On Thursday, March 23rd I presented a Lunch & Learn at the University of New Hampshire School of Law’s Franklin Pierce Center for Intellectual Property.
I covered 203 copyright transfer termination rights mechanics, the post-2013 response of copyright creators and copyright-industries when the first termination “window” opened for post-1977 transfers, and stakeholder and commentator forecasts about whether the anticipated termination tidal wave of destruction is more academic than real.
Copyright transfer termination permits a copyright creator to reclaim control of his or her copyright several decades after transferring the right. This applies to all copyright transfers no matter what a contract may say about a perpetual transfer. Creators cannot waive this right. But they can forfeit it if they are not careful.
In fact, some creators have already forfeited their rights if they transferred copyright in 1978 and failed to serve notice of termination by 2016.
I offered some preliminary conclusions on the future of copyright-dependent industries in light of the 203 termination right.
Watch, listen and learn!
My latest article, Statutory Heirs Apparent: Reclaiming Copyright in the Age of Author-Controlled, Author-Benefiting Transfers (119 W. Va. L. Rev 297 (2016)), explores the intersectionality of estate succession laws and copyright and the unintended conflict between a deceased author’s testamentary freedom and the right of the decedent’s statutory heirs to terminate the decedent author’s lifetime transfers.
A number of notable songwriters have successfully reclaimed control over their copyrights from recording companies: Bruce Springstein, Loretta Lynn, Tom Petty, and an original “Village People” member, Victor Willis, for that perennial Karaoke favorite “YMCA”. They all lived long enough to see the copyright termination window open for their respective rights.
However, some authors are not so fortunate.
Case in point: The Ninth Circuit recently heard Ray Charles Foundation v. Robinson, 795 F.3d 1109 (9th Cir. 2015). That case presents facts analogous to the problem the proposed amendment seeks to resolve; that is, when a statutory heir asserts a termination interest clearly contrary to the decedent author’s wishes.
In that case, Charles named his private charitable foundation as sole heir of his rights and recipient of his royalties during his life and thereafter. In fact, the Foundation is totally funded by the royalties and is prohibited from receiving any other means of support. Separately, he negotiated with his children (all 12 of them) to waive any right to his estate in exchange for half million dollars into an irrevocable trust for each. He died before the termination window opened. The perfect storm. Continue reading “Article Alert: Statutory Heirs Apparent explores copyright termination right succession in the entertainment industry”
Statutory Heirs Apparent?: Reclaiming Copyright in the Age of Author-Controlled, Author-Benefiting Transfers, 119 W. Va. Law Rev. __ (2016).
This Article explores the intersection and disconnect between copyright law and estates law when a copyright owner dies before having the opportunity to exercise her termination right of an inter vivos copyright transfer. Specifically, I explore the impact of a statutory heir’s copyright transfer termination right on the original author’s testamentary freedom to the extent the decedent’s nonprobate disposition of assets is contrary to the “statutory will” disposition found in the Copyright Act.
Although copyright transfers made by will are not subject to a termination right, no such exception is made for an author’s lifetime transfers into vehicles controlled by the author. Examples of such transfers include those made into a performing artist’s loan-out company or a songwriter’s lifetime transfer of musical composition and sound recording copyrights into a self-settled irrevocable trust or charitable foundation.
The practical effect is that an heir (defined by the Act as a spouse, child or grandchild) who inherits the right to terminate any lifetime copyright transfer (including those just described), may exercise that right and successfully reclaim copyright ownership against the decedent’s intent to transfer copyright ownership at death to someone or some entity other than that statutorily prescribed heir.
I argue the termination right was intended to protect authors from being saddled for the full copyright term with bad deals made early in their careers when they had little, if any, bargaining power. The right was not intended to prevent authors from advantageous lifetime transfers into vehicles controlled by the author for prudent business, tax and estate planning reasons.
Many scholars, practitioners, and copyright transferees in the entertainment business surmised the likely impact of the first reclamation trigger date of January 1, 2013 under §203 of the 1976 Copyright Act on post-1977 transfer terminations. Some also expressed concern with the apparent distinction between, and treatment of, transfers by will and nonprobate transfers. This article focuses on what has actually transpired since that trigger date.
In addition, the article focuses on what might be done going forward to reconcile the probate and nonprobate disposition of copyrights in a way that best honors an author’s testamentary intent given what we now know from cases starting to make their way through the court system.