Pooh-Poohing Copyright Law’s 'Inalienable' Termination Rights

60 Pages Posted: 22 Dec 2009 Last revised: 4 Oct 2011

See all articles by Peter S. Menell

Peter S. Menell

University of California, Berkeley - School of Law

David Nimmer

Irell & Manella LLP

Date Written: December 18, 2009


From its earliest manifestations, copyright law has struggled to deal with the equitable and efficient division of value and control between creators and the enterprises that distribute their works. And for almost as long as copyright has existed, there has been concern about creators getting the short end of the stick in their dealings with distributors. Since 1909, Congress has sought to protect authors and their families by allowing them to grant their copyrights for exploitation and then, decades later, to recapture those same rights. After judicial interpretation of the 1909 Act frustrated this intent by upholding advance assignments of renewal terms, Congress spoke unambiguously in 1976: “Termination of the grant may be effected notwithstanding any agreement to the contrary...” Yet recent decisions in the Ninth and Second Circuits have eviscerated that clear Congressional command by permitting a grantee to renegotiate the terms of the grant so as to frustrate recapture by the author’s family. After critically analyzing these decisions, this article provides a comprehensive framework for restoring the integrity and clarity of the termination of transfer provisions.

Keywords: copyright, termination of transfers, inalienability, intellectual property

JEL Classification: O34, Z10, K30

Suggested Citation

Menell, Peter S. and Nimmer, David, Pooh-Poohing Copyright Law’s 'Inalienable' Termination Rights (December 18, 2009). Journal of the Copyright Society, Vol. 57, p. 799, 2010, Available at SSRN: https://ssrn.com/abstract=1525516 or http://dx.doi.org/10.2139/ssrn.1525516

Peter S. Menell (Contact Author)

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

215 Boalt Hall
Berkeley, CA 94720-7200
United States

David Nimmer

Irell & Manella LLP ( email )

1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067
United States
310-277-1010 or (310) 203-7079 (Phone)

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