Re: droit de suite

On 04/07/2000, Marty Hayes <9ball[_at_]hostsite.net> wrote:
>
> I think *that* is really the crux of the issue -- the perception that
> the big nasty publishers *fleece* creators out of their rights by
> paying them a pittance of what those rights are worth. BUT, at the
> time of negotiation, the true value of those rights is not yet
> established. Prior to Grisham's first hugely successful book, the
> perceived value of his rights to a work in manuscript form certainly
> wasn't the same that as a manuscript would be today.

U.S. law attempts to provide for this problem by giving to authors and heirs the right to "terminate" any transfers of copyright, and thereby recapture the copyright for themselves, after a certain period of time. The provisions require a minimum of two years' notice prior to termination, to allow the parties' to renegotiate and come up with a new deal. See sec. 203 and 304(c).

I would have preferred retaining copyright renewal, which places works that are not renewed into the public domain at an earlier point. The problem with renewal was that the U.S. Supreme Court allowed the author to assign the renewal period at the time of the initial transfer, which defeated the purpose of allowing authors to renegotiate if their works became famous. It would have been preferable, in my opnion, for Congress simply to make the renewal period non-assignable until shortly before the renewal term began.

The difficulty with applying these theories to original works of art is that artists traditionally made/make money from selling the original, not from selling reproductions. Even if the work becomes well-known and valuable, it increases the royalties from reproductions only slightly. If you believe the artist should be able to capture a bigger share of the work's value [natural rights view], then droit de suite makes some sense. If you believe in the utilitarian view of copyright, then the existence of the work is proof that traditional copyright provided a sufficient incentive to create the work. Then the only question is whether droit de suite would increase the incentive for other artists, and thereby increase the store of copyrighted works; and whether it is in the public interest to do so.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Mon Apr 10 2000 - 19:44:28 GMT