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 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.
Telling users how to strip the DRM from their legally purchased ebooks is not contributory copyright infringement, according to a ruling last month by a federal judge in New York. Judge Denise Cote dismissed two publishers’ claims of contributory infringement and inducement inAbbey House Media v. Apple Inc., one of the many cases to come out of the antitrust litigation against Apple and a handful of major publishers.
Statement From Aereo CEO & Founder Chet Kanojia on United States Supreme Court Decision
Court decision denies consumers the ability to use a cloud-based antenna to access free over-the-air television, further eliminating choice and competition in the television marketplace.
New York, New York (June 25, 2014) – The following statement, distributed via e-mail to Aereo mailing list subscribers and posted on the Aereo blog, can be attributed to Aereo CEO and Founder, Chet Kanojia:
“Today’s decision by the United States Supreme Court is a massive setback for the American consumer. We’ve said all along that we worked diligently to create a technology that complies with the law, but today’s decision clearly states that how the technology works does not matter. This sends a chilling message to the technology industry. It is troubling that the Court states in its decision that, ‘to the extent commercial actors or other interested entities may be concerned with the relationship between the development and use of such technologies and the Copyright Act, they are of course free to seek action from Congress.’ (Majority, page 17)That begs the question: Are we moving towards a permission-based system for technology innovation?”
“Consumer access to free-to-air broadcast television is an essential part of our country’s fabric. Using an antenna to access free-to-air broadcast television is still meaningful for more than 60 million Americans across the United States. And when new technology enables consumers to use a smarter, easier to use antenna, consumers and the marketplace win. Free-to-air broadcast television should not be available only to those who can afford to pay for the cable or satellite bundle.”
“Justice Scalia’s dissent gets it right. He calls out the majority’s opinion as ‘built on the shakiest of foundations.’ (Dissent, page 7) Justice Scalia goes on to say that ‘The Court vows that its ruling will not affect cloud-storage providers and cable television systems, see ante, at 16-17, but it cannot deliver on that promise given the imprecision of its results-driven rule.’ (Dissent, page 11)”
“We are disappointed in the outcome, but our work is not done. We will continue to fight for our consumers and fight to create innovative technologies that have a meaningful and positive impact on our world.”
Billboard.com reported on August 15, 2013 that Robin Thicke, Pharrell Williams and Clifford Harris, Jr. (aka T.I.) filed a peremptory lawsuit in California federal court against Marvin Gaye’s family and Bridgeport Music, which owns some of Funkadelic’s compositions. At issue are complaints about similarities between “Blurred Lines” and Gaye’s “Got To Give it Up”.
In the trio’s lawsuit of Williams, Thicke & Harris v. Bridgeport Music, Gaye et al., they argued: “Plaintiffs, who have the utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies, reluctantly file this action in the face of multiple adverse claims from alleged successors in interest to those artists. Defendants continue to insist that plaintiffs’ massively successful composition, ‘Blurred Lines,’ copies ‘their’ compositions.”
Billboard.com reports further on August 23rd that the defendants rejected a six-figure settlement offer that came shortly after the lawsuit was filed:
“According to sources knowledgeable with the lawsuit, the settlement offer came after Frankie Christian Gaye, Marvin Gaye III and Nona Marvisa Gaye accused Thicke’s “Blurred Lines” hit single of plagiarizing “Got To Give it Up,” written and composed by Marvin Gaye, who died in 1984.”
In the court of public opinion, many fans of both artists pick up the similarities. The legal question is whether similarities are “substantially” so as a matter of law and whether the trio copied from the original unlawfully.
Only time will tell. Most of these cases settle out of court. But in light of the bright line drawn in the sand by Thicke and his co-composers and the value of Marvin Gaye’s copyrights and family’s reaction both to the song and the lawsuit, this is just the type of suit that could actually play out in the courtroom.
What do you think about the song? Similar? Substantially so? Check out the video mashup and share your two cents in the comments section:
Source: JOLT Digest of Harvard Journal of Law and Technology
“The Supreme Court, in Kirtsaeng v. John Wiley & Sons, Inc., held in a 6-3 decision that the “first sale” doctrine applies to copies of copyrighted work lawfully made abroad, reversing the judgment of the Court of Appeals for the Second Circuit. The case involved the resale in the United States of approximately 600 copies of textbooks that originally had been bought in Thailand at relatively inexpensive prices. On remand, the Supreme Court ordered that the Second Circuit conduct further proceedings consistent with the Court’s opinion.
The unauthorized importation of copyrighted material is barred by § 602 of the Copyright Act of 1976 (17 U.S.C. § 602), and John Wiley & Sons’ (“Wiley”) right to distribute is protected by § 106(3). However, the first sale doctrine of § 109(a) extinguishes the copyright owner’s interest in a particular copy after the first sale to a consumer. At issue in Kirtsaeng was whether § 109(a) applies to goods of “foreign manufacture”—more specifically, whether the phrase “lawfully made under this title” applied to goods like the Asian editions of the Wiley textbooks.”
This week marks a historic time in our nation’s highest Court. Today the Supreme Court heard oral arguments on Proposition 8. Proposition 8 was California’s 2008 ballot initiative banning gay marriage. It won support from 52% of voters and nullified a decision five months earlier by the state’s Supreme Court allowing the practice. The state court in May 2009 said the ban could stand. Listen to oral arguments or read the transcript.
On Wednesday, the justices will hear arguments in the Defense of Marriage Act (DOMA), a 1996 federal law that bars federal recognition of same-sex marriages regardless of their validity under state law. Some of my students at Widener University School of Law are increasing awareness of DOMA on campus by providing information and answering questions at a booth hosted by OUTLAW, the school’s LGBTQ campus organization.