tag:blogger.com,1999:blog-12505562.post111828000960916919..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Do Termination of Transfers Matter?William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger13125tag:blogger.com,1999:blog-12505562.post-52847917098596767732007-03-05T17:38:00.000-05:002007-03-05T17:38:00.000-05:00Brian, I am unaware of any case that has addressed...Brian, I am unaware of any case that has addressed the issue of a conflict between the two sections. Raya Dreben noted the problem in an article, "Section 203 and a Call for a Hurried review of the 1976 Copyright Act: Dealing with the New Realities," (N.J. Copyright Doc'y 1977). The Pooh case dealt with whether an agreement that wiped out the termination rights was enforceable so I don't see the relevance.<BR/>Daniel, the figure on the number of terminations comes from Copyright office testimony.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-71920529937843088022007-03-05T16:55:00.000-05:002007-03-05T16:55:00.000-05:00In your blog, you state that "some works may thus ...In your blog, you state that "some works may thus have both 304 and 203 termination rights." When this does occur, which state of laws prevails? Can you provide further guidance with this dilemna? Does the "Winnie the Pooh" case shed any light on this situation? (Would the 1983 contract in the "Winnie the Pooh" case be subject to termination rights of section 203?) Any help on this matter would be appreciated.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-89743064860194795022007-01-17T15:59:00.000-05:002007-01-17T15:59:00.000-05:00Hi, I'm writing a note for the Columbia Journal of...Hi, I'm writing a note for the Columbia Journal of Law and the Arts on termination. I'm curious how you know or estimate the termination rate, so far, to be around 4%?<br /><br />Thanks,<br /><br />DanielDanielhttps://www.blogger.com/profile/12241634676077412464noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1118707228523993232005-06-13T20:00:00.000-04:002005-06-13T20:00:00.000-04:00In response to LKB in Houston re: Rano v. Sipa Pre...In response to LKB in Houston re: Rano v. Sipa Press...<BR/><BR/>I know that Nimmer thinks its bad law, but I can think of no way to reconcile 17 USC 203(b)(6) or 17 USC 304(c)(6)(F) [holding that any grant that is silent wrt termination will extend throughout the entire copyright term] with anything but the holding in Rano.<BR/><BR/>I think the contrary rulings from the other circuits have good intentions, but fixing this seems like a job for Congress, not the judiciary.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1118512671532628342005-06-11T13:57:00.000-04:002005-06-11T13:57:00.000-04:00Timothy, I was confusing you with Anonymous, sorry...Timothy, I was confusing you with Anonymous, sorry (although no slight intended toward Anonymous). I'll do t'shuva by a posting Monday on droit de suite and the law and economics of visual artists' resale royalties, which as I mentioned, raises I think similar issues.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1118495483945970182005-06-11T09:11:00.000-04:002005-06-11T09:11:00.000-04:00Professor, you seem to be mistaking the anonymous ...Professor, you seem to be mistaking the anonymous contributor's comment for one of mine. I'm not sure that I would ever state that publishers "create" market value. After all, the publishers have been whining since the late 17th century about how <I>incompetent</I> they are at their trade. Only one book in five succeeds, so they must have monopolies, and ever more monopolies, in order to be able to cash in on the few successes.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1118488424736496532005-06-11T07:13:00.000-04:002005-06-11T07:13:00.000-04:00The same sort of issue raised by Timothy in his la...The same sort of issue raised by Timothy in his last comment (that the publisher ends up creating the market value) are seen in the debates over droit de suite (resale royalty) for visual artists. The artists claim the right is necessary because the reproduction right is inadequate; art dealers and houses claim that they are the ones who take the risks and should not have to share the upside.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1118427350368832622005-06-10T14:15:00.000-04:002005-06-10T14:15:00.000-04:00Timothy--Unequal positions for contractual parties...Timothy--<BR/>Unequal positions for contractual parties is a fact of life.<BR/><BR/>If an author can break his word and take back his work, why shouldn't I be able to break my word and get my money back for my 13 year old car?<BR/><BR/>You seem to be going in a direction of making contracts unenforceable altogether. That seems like an amazingly bad idea to me, and probably to most people, which is why there are very few, very limited grounds on which you can escape a contract normally.