lieved, could acquire rights for a comparative pittance and then grow wealthy off the author’s work.[1] By allowing authors unilaterally to terminate unremunerative transfers, and by forbidding the parties to contract around the statute, Congress effectively gave authors and their heirs a second bite at the apple, thereby permitting them to recapture their rights and negotiate for more favorable licensing terms after time had revealed the true value of the author’s work.[2]
The Superman case illustrates the termination provisions in operation. Siegel and Shuster parted in 1938 with rights that proved to be worth vastly more than the $130 they received.[3] Jerome Siegel died on January 28, 1996.[4] On April 3, 1997, Siegel’s widow and daughter served written termination notices under § 304(c), with a stated effective termination date of April 16, 1999, seeking to terminate the 1938 assignments of rights to the Superman character.[5] The court noted the complexity of § 304(c)’s termination provisions, which it portrayed, with some justification, as a barrier to the parties’ exercise of their rights.[6] Nevertheless, it concluded that Siegel’s heirs had satisfied the requirements of § 304(c) and rejected a number of defenses raised by Siegel’s assignees.[7] “After seventy years,” the court concluded, “Jerome Siegel’s heirs regain what he granted so long ago—the copyright in the Superman material that was published in Action Comics, Vol. 1.”[8]
The Superman case confirms that the statute’s termination provisions may be employed in a fashion that furthers Congress’s intent to redress unremunerative transfers and remedy unequal bargaining power. That circumstance, however, does not limit the application of the statute. To the contrary, both the text of the statute and recent case law tend to suggest that the termination provisions apply even to an author’s voluntary release of a copyrighted
work under an open-content license, which clearly does not involve
- ↑ See H.R. Rep. No. 94-1476, at 124 (“A provision of this sort is needed because of the unequal bargaining position of authors, resulting in part from the impossibility of determining a work’s value until it has been exploited.”).
- ↑ This policy choice has been criticized on the grounds that it enables an author’s heirs—who have themselves created nothing—to extract continuing rents based on the author’s creation, to the detriment of the public. See William F. Patry, The Failure of the American Copyright System: Protecting the Idle Rich, 72 Notre Dame L. Rev. 907, 932–33 (1997); cf. Deven R. Desai, Copyright’s Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright (Mar. 5, 2009), available at http://ssrn.com/abstract=1353746 (suggesting that rhetoric in copyright debate surrounding the need to provide for authors’ heirs has been strategically deployed to mask the real underlying battle between the interests of authors and publishers, and that the public’s status as the ultimate beneficiary of authors’ creativity has been unjustly overlooked).
- ↑ See supra notes 231–35 and accompanying text.
- ↑ Siegel v. Warner Bros. Entm’t Inc., 542 F. Supp. 2d 1098, 1113 (C.D. Cal. 2008).
- ↑ Id. at 1114. Shuster’s heirs did likewise, although their rights were not before the court that heard the case involving Siegel’s termination. See id. at 1114 n.3.
- ↑ See id. at 1117.
- ↑ See id. at 1117–39.
- ↑ Id. at 1145.
