Re: Re: Termination right

At 4:10 PM -0400 7/1/05, Terry Carroll wrote:
>I doubt that. As a matter of policy, the Copyright Act is clear that an
>author is free to terminate. if you add a penalty for exercising that
>right, you've essentially "made an agreement to the contrary." I'd have
>to query: what's the consideration to the author here in exchange for the
>author's obligation to make that payment? It's a promise not to
>terminate, which is an agreement to the contray.
>
>I haven't seen any cases on that sort of contractual arrangement,
>primarily because I don't think there are any publisher's who've yet tried
>it, at least not timelily enough for it to yet be coming into play. But
>what we've seen so far is that courts read the right to terminate broadly.
>In Marvel Comics v. Simon, the court even construed a settlement agreement
>that stipulated that "Captain America" was a work made for hire as an
>"agreement to the contrary," and allowed the author to terminate.
>http://laws.lp.findlaw.com/2nd/027221.html

I think it was Terry and I who argued a couple of weeks ago about whether you should be able to characterize a work as a WMFH by contract after it's creation. I said you could. Terry just convinced me I was wrong, for a reason that no one has ever suggested before (so far as I know). The post hoc work made for hire agreement is also "an agreement to the contrary." I love finding out I was wrong. It proves the brain is still open for business.

John Noble Received on Sat Jul 02 2005 - 01:50:00 GMT