Re: S.505 Signed

On 29 Oct 1998, Sheldon Halpern <shalpern[_at_]pop.service.ohio-state.edu> wrote:
>
> Moreover, as to the Term Extension, there had been some concern over how
> the extension would affect the termination right; i.e, would it defer
> the right for twenty years (to the benefit of publishers and other
> assignees) or increase by twenty years the recapture period, to the
> benefit of individual authors. As I read it, it seems, by silence, to
> do the latter. I find reference only to termination as to the twenty
> year extension where the termination right has heretofore expired.
> However, given the frequency of statutory opacity, I'm not sure that
> that is the proper construction and any comment would be appreciated.

As I read the new amendments, it leaves in place the existing termination provisions as to licenses and assignments executed after Jan. 1, 1978. (i.e., section 203 is untouched by the amendments).

It also leaves in place the existing termination provisions under 304(c) which apply to licenses and assignments executed prior to Jan. 1, 1978 [with one qualification noted below]. That means that an assignment executed in 1950 can be terminated during the five year window starting in 2006 (56 years after the date of the grant).

What the act does is add a new provision (304(d)), which provides a new termination right during the five year period beginning 75 years from the date of the grant. This new termination provision only applies to licenses and assignments whose 304(c) termination rights were not used and have expired.

For example, if a license or assignment was executed in 1930, then it could have been terminated under 304(c) during the five year period from 1986 to 1991. If the author or owner of the termination right did not exercise that termination right, then the new amendments give then a second termination right under 304(d).

One thing is curious to me as I read the new amendments. This deals with "who" can exercise termination rights. The existing law allows the widow or widower, children, or grandchildren to exercise the rights. The amendments add a section saying that if all of these people are dead, then "the author's executor, administrator, personal representative, or trusteee shall own the author's entire termination interest."

In short, as I read it, if the spouse, children, and grandchildren are dead, then the termination rights leave the blood family (great grandchildren, etc) and go to a stranger, who can exercise termination rights and become the copyright owner.

Three strange things:

   One, isn't it strange to put copyright ownership into the hands of a non-relative? What was the policy rationale for that?

   Two, what if the executor, administrator, personal representative, and trustee are all dead? Who gets the right then? Does it just evaporate?

   Three, isn't it quite likely that in many cases all of these people will be dead? Consider a 50 year old author who wrote a novel in 1930, assigned the copyrights that year, and died in 1935. What are the chances that the author's executor, etc. might still be alive in 1998? If the chances are good that these folks are all dead, then doesn't that make the termination rights kind of hollow? Was this intended by Congress to act this way?

    Regards,
     Bob

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