversees the administration of the interests,
not that the will effectively specify the ways in which the
interests be administered.*fn18,*fn19 See id. This holding is
to Plaintiffs' argument that, because the Strayhorn will made an
ineffective bequest of the rights to the Compositions, Strayhorn
died "in the absence of a will" for statutory purposes.
2. Morris Assumed the Rights as a Fiduciary
Defendants seek a declaration that Morris personally assumed
the rights to the Compositions. This is also incorrect. As
Executor, Morris assumed the rights in a fiduciary capacity for
the next of kin. See Capano Music, 605 F. Supp. at 696 ("An
executor or administrator c.t.a. claims a renewal right not for
his own personal benefit but as fiduciary for the benefit of the
author's legatees under the will."); see also 3 Nimmer §
9.04[B]. The next of kin may gain title from the executor only
through assignment from the executor or a decree of distribution.
See Yardley v. Houghton Mifflin Co., 25 F. Supp. 361 (S.D.N Y
1938), aff'd, 108 F.2d 28 (2d Cir. 1939); 3 Nimmer § 9.04[B].
3. Morris' Assumption of the Rights Invalidated Prior
Assignments of the Renewal Expectancies Executed by Others
Although it is well-settled that the executor assumes the
rights as a fiduciary and not personally, see supra Part
VI.A.2., whether the executor is free to assign the interests as
he or she chooses or must act to honor assignments made by the
ultimate beneficiaries prior to the author's death remains an
open issue. That issue is central to this dispute, since it
affects whether Morris is bound to act in accordance with the
Siblings' assignment of their rights and interests to Tempo.
Plaintiffs contend that if the Siblings did not assume the rights
directly, then Morris is at least bound to honor their
assignments under the 1962 Amended Agreement.
Precedent indicates that the executor may act unfettered by the
actions and desires of the beneficiaries. Miller Music, while
acknowledging that an executor usually takes cum onere and must
act to honor the commitments made by the testator or beneficiary,
nonetheless held that the executor is not bound to honor
commitments made prior to his or her assumption of the rights.
See Miller Music, 362 U.S. at 376-77, 80 S.Ct. 792. In
Miller, the Court set the rights and freedoms of the executor
equal to those of the widow or widower, or children. See
id.*fn20 Miller Music rejected an assertion of the kind made
by Plaintiffs that "[t]here is quite simply nothing different,
for copyright purposes than for any other purposes, about the
rights and duties of an executor." Pls. Mem. at 14.
Morris' ability to act without regard to the prior assignments
by the Siblings means that he is not bound to honor the Siblings'
assignments of their renewal interests to Tempo under the 1962
Amended Agreement. However, this does not mean that Tempo and
Music Sales, as successor to Tempo's interests, do not hold the
rights to the Compositions: Morris made a binding assignment of
the renewal rights to Tempo in the 1969 Ellington Agreement.
Thus, whether Morris acted on his own initiative or pursuant to
the Siblings' assignments under the 1962 Amended Agreement, the
assignments of the renewal rights to Tempo are binding.
B. The Grants are Terminable by Morris
1. Morris was not Discharged as Executor
In order to determine whether Morris has or could terminate
Tempo's and Music Sales' rights to the Compositions, it is first
necessary to decide whether
Morris is still Executor or has been discharged. Where the
executor has served and is discharged, then s/he is no longer the
proper party to claim the renewal. See 3 Nimmer § 9.04[B], at
964.1. After the executor is discharged, title to the rights and
the ability to assign or terminate them devolves to the next of
kin.*fn21 See id. If Morris' 1976 discharge were valid and
complete, then the Siblings would have title to the rights
together with the rights to renew and to terminate the
Two documents bear on Morris's status as Executor. The first,
submitted by Plaintiffs, is entitled "Proceeding for Decree
Releasing and Discharging Gregory A. Morris, as Executor of the
Estate of William Strayhorn" ("Discharge Decree"). See 11/12/76
Discharge Decree, Exh. H to Pls. Notice of Motion. It states
Morris is "discharged and released from all further liabilities
to the persons interested in the Estate of William Strayhorn" and
that it is "Ordered . . . [that Morris] is hereby released and
discharged from all further liability as such Executor, to all of
the persons who have executed acknowledged instruments approving
said account. . . ." See id. The second document, presented by
Defendants, is a letter from Surrogate's Court stating that
Morris's letters testamentary have never been revoked. See
9/11/98 Certificate of Letters Testamentary, Surrogate's Court of
New York, Exh. I to Morris Aff. A release and discharge in
connection with an accounting does not extinguish the power of an
executor; that Morris holds letters testamentary is conclusive
evidence of his authority. See Capozzola v. Oxman, 216 A.D.2d 509,
628 N.Y.S.2d 777, 778 (2d Dep't 1995) (holding that the
passage of 42 years and the release and discharge pursuant to an
accounting did not compromise executrix's authority under valid
letters testamentary); see also Surrogate's Court Procedure Act
(SCPA) § 703(1) ("Letters granted by the Court are conclusive
evidence of the authority of the persons to whom they are
granted.") Thus, Morris is the current and valid Executor and, as
such, is able to exercise the termination right.
2. The Grants are Terminable