Monday, July 14, 2008

Lassie Rescued Again

The Ninth Circuit has saved the copyright in Lassie for its authors' heirs, rejecting a patently frivolous claim by Classic Media, Inc. that a woefully inadequate transfer defeated the heirs' termination rights. The opinion in Classic Media, Inc. v. Winifred Mewborn, available here.

The case is pretty straightforward and involves transfers made by the wife (later deceased) and daughters of Eric Knight, who wrote the 1938 novel "Lassie Come Home." Mr. Knight had made an original transfer, and then died in 1943 before the renewal term, bequeathing his rights to his family. Under the Fred Fisher and Rear Window cases, his heirs obtained all rights free and clear of the transfer of renewal rights when they register the renewal claims. Plaintiff's predecessor in interest had an agreement with Mrs. Knight to use the novel in the later television series, but did not have an agreement with the three daughters. In 1976, before the 1976 Act became effective on January 1, 1978, the daughters made transfers for pitiful sums. Termination rights were thus governed by Section 304(c), not Section 203.

A critical difference between the section 203 and section 304(c) termination rights is the limitation of the section 203 termination right to transfers made by the author(s), 203(a)(1), a limitation not found in Section 304(c). See Section 304(c)(1): “(1) In the case of a grant executed by a person or persons other than the author … .” The reason for limiting the section 203 termination right to the author was explained as follows in the Register of Copyrights' 1965 report:

[A]s a direct result of the present renewal provisions, a large number of binding transfers and licenses covering renewal rights have been executed by the author's widow, children, and other statutory beneficiaries, as well as the author himself. We believe that, for example, where the author's widow was the proper renewal claimant but had previously executed a transfer of her renewal rights, she should be able to gain the extended term after the present 28-year renewal period is over.
Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill 96 (Comm. Print 1965).

Section 304(c)(1) was thus intended for exactly the situation that arose with Lassie. Both Sections bar any effort to contractually give up termination rights. The relevant language in Section 304(c)(5) states that termination "may be effected notwithstanding any agreement to the contrary," so it mattered not at all what the language of the 1976 transfers was. They were pre-1978 transfers, and thus were terminable at will if done in a timely fashion, as they were.

The district court got matters completely fouled up, but the Ninth Circuit straightened them out, also delivering repeated criticisms of Classic's lawyer for what it seems to have perceived as an effort to intimidate an elderly woman. See. e.g., page 8533 where counsel accused Mr. Knight's daughter of extortion, and threatened to hold her and her counsel personally responsible for "enormous and irreparable damages." I don't know the precise procedural posture of the case at this point because of the reversal (there was a Lanham Act claim too), but I hope that Mr. Knights' daughter is able to receive her full attorney's fees and costs for a case that should never have been brought (and it was brought by Classic as a declaratory relief action).


Anonymous said...

After she extricated Timmy from every well, cave, and crevice in the county, how could these guys have thought Lassie wouldn't see the termination trap coming? Amateurs!

Anonymous said...

What do you make of the 9th Circuit's attempt to distinguish its earlier holding in Milne v. Stephen Slesinger? I've always thought that Milne was wrongly decided, but it appears that Classic Media has undertaken tremendous efforts to limit the prior decision to (1) explicit revoke-and-regrant agreements that were made (2) during the period in which termination could be effected, (3) "freely intelligently entered into by the parties" (i.e., with assistance of counsel), and that (4) ended up giving the holder of the termination right a sweeter deal than the prior grant.

On one hand, Milne might appear to be a "better" decision under this reading, as certain agreements purporting to "waive" the termination right that might have been given effect prior to Classic Media will now not be given such effect. But on the other hand, doesn't this limitation make the Milne decision even more absurd? What courts are now asked to do is go through a whole rigmarole of equitable decisionmaking just to figure out whether an agreement is one "to the contrary" of the termination provision. Really? Even when a preliminary version of the provision allowing for court reformation of transfers after the statutory time frame was flat out rejected? It seems to me that Congress intended specifically to disallow judicial determination of these considerations and simply allow termination whenever the procedures had been followed, notwithstanding any agreement to the effect that termination could not be had. Period.

Anyways, end rant. But I would be seriously interested in hearing your opinion. Thanks a bunch...