351 U.S.

570
76 S.Ct. 974
100 L.Ed. 1415

Marie DE SYLVA, Petitioner,

v.
Marie BALLENTINE, as Guardian of the Estate of Stephen
William Ballentine.
No. 529.
Argued April 25, 1956.
Decided June 11, 1956.

Mr.
Theodore Kiendl, New York City, for petitioner.
Mr. Max Fink, Los Angeles, Cal., for respondent.
Opinion of the Court by Mr. Justice HARLAN, announced by Mr. Justice
BURTON.

The present Copyright Act1 provides for a second 28-year copyright after the
expiration of the original 28-year term, if application for renewal is made
within one year before the expiration of the original term. This right to renew
the copyright appears in 24 of the Act:

'And provided further, That in the case of any other copyrighted 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 * * *.'

In this case, an author who secured original copyright on numerous musical

compositions died before the time to apply for renewals arose. He was survived
by his widow and one illegitimate child, who are both still living. The question
this case presents is whether that child is entitled to share in the copyrights
which come up for renewal during the widow's lifetime.

Respondent, the child's mother, brought this action on the child's behalf against
the widow, who is the petitioner here, seeking a declaratory judgment that the
child has an interest in the copyrights already renewed by the widow and those
that will become renewable during her lifetime, and for an accounting of profits
from such copyrights as have been already renewed. The District Court, holding
that the child was within the meaning of the term 'children' as used in the
statute but that the renewal rights belonged exclusively to the widow, gave
judgment for the widow. Agreeing with the District Court on the first point, the
Court of Appeals reversed, holding that on the author's death both widow and
child shared in the renewal copyrights. 226 F.2d 623. Because of the great
importance of these questions in the administration of the Copyright Act, we
granted certiorari, 350 U.S. 931, 76 S.Ct. 307.

The controversy centers around the words 'or the widow, widower, or children
of the author, if the author be not living.' Two questions are involved: class, or
in order of enumeration, and (2) class, or in order of enumeration, and (2) if
they take as a class, does 'children' include an illegitimate child. Strangely
enough, these questions have never before been decided, although the statutory
provisions involved have been part of the Act in their present form since 1870.

* The widow first contends that, after the death of the author, she alone is
entitled to renew copyrights during her lifetime, exclusive of any interest in
'children' of the author. That is, she interprets the clause as providing for the
passing of the renewal rights, on the death of the author, first to the widow, and
then only after her death to the 'children' of the author. If the word 'or' which
follows 'widower' is to be read in its normal disjunctive sense, this is not an
unreasonable interpretation of the statute, which might then well be read to
mean that 'children' are to renew only if there is no 'widow' or 'widower.' The
statute is hardly unambiguous, however, and presents problems of
interpretation not solved by literal application of words as they are 'normally'
used. The statute must be read as a whole, and putting each word in its proper
context we are unable to say, as the widow contends we should, that the clear
purport of the clause in question is the same as if it read 'or the widow, or
widower, if the author be not living, or the children of the author, if the author,
and widow or widower, be not living.'

We start with the proposition that the word 'or' is often used as a careless

substitute for the word 'and'; that is, it is often used in phrases where 'and'
would express the thought with greater clarity. That trouble with the word has
been with us for a long time: see, e.g., United States v. Fisk, 3 Wall. 445, 18
L.Ed. 243. In this instance, we need look no further than the very next clause in
this same section of the Copyright Act for an example of this careless usage: '*
* * or if such author, widow, widower or children be not living, then the
author's executors * * *.' If the italicized 'or' in that clause is read disjunctively,
then the author's executors would be entitled to renew the copyright if any one
of the persons named 'be not living.' It is clear, however, that the executors do
not succeed to the renewal interest unless all of the named persons are dead,
since from the preceding clause it is at least made explicit that the 'widow,
widower, or children of the author' all come before the executors, after the
author's death. The clause would be more accurate, therefore, were it to read
'author, widow or widower, and children.' It is argued with some force, then,
that if in the secceeding clause the 'or' is to be read as meaning 'and' in the same
word grouping as is involved in the clause in question, it should be read that
way in this clause as well. If this is done, it is then an easy step to read 'widow'
and 'children' as succeeding to the renewal interest as a class, as the Court of
Appeals held they did.

