Berkeley Program in Law and Economics
Pooh-Poohing Copyright Law’s “Inalienable” Termination Rights
- Author(s): Menell, Peter
- Nimmer, David
- et al.
From its earliest manifestations, copyright law has struggled to deal with the equitable and efficient division of value and control between creators and the enterprises that distribute their works. And for almost as long as copyright has existed, there has been concern about creators getting the short end of the stick in their dealings with distributors. Since 1909, Congress has sought to protect authors and their families by allowing them to grant their copyrights for exploitation and then, decades later, to recapture those same rights. After judicial interpretation of the 1909 Act frustrated this intent by upholding advance assignments of renewal terms, Congress spoke unambiguously in 1976: “Termination of the grant may be effected notwithstanding any agreement to the contrary . . . .” Yet recent decisions in the Ninth and Second Circuits have eviscerated that clear Congressional command by permitting a grantee to renegotiate the terms of the grant so as to frustrate recapture by the author’s family. After critically analyzing these decisions, this article provides a comprehensive framework for restoring the integrity and clarity of the termination of transfer provisions.