<BR/><BR/>After all, we're not talking about unconscionable contracts here, or otherwise unenforceable ones. We're talking about good, valid contracts that authors only don't like years down the road.<BR/><BR/>And as for fairness, frankly, it's quite unfair to allow termination. For example, in the Superman case, it wasn't the creators who made the character into a valuable one. It was the publisher. Why should the author get to reap what he hasn't sown?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1118401427062334182005-06-10T07:03:00.000-04:002005-06-10T07:03:00.000-04:00If it is "paternalistic" to recognize that not all...If it is "paternalistic" to recognize that not all contracts are made between equal parties, and that the weaker party may need some legal devices-(termination of copyright; the doctrines of "adhesion" and "unconscionable contract"; fair-labor laws; and so on) to compensate for weakness, then this is the sort of "paternalism" that we probably need more of, or at least (human beings being what they are) better enforcement of..Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1118347625890340492005-06-09T16:07:00.000-04:002005-06-09T16:07:00.000-04:00Timothy--Automatic termination, desirable though i...Timothy--<BR/><I>Automatic termination, desirable though it is, would not completely short-circuit all such disputes.</I><BR/><BR/>I'd disagree with you. I think that termination is a pretty dumb idea, any way you look at it. It's very paternalistic to give authors an out of otherwise perfectly valid contracts. I think it'd be far better to abolish the practice. And while I'd like to see a return to multiple terms, I think it'd be better to allow rightsholders to assign (or retain) renewal rights.<BR/><BR/>Children might deserve two bites at the apple; don't go treating authors like children.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1118330697514284512005-06-09T11:24:00.000-04:002005-06-09T11:24:00.000-04:00A good friend of mine was involved in the Superman...A good friend of mine was involved in the Superman termination efforts. A significant problem for terminations involving famous characters is identifying all of the different grantees whose rights who are sought to be terminated. See 37 CFR 201.10(b)(i). In the case of Superman, for example, how many different grantees were there for television shows, books, clothes, posters, and other memorabilia? Tracking all these down is seeming impossible but if you don't how can you terminate?William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1118328588781216502005-06-09T10:49:00.000-04:002005-06-09T10:49:00.000-04:00As usual, Prof. Patry has flagged a number of inte...As usual, Prof. Patry has flagged a number of interesting issues.<BR/><BR/>Another facet of § 203 termination is the Ninth Circuit's ridiculous opinion in Rano v. Sipa Press, 987 F.2d 580 (9th Cir. 1993). This case held that where a license agreement does not contain any express duration terms or termination procedures, § 203 preempts state contract law (which typically makes such licenses terminable at will) and creates a minimum term of 35 years. As one commentator (Mark Radcliffe) has put it, this decision "takes a provision meant to protect the author and turns it into a straitjacket."<BR/><BR/>Fortunately, the other circuits have explicitly rejected Rano, and permit earlier termination if permitted by applicable state contract law. See, e.g., Walthal v. Rusk, 172 F.3d 481 (7th Cir. 1999); Korman v. HBC Florida, Inc., 182 F.2d 1281 (11th Cir. 1999). Indeed, as the Seventh Circuit colorfully observed, "If the Rano decision were a Broadway show, bad reviews would have forced it to close after opening night." 172 F.3d at 483. Nevertheless, it's still the law in the Ninth Circuit.<BR/><BR/>LKB in HoustonAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1118327104035527752005-06-09T10:25:00.000-04:002005-06-09T10:25:00.000-04:00I think we can reasonably assume that the low term...I think we can reasonably assume that the low termination-rate to some extent reflects the complexity of the termination process and the inequality in the economic position of the author's heir (a private individual, though sometimes assisted by a trust or other institution) and the assignee (often an immortal and powerful corporation). And even if an assignment is terminated, there can be subsequent disputes in court over the precise extent of what was assigned (and therefore terminated). Was not the "Superman" controversy of a few years ago a dispute of this kind ? Automatic termination, desirable though it is, would not completely short-circuit all such disputes.Anonymousnoreply@blogger.com