Re: Extending the 35 year grant of rights in a copyright

On Tuesday, April 01, 1997, Jonas Kant <jonas[_at_]donahue.com> wrote:
>
> Under the 1976 Copyright Act, an author or his heirs are given
> the power after a period of years to terminate certain grants
> (i.e. transfers) of rights of copyright by assignment or license
> (either exclusive or nonexclusive) and regrant the rights for a more
> favorable economic return. For grants made after the effective date
> of the 1976 Act (January 1, 1978), 17 U.S.C. Sec 203 gives to the
> author or the deceased author's surviving spouse, children or
> grandchildren the right to terminate an author's grant within a
> five-year window starting 35 years from the date of the grant.
>
> My question is whether anyone can conjure or has discovered any viable
> exception or other means which would allow the grantee to retain his
> or her interest in granted rights for longer than 35 years? (e.g. any
> case law or opinions as to the validity of agreements impairing the
> freedom to terminate or to make future grants; or the validity of
> further grants and agreements to make further grants of terminated
> rights. Nimmer proffers these as possible areas to attempt
> "contracting around" the 35 year term. Has anyone heard of
> successful/unsuccessful attempts at such?)
>
> Any responses (especially with authoritative references) welcome.
> Thank you.

The solution I've often seen is the present grant of a right of first refusal in the event of a re-offer of the work after the exercise of the statutory right of termination.

Section 203 (a) (5) says that "[t]ermination of the grant may be effected notwithstanding any agreement to the contrary." You can try to contract around that, but the Judge is sworn to uphold the law. The "grant" referred to concerns a transfer or license made on or after 1/1/78, so you couldn't "test" such a clause until at least the year 2013.

Ron Abramson
<abramson[_at_]hugheshubbard.com> Received on Thu Apr 03 1997 - 22:24:30 GMT