This Court has already traced the development of the renewal term in the
several copyright statutes enacted in this country. See Fred Fisher Music Co. v.
M. Witmark & Sons, 318 U.S. 643, 63 S.Ct. 773, 87 L.Ed. 1055, where it was
held that the author, during his lifetime, could make a binding assignment of
the expectancy in his future rights of renewal. The first federal statute, the Act
of May 31, 1790, 1 Stat. 124, did not allow renewal by anyone except the
author. In 1831, however, a new Act was passed, which for the first time gave
to the author's family the right to renew after his death. Act of February 3,
1831, 4 Stat. 436. Section 2 of that Act provided:

'That if, at the expiration of the aforesaid term of years, such author * * * be
still living, and a citizen * * * of the United States, or resident therein, or being
dead, shall have left a widow, or child, or children, either or all then living, the
same exclusive right shall be continued to such author * * *, or, if dead, then to
such widow and child, or children, for the further term of fourteen years * * *.'
(Italics supplied.)

10

It is significant that this statute, which instituted the present scheme of allowing
a copyright to be renewed after the author's death, provided for the renewal
interest in the 'widow and child, or children,' rather than in the widow or
children separately. Petitioner concedes that under this statute the widow and
children took as a class. This statute marked a major development in this phase

of copyright legislation and created a system which, in its basic form, has been
continued even to the present statute.
11

Section 88 of the Act of July 8, 1870, 16 Stat. 212, in consolidating the

language of 2 of the 1831 Act, made one important change in the language of
the renewal section: the right of renewal was given to the author's widow or
children, rather than to the widow and children. The section read as follows:

12

'That the author, * * * if he be still living and a citizen of the United States or
resident therein, or his widow or children, if he be dead, shall have the same
exclusive right continued for the further term of fourteen years * * *.' (Italics
supplied.)

13

This section became 4954 of the Revised Statutes, and was amended in 1891,
26 Stat. 1107, by deleting the requirement that the author be a citizen or
resident of the United States. The section was otherwise left intact. The present
renewal provision appeared first as 23 of the Copyright Act of March 4, 1909,
35 Stat. 1080, and was continued without change in 17 U.S.C. 24, 17
U.S.C.A. 24.

14

Knowing, as we do, that 'or' can be ambiguous when used in such a context as
this, it is difficult to say that the change made in the 1870 Copyright Act had
the effect of changing, as petitioner contends it did, the children's interest from
an interest shared with the widow to one which became effective only after her
death. There is no legislative history, either when the 1870 Act was passed or in
the subsequent sessions of Congress, to indicate that Congress in fact intended
to change in this respect the existing scheme of distribution of the renewal
rights. Rather, what scant material there is indicates that no substantial changes
in the Act were intended.2 It would not seem unlikely that the framers of the
1870 statute, interested in compressing the somewhat cumbersome phrasing of
the prior Copyright Act, simply deleted the words 'and child' with the thought
that the remaining phrase 'or children' expressed precisely the same result,
leaving unaffected the rights of the author's children which had been the same
for almost forty years.

15

We then come to the 1909 Copyright Act. By 23 of that Act, now 17 U.S.C.
24, 17 U.S.C.A. 24, there were added to those entitled to renewal rights after
the author's deaththe widow or childrenthe author's executors, or, in the
absence of a will, his next of kin. Each of these named classes is separated in
the statute by a condition precedent to the passing of the renewal rights,
namely, that the persons named in the preceding class be deceased. As already

noted, it is at least clear that, if the author and his widow have both died,
survived by a child, that child is entitled to renew copyrights maturing during
his lifetime. But if this interest were to take effect only after the death of the
widow, it might be expected that the drafters of the Act would have separated
'widow or widower' from 'children' with the same condition precedent used in
defining the succession of the other classes to the renewal rights, since it would
in effect be placing the children in a class lower than that occupied by the
widow or widower. Granting that the absence of this structure might simply
have been due to carelessness in adding the new class to the prior renewal
section, we think it may nevertheless be taken as some indication that the
widow and children are to take the right to renew at the same time.
16

