On Thursday, March 23rd I presented a Lunch & Learn at the University of New Hampshire School of Law’s Franklin Pierce Center for Intellectual Property.
I covered 203 copyright transfer termination rights mechanics, the post-2013 response of copyright creators and copyright-industries when the first termination “window” opened for post-1977 transfers, and stakeholder and commentator forecasts about whether the anticipated termination tidal wave of destruction is more academic than real.
Copyright transfer termination permits a copyright creator to reclaim control of his or her copyright several decades after transferring the right. This applies to all copyright transfers no matter what a contract may say about a perpetual transfer. Creators cannot waive this right. But they can forfeit it if they are not careful.
In fact, some creators have already forfeited their rights if they transferred copyright in 1978 and failed to serve notice of termination by 2016.
I offered some preliminary conclusions on the future of copyright-dependent industries in light of the 203 termination right.
Watch, listen and learn!
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.
Prof. Evans to present paper at #WIPIP2016 Colloquium on impact of copyright transfer terminations on loan-outs & other gratuitous transfers
On February 18-19, 2016 the University of Washington Law School and Center for Advanced Study & Research on Innovation Policy (CASRIP) will host the annual Works-in-Progress Intellectual Property (WIPIP) Colloquium.
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.
Prof. Evans explores copyright transfer terminations & probate law at TAMU Law IP Scholars Roundtable 10/9-10/10
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.
By thoroughly examining more than a dozen publishing industry contracts, this how-to guide answers the most common questions writers ask about publishing, agency, coauthoring, working-for-hire, and other agreements.
This reference breaks down the complex legalese in each contract and provides a clause-by-clause explanation of their contents. Commentary on negotiation points and the consequences related to the absence or presence of critical verbiage will help those—from the most seasoned author signing with a major publishing firm to an author who aspires to publish or is thinking of working with a collaborator on a project—who seek to demystify the process of signing important agreements operate from a more knowledgeable position.
Published by Legal Write Publications (978-0967457987). Buy now at Amazon.com.
My law review article, Safe Harbor for the Innocent Infringer in the Digital Age, published recently by Willamette Law Review (50 Willamette L. Rev. 1 (2013)), has been judged one of the best law review articles related to entertainment, publishing and/or the arts published within the last year!
Accordingly, the editor of the 2014 edition of the Entertainment, Publishing and the Arts Handbook selected Safe Harbor for inclusion in the annual Handbook anthology published by Thomson Reuters (West).
Impending trial dates have a funny way of inspiring settlement agreements …. TE
By: Bernard Vaughan NEW YORK
“Marvel Comics has agreed to settle a lawsuit by a comic book writer who sued the publisher over the copyright to the flaming-skulled character Ghost Rider. The agreement, disclosed in a letter filed Friday in U.S. District Court in Manhattan, if finalized would resolve five-years of litigation brought by former Marvel freelancer Gary Friedrich, who claimed he created the motorcycle-riding vigilante.
Gary Friedrich began considering legal action against the comic book company in 2004 when he learned of an impending movie adaptation. He sued Marvel for copyright infringement, claiming that he owned the character and its use in films as well as toys, video games and other merchandise. Marvel argued that while Friedrich contributed ideas, the comic was created through a collaborative process.”
Read the complete article “Marvel, writer agree to settle Ghost Rider copyright suit” at Reuters.com
**Hot Topic presented originally by T. Wise, member the faux student firm of Zarefoss, Petrou & McClogan in my Copyright & Trademark class.**