Winnie the Pooh 2

In an earlier posting, I discussed a case of first impression involving grants made by Winnie the Pooh author Alan Alexander Milne, a re-grant made after his death by his son Christopher Robin, and an attempted termination by grand daughter Clare under the CTEA extended 20 year period. The district court had ruled that the re-grant was not a prohibited "agreement to the contrary," and on December 8th, the Ninth Circuit affirmed.

I refer readers back to the earlier posting for the details of the dispute, and simply note that the dispute at bottom turns on whether parties who have entered into a contract transferring rights can choose to enter into a new contract, a purpose of which is to preclude termination. In Milne, this new contract occurred during the period when termination could have been effectuated, so it is hard to say that the heirs (or estate) was being strong-armed: if they didn't like the new contract being offered they could have terminated then.

The Ninth Circuit was quite dismissive of Clare's arguments, including that the second agreement was an agreement to the contrary, and of the "proverbial parade of horrors" trotted out by Milne's grandaughter, whose own father had signed the second agreement and who benefitted under it. The court was even more dismissive of Mel Nimmer's "moment of freedom" argument, which asserts that there has to be a moment under which no contract exists:

"Clare's sole support for her position is found in a treatise authored by the late-Professor Melville Nimmer. In his treatise, Professor Nimmer expressed his assumption that this subsection - which on its face applies only to the statutory termination of a prior copyright grant - is intended to benefit authors and should therefore be extended to prohibit a simultaneous contractual termination and re-grant of copyright rights. ... Clare's counsel, however, conceded at oral argument that no source of primary authority has endorsed this assumption. We too decline to do so."

The court delicately didn't mention that Mel had been retained earlier by the other side and had given them an opinion that the transaction was not an agreement to the contrary, nor that Clare's counsel was David Nimmer. Writing treatises can be inconvenient.