The Solicitor General has filed a helpful brief on behalf of the Register of
Copyrights, as amicus curiae, in which the administrative practice of the
Copyright Office is discussed. It appears that the Regulations issued under the
1909 Act, in force until 1948 (when new Regulations, not touching on this
point, were issued), allowed the children of the author to apply for copyright
renewals after the author's death along with the widow or widower that is, the
children were not treated as being entitled to renewal only after the death of the
widow or widower.3 The practice of the Copyright Office has been to register
renewal claims by children during the lifetime of an author's widow or
widower, although this practice, it is frankly admitted, is more the result of a
decision that there is substantial doubt over the question, rather than the result
of a confident interpretation of the statute as treating widows, widowers, and
children as members of one class. Although we would ordinarily give weight to
the interpretation of an ambiguous statute by the agency charged with its
administration, cf. Mazer v. Stein, 347 U.S. 201, 211213, 74 S.Ct. 460, 467
468, 98 L.Ed. 630, we think the Copyright Office's explanation of its
practice deprives the practice of any force as an interpretation of the statute,
and we therefore do not rely on it in this instance.

17

Petitioner and several of the associations which have filed amicus briefs point
out that the 'universal' interpretation of 24 has been that children are entitled
to renewal only after the death of the widow or widower. In light of the
Copyright Office practice alone, that is obviously an overstatement.
Nevertheless, had there been a long-standing consistent attitude by the
specialists in this field of law, and a more adequate basis for it than exists here,
we might hesitate to overturn what had come to be a generally accepted view of
a statute having such important consequences. But we cannot escape the
conclusion that, in this instance, any such reliance on that interpretation of the
Act was misplaced: the statute is far from clear, the Copyright Office has
recognized its ambiguity, renewal applications have for many years been filed

by children before the death of the widow or widower, and more than one
qualified commentator has either expressed doubt on the question or has
concluded that the widow or widower and children take as a class.4
18

Nor is it possible for us to say, as petitioner suggests, that the only way to
satisfy the congressional purpose is to hold that, during her lifetime, the widow
has exclusive renewal rights. Petitioner argues that the statute, contemplating
the normal situation of a widow taking care of her children, gives the widow
exclusive control of the copyright on the author's death, since she is presumably
more capable of dealing with it and will more likely be in need of the copyright
income. This branch of the argument, however, becomes very much diluted
when it is observed that, if the deceased author be a woman, the statute
disposes of the renewal rights in the same manner as if the author were a male.
It is further argued that since the value of the copyright depends to an
appreciable extent on the ability to convey clear publication rights, the statute
should not be construed to diminish the value of the copyright by scattering its
ownership, which might make it difficult to transfer clear title. One difficulty
with this argument is that it ignores the 1831 statute, which, as petitioner
recognizes, divided the ownership of the renewal rights between the surviving
spouse of the author and his children. What we are asked to do is to avoid, on
policy grounds, an interpretation of the successor statute which embodies the
policy of the earlier Act, a policy which Congress saw fit to effectuate at least
until 1870, and which, if changed then, was changed without any discernible
display of dissatisfaction with that policy. This is not the type of case where we
can use, as a guide to statutory interpretation, an unwillingness to attribute to
Congress results which on their face are harsh, or present constitutional
difficulties, or which are so extraordinary that clear, unambiguous wording is
required. Cf. United States v. Minker, 350 U.S. 179, 76 S.Ct. 281. In view of
this explicit prior legislation, this Court should not transfuse the successor
statute with a gloss of its own choosing, especially where the choice between
the alternative policies is as close as this one.5

19

While the matter is far from clear, we think, on balance, the more likely
meaning of the statute to be that adopted by the Court of Appeals, and we hold
that, on the death of the author, the widow and children of the author succeed
to the right of renewal as a class, and are each entitled to share in the renewal
term of the copyright.

