COPYRIGHT TERMINATION

STATUTORY OVERVIEW AND MECHANICS

Copyright Duration

Renewal right is assignable How to Secure Value to Authors Problem: Renewal right is assignable Fred Fisher Music Co. v. M. Witmark & Sons (U.S. 1943) Solution: New termination right

Termination Basics Grants are subject to termination Inalienable: “Notwithstanding any agreement to the contrary” Protects authors and statutory successors Pre-1978 grants: § 304 Later grants: § 203 Derivative works

Termination tsunami?

Do the math 1978 + 35 2013

Section 203 citations 2001-2016

Timing and Mechanics Pre-1978 Grants Example 1998 Act Termination window 5 years starting 56 years from date copyright secured Example Copyright: May 1, 1960 Window: May 1, 2016 - 2021 1998 Act New window added

Timing and Mechanics Grants in or after 1978 35 years from date of execution of grant 5-year window Extra time for grants of publication rights 35 years from publication 40 years from execution of the grant

Timing and Mechanics Notice 2-10 years before termination Signature requirement State effective date Copy recorded in Copyright Office before effective date

Which Grants Are Subject to Termination? Pre-1978 grants By author, spouse, children, executor, next of kin Other than by will Not work made for hire

Which Grants Are Subject to Termination? Pre-1978 grants By author, spouse, children, executor, next of kin Other than by will Not work made for hire Later Grants By author

Who May Terminate Author grants Pre-1978 non-author grants Statutory successors with > ½ of termination interest Pre-1978 non-author grants Person who executed Joint works/grants

AGREEMENTS TO THE CONTRARY

Marvel Characters v. Simon (2d Cir. 2002) 1969: Settlement agreement said works were created for hire. 1999: Simon files termination notices. Held:  Works were not created for hire. Held: Termination effective despite settlement.

Novation When is an agreement not to the contrary? Lassie? Pooh? Steinbeck? Santa Clause Is Coming to Town? Gospel music?

No express revocation. What result? Baldwin v. Feist (2d Cir. 2015) Grantor hereby sells, assigns, grants, transfers and sets over to Grantee ... [1] all rights and interests whatsoever now or hereafter known or existing, heretofore or at any time or times hereafter acquired or possessed by Grantor in and to [the Song] ... under any and all renewals and extensions of all copyrights therein and [2] all United States reversionary and termination interests in copyright now in existence or expectant, including all rights reverted, reverting or to revert to Grantor ... by reason of the termination of any transfers or licenses covering any extended renewal term of copyright pursuant to Section 304 of the Copyright Act of 1976, together with all renewals and extensions thereof.

No express revocation. What result? Brumley v. Albert E. Brumley & Sons (6th Cir. 2016) BILL OF SALE AND ASSIGNMENT. in consideration of One Dollar ... and other good and valuable considerations, Goldie “assigned and transferred ... all the right, title and interest ... in ... all rights to obtain renewals or copyrights in the future upon Works written or composed by ... Albert E. Brumley” to Brumley & Sons.

Which choice of law rules? State or federal? Current controversies: Choice of law Which choice of law rules? State or federal? Contract, tort or property?

CONCLUSION