Judicial Resistance to Copyright Law's Inalienable Right to Terminate Transfers

8 Pages Posted: 10 Mar 2009

See all articles by Peter S. Menell

Peter S. Menell

University of California, Berkeley - School of Law

David Nimmer

Irell & Manella LLP


For a century, Congress has sought to protect authors and their families by allowing them to grant their copyrights for exploitation and then, decades later, recapture those same rights. After judicial interpretation of the 1909 Act frustrated this intent, Congress spoke unambiguously in 1976: Termination of the grant may be effected notwithstanding any agreement to the contrary . . . . 17 U.S.C. Section 304(c)(5). Yet, in Penguin Group (USA) Inc. v. Steinbeck, 537 F.3d 193 (2d Cir. 2008), the Second Circuit eviscerated that clear Congressional command by enabling a grantee to renegotiate the terms of the grant so as to frustrate recapture by the author's family. This ruling follows a Ninth Circuit decision similarly allowing a grantee to go through the charade of rescinding and regranting a copyright license for the express purpose of blocking the author's family members from exercising their statutory termination rights. Milne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1046 (9th Cir. 2005). Notwithstanding the unequivocal meaning of the word any in Section 304(c)(5), explicated unmistakably in the legislative history, these decisions invite grantees to engage in all manner of opportunistic behavior to frustrate Congress' clearly expressed language and intent. In this amicus brief supporting grant of certiorari by the Supreme Court in the Steinbeck case, the authors argue that the Court can restore the intergenerational equity that Congress legislated and remove the cloud now hanging over innumerable copyrighted works.

Suggested Citation

Menell, Peter S. and Nimmer, David, Judicial Resistance to Copyright Law's Inalienable Right to Terminate Transfers. UC Berkeley Public Law Research Paper No. 1355678, Available at SSRN: https://ssrn.com/abstract=1355678 or http://dx.doi.org/10.2139/ssrn.1355678

Peter S. Menell (Contact Author)

University of California, Berkeley - School of Law ( email )

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David Nimmer

Irell & Manella LLP ( email )

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