II
20

We come, then, to the question of whether an illegitimate child is included

within the term 'children' as used in 24. The scope of a federal right is, of

course, a federal question, but that does not mean that its content is not to be
determined by state, rather than federal law. Cf. Reconstruction Finance Corp.
v. Beaver County, 328 U.S. 204, 66 S.Ct. 992, 90 L.Ed. 1172; Board of County
Commissioners v. United States, 308 U.S. 343, 351352, 60 S.Ct. 285, 288
289, 84 L.Ed. 313. This is especially true where a statute deals with a familial
relationship; there is no federal law of domestic relations, which is primarily a
matter of state concern.
21

If we look at the other persons who, under this section of the Copyright Act,
are entitled to renew the copyright after the author's death, it is apparent that
this is the general scheme of the statute. To decide who is the widow or
widower of a deceased author, or who are his executors or next of kin, requires
a reference to the law of the State which created those legal relationships. The
word 'children,' although it to some extent describes a purely physical
relationship, also describes a legal status not unlike the others. To determine
whether a child has been legally adopted, for example, requires a reference to
state law. We think it proper, therefore, to draw on the ready-made body of
state law to define the word 'children' in 24. This does not mean that a State
would be entitled to use the word 'children' in a way entirely strange to those
familiar with its ordinary usage, but at least to the extent that there are
permissible variations in the ordinary concept of 'children' we deen state law
controlling. Cf. Seaboard Air Line Railway v. Kenney, 240 U.S. 489, 36 S.Ct.
458, 60 L.Ed. 762. 6

22

This raises two questions: first, to what State do we look, and second, given a
particular State, what part of that State's law defines the relationship. The
answer to the first question, in this case, is not difficult, since it appears from
the record that the only State concerned is California, and both parties have
argued the case on that assumption. The second question, however, is less
clear. An illegitimate child who is acknowledged by his father, by a writing
signed in the presence of a witness, is entitled under 255 of the California
Probate Code7 to inherit his father's estate as well as his mother's. The District
Court found that the child here was within the terms of that section. Under
California law the child is not legitimate for all purposes, however; compliance
with 230 of the Civil Code8 is necessary for full legitimation, and there are no
allegations in the complaint sufficient to bring the child within the section.
Hence, we may take it that the child is not 'adopted' in the sense that he is to be
regarded as a legitimate child of the author.

23

Considering the purposes of 24 of the Copyright Act, we think it sufficient

that the status of the child is that described by 255 of the California Probate
Code. The evident purpose of 24 is to provide for the family of the author

after his death. Since the author cannot assign his family's renewal rights, 24
takes the form of a compulsory bequest of the copyright to the designated
persons. This is really a question of the descent of property, and we think the
controlling question under state law should be whether the child would be an
heir of the author. It is clear that under 255 the child is, at least to that extent,
included within the term 'children.'
24

Finally, there remains the question of what are the respective rights of the
widow and child in the copyright renewals, once it is accepted that they both
succeed to the renewals as members of the same class. Since the parties have
not argued this point, and neither court below has passed on it, we think it
should not be decided at this time.

25

For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

26

Affirmed.

27

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK joins, concurring.

28

The meaning of the word 'children' as used in 24 of the Copyright Act is a

federal question. Congress could of course give the word the meaning it has
under the laws of the several States. See Hutchinson Investment Co. v.
Caldwell, 152 U.S. 65, 6869, 14 S.Ct. 504, 505; Poff v. Pennsylvania R. Co.,
327 U.S. 399, 401, 66 S.Ct. 603, 90 L.Ed. 749. But I would think the statutory
policy of protecting dependents would be better served by uniformity, rather
than by the diversity which would flow from incorporating into the Act the
laws of forty-eight States. Cf. Clearfield Trust Co. v. United States, 318 U.S.
363, 367, 63 S.Ct. 573, 575, 87 L.Ed. 838; National Metropolitan Bank v.
United States, 323 U.S. 454, 456, 65 S.Ct. 354, 355, 89 L.Ed. 383; Heiser v.
Woodruff, 327 U.S. 726, 732, 66 S.Ct. 853, 855, 90 L.Ed. 970; United States v.
Standard Oil Co., 332 U.S. 301, 307, 67 S.Ct. 1604, 91 L.Ed. 2067.

