From the late 1890s, when Congress began the process of revising and consolidating our copyright laws into what became the 1909 Act, the issue of the proper length of copyright was twined with the ability of authors of get back rights they had transferred. These have been called termination or reversionary rights. The 1909 Act as originally proposed had a term of life of the author, but this was dropped out of concern that authors would not be able to renegotiate royalty payments if a work later became popular. A dual system of an original term and a renewal term was believed to allow such renegotiation, or "second bite at the apple." As a result, Congress granted a 28 year original term, and a 28 year renewal term. The intent was that authors would not be able to convey rights to the renewal term when they conveyed rights to the original term. This intent was expressed in Section 24 of that act which stated that renewal could be made by “the author” (or heirs). It did not include “assignees” for this reason.
A decision by the First Circuit two years later took this approach, White-Smith Music Co. v. Goff, 187 F. 247 (1st Cir. 1911), as did the Copyright Office which had participated in the drafting of the 1909 Act. Nevertheless, 32 years later, in Fred Fisher Music Publishing Co. v. M. Witmark & Sons, 318 U.S. 643 (1943) the Supreme Court held that such dual assignments were valid, assuming the right was clearly conveyed and was for valid consideration.
For those who are textualists like me, the beginning of the opinion is stunning for its chutzpah, “if we look only to what the Act says, there can be no doubt as to the answer.” That answer should have been that the author was only able to assign the original, and not the renewal term. The saving grace in the opinion if there was one was that if the author died before the renewal term, the conveyance of the renewal term was void as a contingent interest, the contingency having been the author living to day 1 of year 29. This holding is what later led to the Supreme Court’s “Rear Window” case, Stewart v. Abend, 495 U.S. 207 (1990). Whether this also led to suicides by authors near the end of the original 28 year term in order to provide for their families might be a subject for a law student looking for a Note topic.
In the 1976 Act, Congress, having been thwarted by the Fred Fisher decision, set out to unmistakably make its intention clear by providing for a termination right that could not be waived. 17 USC 203(a)(5),, 304[c] (5):
Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.
Congress also made pellucid that any grant terminated was only terminated for U.S. rights:
Termination of a grant under this subsection affects only those rights covered by the grant that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws.
It is this provision that prompted today’s unreasonably long post. There are a number of reasons why a terminated grant is only effective as to U.S. rights even if the grant was for worldwide rights. One reason is that copyright is territorial: there is no international copyright law. There are international copyright treaties, but no international copyright law binding as domestic law in countries throughout the world. Even in the EU, there is a mix of EU mandated laws, and directives that are then implemented into domestic laws as each EU nation chooses.
In the U.S., copyright treaties are not self-executing, so what you get, either as a U.S. or foreign author, is only what title 17 gives you, no more no less. If a U.S. author conveys worldwide rights to a U.S. company, U.S. rights will be governed by U.S. law in the U.S., and by foreign copyright law in foreign countries. That’s why the termination right, quoted above, excludes the effect of a termination for foreign rights. In addition, all courts to have considered the issue agree that the U.S. copyright act is not extra-territorial: it has no effect at all in another country. Moreover, very few countries have termination rights. Countries can of course apply choice of law (private international law) as they see fit to disputes involving a foreigner but that too is an application of foreign law, not U.S. law. Some in the U.S. may wish that U.S. law be Ius Gentium but it isn't. Even the Ancient Romans had to contend with local laws and customs in territories they conquered. (I may have to bone up on the law of copyright in Greenland, which is not a Berne Convention member, and supposedly Denmark's Berne membership does not extend to Greenland).
A district judge in Louisiana felt differently though. In an opinion that is a curious mix of appearing at first glance to be scholarly, yet coming to conclusions that make absolutely no sense, in Vetter v. Resnick , 2025 WL. 338295 (M.D. La. Jan. 25, 2025), 2024 WL 3405556 (M.D. La. July 12, 2024) the court contradictorily held that there is a single copyright vesting in the country of origin and which is then recognized in other countries according to the domestic laws of each country. If copyright is accorded protection according to domestic laws, then there are multiple copyrights, and not a single copyright. And there are multiple copyrights, which is precisely why a terminated grant under U.S. law does not affect the grant of foreign rights, why U.S. copyright law is not extraterritorial, and why the Berne Convention is not self-executing.
Given the very clear statutory termination language, how could any literate person, much less judge, believe that a terminated grant under U.S. law terminates foreign rights when the statute says it doesn’t? Good question. Greatly simplifying, the court agreed that the statutory phrase “arise under this title” could “encompass[] more than just the specific rights enumerated in the United States Copyright Act.” That’s nonsense: where does one find statutory rights that are not enumerated in a statute? Are we back to Fred Fisher where we know what the statute says but we are going to ignore it in favor of our own policy judgments under the guise of ersatz statutory interpretation of words that are not in the statute?
Careful readers may add, “yeah, what about that specific exclusion of foreign rights in the statute?” The court bought plaintiff’s argument that the language was not only “qualifying” but “qualifying of rights rather than territories.” Aside from the obvious fact that the language in question is not in the least bit “qualifying,” are not “foreign rights” rights in a foreign territory? English is my native language and I think they are.
Thankfully, other courts have easily read the plain language of the statute and come to a correct result. In a 2008 opinion, Siegel v. Warner Brothers Entertainment Inc., 542 F.Supp.2d 1098, 1140 (C.D. Cal. 2008) Judge Stephen Larson, a jurist well experienced in copyright law, agreed that Section 304(c)(6)(E) barred a claim for profits from foreign exploitation post-termination, noting:
the statutory text could not be any clearer on this subject. Through this section, Congress expressly limited the reach of what was gained by the terminating party through exercise of the termination right; specifically, the terminating party only recaptured the domestic rights (that is, the rights arising under title 17 to the United States Code) of the grant to the copyright in question. Left expressly intact and undisturbed were any of the rights the original grantee or its successors in interest had gained over the years from the copyright through other sources of law, notably the right to exploit the work abroad that would be governed by the copyright laws of foreign nations. Thus, the statute explains that termination “in no way affects rights” the grantee or its successors gained “under foreign laws.”
Our Louisiana judge declined to follow Siegel or the statute. One can hope there will be an appeal, where the ultra-plain language of the statute will prevail.
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