entitled to terminate the grant.[1] Rather than adopting a simple rule allowing authors to decide who should be able to recapture their copyrights, Congress established a statutory succession scheme enumerating the parties who become entitled to terminate a grant of copyright rights following the death of the original author.[2] The parties who are entitled to terminate a deceased author’s transfer of rights are:
- In the case of an author survived by a spouse, but not by any children or grandchildren, the author’s surviving spouse holds the power to terminate the transfer;
- In the case of an author survived by at least one child or grandchild, but not by a spouse, the author’s children share the termination rights equally, with the author’s grandchildren eligible to vote the shares of their deceased parents on a per stirpes basis;
- In the case of an author survived both by a spouse and by at least one child or grandchild, the spouse holds fifty percent of the termination rights and the author’s children collectively hold the other fifty percent divided equally among them, with the same per stirpes rule for grandchildren; and
- In the case of an author survived neither by a spouse nor by any children or grandchildren, the author’s executor, administrator, personal representative, or trustee enjoys the power to terminate grants of the deceased author’s copyright rights.[3]
Termination causes the granted rights to revert to the persons listed in the statutory succession scheme.[4]
Parties cannot opt out of the termination regime. The statute specifically
provides that “[t]ermination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.”[5] Thus, every license or transfer of any
- ↑ 17 U.S.C. § 203(a)(2).
- ↑ This policy choice has been criticized on the grounds that it interferes with an author’s freedom to dispose of her estate in accordance with her testamentary wishes. See Lee-ford Tritt, Liberating Estates Law from the Constraints of Copyright, 38 Rutgers L.J. 109, 167–82 (2006). Where the author is survived by a spouse, child, or grandchild, the rights to terminate transfers made during the author’s life and to recapture the transferred rights in the underlying work pass to the author’s statutory successors irrespective of the terms of the author’s will. See, e.g., Larry Spier, Inc. v. Bourne Co., 953 F.2d 774, 777–78 (2d Cir. 1992).
- ↑ See § 203(a)(2)(A)–(D). The listing of statutory successors seems to enshrine, as a matter of federal copyright law, a certain orthodoxy regarding “nuclear family” relationships that predominated during the 1960s and 1970s when the statute was drafted. See Tritt, supra note 252, at 181–82 (noting that blended and nontraditional families, as well as families headed by same-sex or unmarried couples, are nowhere comprehended within the statutory succession scheme established by the termination rules). The statute’s disregard of nontraditional family structures was even stronger before 1998, when Congress (without explanation) added the paragraph permitting authors’ executors, administrators, personal representatives, or trustees to succeed to the author’s termination rights. See 3 Patry, supra note 157, § 7:61.
- ↑ See 17 U.S.C. § 203(b).
- ↑ Id. § 203(a)(5) (emphasis added); see also H.R. Rep. No. 94-1476, at 125 (1976) (“although affirmative action is needed to effect a termination, the right to take this action cannot be waived in advance or contracted away.”). This provision represented a reaction to court