29

An illegitimate child was given the benefits of the Federal Death Act, 46
U.S.C.A. 761 et seq., by Middleton v. Luckenbach S.S. Co., 70 F.2d 326, 329
330, where the Court of Appeals for the Second Circuit said:

30

'There is no right of inheritance involved here. It is a statute that confers

recovery upon dependents, not for the benefit of an estate, but for those who by
our standards are legally or morally entitled to support. Humane considerations
and the realization that children are such no matter what their origin alone
might compel us to the construction that, under present day conditions, our

social attitude warrants a construction different from that of the early English
view. The purpose and object of the statute is to continue the support of
dependents after a casualty. To hold that these children or the parents do not
come within the terms of the act would be to defeat the purposes of the act. The
benefit conferred beyond being for such beneficiaries is for society's welfare in
making provision for the support of those who might otherwise become
dependent. The rule that a bastard is nullius filius applies only in cases of
inheritance. Even in that situation was have made very considerable advances
toward giving illegitimates the right of capacity to inherit by admitting them to
possess inheritable blood.'
31

I would take the same approach here and, regardless of state law, hold that
illegitimate children were 'children' within the meaning of 24 of the
Copyright Act, whether or not state law would allow them dependency benefits.

32

With this exception, I join in the opinion of the Court.

61 Stat. 652, 17 U.S.C. 1 et seq., 17

See Cong.Globe, 41st Cong., 2d Sess. 2680, 2854 (1870).

37 CFR, 1938, 201.24(a): 'Application for the renewal of a subsisting

copyright may be filed within 1 year prior to the expiration of the existing term
by:
'(1) The author of the work if still living;
'(2) The widow, widower, or children of the author if the author is not living;
'(3) The author's executor, if such author, widow, widower, or children be not
living;
'(4) If the author, widow, widower, and children are all dead, and the author left
no will, then the next of kin.'
See 48, Copyright Office Bulletin No. 15 (1913); 46, Copyright Office
Bulletin No. 15 (1910).

See, e.g., Chafee, Reflections on the Law of Copyright, 45 Col.L.Rev. 503,

527; Kupferman, Renewal of CopyrightSection 23 of the Copyright Act of
1909, 44 Col.L.Rev. 712, 717; Tannenbaum, Practical Problems in Copyright, 7
Copyright Problems Analyzed (CCH) 7, 12 (1952). But see, e.g., Nicholson, A

Manual of Copyright Practice, 195, 196; De Wolf, An Outline of Copyright

Law, 66.
5

Petitioner also argues that since the statute does not specifically provide for an
allocation, as between the widow or widower and children, of their respective
interests in the renewal copyrights, it should not be read as providing for their
succeeding to the renewal rights as a class. But neither did the 1831 Act provide
for a division of the copyright between widow and child or children; nor does
the present Act allocate the renewal rights as between those included in the
term 'next of kin.' The absence of such a provision, therefore, is not persuasive
as an aid to interpretation of the statute.

Petitioner relies on McCool v. Smith, 1 Black 459, 17 L.Ed. 218 for the
proposition that a general statutory reference to 'children' means only legitimate
children. The actual decision in that case, decided in 1862, concerned only the
interpretation of a state statute, and we do not consider it controlling here. Cf.
Hutchinson Investment Co. v. Caldwell, 152 U.S. 65, 70, 14 S.Ct. 504, 505, 38
L.Ed. 356.

'Every illegitimate child is an heir of his mother, and also of the person who, in
writing, signed in the presence of a competent witness, acknowledges himself
to be the father, and inherits his or her estate, in whole or in part, as the case
may be, in the same manner as if he had been born in lawful wedlock; but he
does not represent his father by inheriting any part of the estate of the father's
kindred, either lineal or collateral, unless, before his death, his parents shall
have intermarried, and his father, after such marriage, acknowledges him as his
child, or adopts him into his family; in which case such child is deemed
legitimate for all purposes of succession. An illegitimate child may represent
his mother and may inherit any part of the estate of the mother's kindred, either
lineal or collateral.'

'The father of an illegitimate child, by publicly acknowledging it as his own,

receiving it as such, with the consent of his wife, if he is married, into his
family, and otherwise treating it as if it were a legitimate child, thereby adopts
it as such; and such child is thereupon deemed for all purposes legitimate from
the time of its birth. The foregoing provisions of this Chapter do not apply to
such an adoption.'