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.
The shocking news of Prince’s death has fans, new and old, turning to their Spotify, Pandora and Apple Music apps, only to find them barren of his hits. If you don’t feel like driving to your local record store or spending money on iTunes, unfortunately, your options for listening to His Royal Badness are limited.
the relevance and scope of the first sale doctrine in the digital environment; and
the application of statutory damages in the context of individual file-sharers and secondary liability for large-scale online infringement. (p. iii, The IPTF Report).
The Task Force Report made three recommendations overall:
To enact a new section 504 of the Copyright Act that lists factors for courts and juries to consider when determining the amount of a statutory damages award.
To remove the “notice bar” to the Innocent Infringer “defense” and instead treat notice as merely a factor. This change is especially important to protect a good faith, mistaken user (who I refer to as a “mea culpa infringer” in Safe Harbor for the Innocent Infringer in the Digital Age).
To give courts the discretion to assess statutory damages in ways other than a strict per-work basis in cases involving non-willful secondary liability for online services offering a large number of works.
For example, in Safe Harbor for the Innocent Infringer in the Digital Age I explored the role of the innocent infringer archetype historically and in the digital age. I also highlighted the tension between a “20th century” copyright regime and “21st century” user expectations regarding generally accepted online uses of copyrighted materials. Those customary uses reflect the efficient use of digital technologies and the Internet. Finally, I offered a legislative fix in the form of “safe harbor” from liability for certain innocent infringers akin to the type of protection afforded online service providers.
In that article, I argued that such an exemption seems not only more efficient but also more just in the online environment where unwitting infringement for the average copyright consumer is far easier than ever to commit, extremely difficult to police, and often causes little, if any, real market harm.
In a current work-in-progress titled “Safer Harbor” from Statutory Damages for Mea Culpa Infringers: Remixing the DOC White Paper, I approach the topic from the damages-instead of the liability-phase.
I offer a legislative fix to the statutory damages section that would inject greater balance, fairness and uniformity into the damages assessment. I began writing this article in 2014 but in light the IPTF Report, I intend to analyze and incorporate the Report’s findings and recommendations against the backdrop of my own recommended fixes to copyright law.
The organizers selected Professor Evans to present her work-in-progress, Reclaiming Copyright in the Age of Celebrity Loan-Outs & Gratuitous Transfers, at this esteemed IP law conference.
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.
In this Article, Professor Evans focuses on what has actually transpired since that trigger date. In addition, she considers how to reconcile the probate and nonprobate dispositions of copyright termination interests in a way that best honors an author’s testamentary intent given what we can now glean in fact from the post-1977 termination cases just starting to make their way through the court system.
WIPIP is one of the largest academic conferences for U.S. IP academics fostering robust and productive discussion of intellectual property law and policy scholarship. The Colloquium provides intellectual property scholars with a forum to present their academic works-in-progress and receive early feedback from their colleagues.
That same weekend, CASRIP will also host The Forum will be held on February 18, 2016 at the Hotel Deca. The IV Asia Pacific IP Forum hosted by CASRIP will bring together founding members from UW, UC Berkeley, Waseda University, Hokkaido University, Seoul National University, Renmin University and National Taiwan University, as well as leading Pacific Rim scholars, practitioners, judges and policymakers, to discuss comparative transnational IP law in practice.
Video site will defend strong examples of fair use against copyright claims, saying creators can be ‘intimidated’ by the effort required to defend their rights YouTube will go to court to defend filmmakers wrongly accused of copyright infringement, the site has announced.
It will now offer legal support to “a handful of videos” which Google (YouTube’s parent company) believes represent “clear fair uses”. It will also feature them in a special section of the site dedicated to showcasing strong examples of fair use.
Associate Professor Tonya M. Evans presents her work-in-progress, Reclaiming Copyright in the Ages of Celebrity Loan-Outs and Other Gratuitous Transfers at the Intellectual Property Scholars Roundtable October 9-10th at Texas A&M University School of Law.
In her article, Professor Evans argues that Congress should resolve an apparently unintended conflict between copyright law and probate law, related to a copyright creator’s testamentary freedom, found in the copyright transfer termination provisions.
The article explores a recent Ninth Circuit case, Ray Charles Foundation v. Robinson, 795 F.3d 1109 (9th Cir. 2015). That case presents facts analogous to the problem Professor Evans believes that Congress should remedy; that is, the threat to an artist’s testamentary freedom when statutory heirs assert their copyright termination interests in ways clearly contrary to the decedent author’s wishes.
This inaugural roundtable brings together intellectual property and technology law scholars, providing them with an annual forum for sharing research and peer networking. In addition to the usual work-in-progress presentations, this interdisciplinary roundtable will feature substantial commentary offered by veteran commentators and extended Q&A sessions.
On September 18-19, 2015 Howard University School of Law is hosting a national conference focusing on entertainment, arts, and sports law. It will be held at the Marriott Marquis in Washington, DC. The conference agenda is below. Online registration is available here: http://newglobaleas.com.
The gala dinner and awards ceremony honoring Professor Spencer Boyer is on Friday night. The tickets for that event are available here: http://www.law.howard.edu/1952.