copyright interest is inherently and unavoidably conditional: it is subject to future revocation by the author or the other persons named in the statute, notwithstanding the author’s stated desires or the provisions of the original grant.[1]
Another part of the statute, § 304(c), governs the termination of transfers made before January 1, 1978.[2] Many of the provisions mirror those of § 203: the same individuals (living authors or a list of statutory successors) hold termination rights, and the same provisions for written notice apply.[3] There is, once again, a five-year window during which termination may occur, but it comes into being at a different time, measured not from the date of the original transfer, but from the date copyright in the underlying work attached.[4] Again, the statute forbids parties to contract around the termination rules.[5]
The termination provisions were intended to compensate for unequal bargaining power as between authors and publishers who, Congress be-
- ↑ See Lemley, supra note 96, at 141–42; cf. Robert A. Kreiss, Abandoning Copyrights to Try to Cut Off Termination Rights, 58 Mo. L. Rev. 85, 86 (1993) (because of statutory termination provisions, “an author’s assignment of all his copyright rights is more like the conveyance of a fee simple subject to condition subsequent than the conveyance of a fee simple absolute”).
- ↑ See 17 U.S.C. § 304(c).
- ↑ See § 304(c)(1), (2), (4). The grants subject to termination are somewhat broader under § 304(c) insofar as they include grants made other than by the original author, although the distinction is unimportant for present purposes. See generally H.R. Rep. No. 94-1476, at 140–42 (summarizing key differences between termination provisions of §§ 203 and 304(c)).
- ↑ § 304(c)(3) (“Termination of the grant may be effected at any time during a period of five years beginning at the end of fifty-six years from the date copyright was originally secured, or beginning on January 1, 1978, whichever is later.”). By permitting termination of existing assignments fifty-six years after the vesting of the initial copyright, Congress meant to ensure that authors and their successors, rather than assignees, benefited from the 1976 Act’s extension of the second copyright term from twenty-eight to forty-seven years. See H.R. Rep. No. 94-1476, at 140 (“the extended term represents a completely new property right, and there are strong reasons for giving the author, who is the fundamental beneficiary of copyright under the Constitution, an opportunity to share in it”). Congress repeated this step in 1995, when it again extended the duration of existing copyrights by twenty years and gave authors a new termination opportunity. See 17 U.S.C. § 304(d); 3 Patry, supra note 157, § 7:62.
- ↑ § 304(c)(5).
decisions that had permitted contractual agreements between the parties to override Congress’s attempts to protect authors against unremunerative transfers by granting a new estate in the renewal term. See supra note 221; Melville B. Nimmer, Termination of Transfers Under the Copyright Act of 1976, 125 U. Pa. L. Rev. 947, 982–83 (1977).
The courts are presently divided on whether a new agreement between the same parties that supersedes an earlier transfer and makes a new transfer of the same rights is an “agreement to the contrary”—that is to say, whether the grantor retains the power to terminate the earlier grant notwithstanding the provisions of the later agreement. Compare Penguin Group (USA) v. Steinbeck, 537 F.3d 193, 202–04 (2d Cir. 2008) (upholding later agreement), with Classic Media, Inc. v. Mewborn, 532 F.3d 978, 982–86 (9th Cir. 2008) (invalidating later agreement). Although this disagreement may prove highly consequential as it affects the business relations of authors and publishers, it is unlikely to carry much significance in the context of open-content licensing. See generally Peter S. Menell & David Nimmer, Pooh-Poohing Copyright Law’s “Inalienable” Termination Rights (UC Berkeley Pub. Law, Research Paper No. 1525516, 2009), available at http://ssrn.com/abstract=1525516 (arguing that statutory provisions should be construed to discourage opportunistic attempts by licensees to frustrate authors’ termination rights).
