The Termination of Transfers Provision of the 1976 Copyright Act: Is it Time to Alienate it or Amend it?

Abstract

Article 1, Section 8 of the U.S. Constitution empowers Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The framers of the Constitution recognized that creativity and inventiveness benefitted all of society and should therefore be encouraged. Therefore, by granting "authors and inventors" a limited monopoly in their works, the Constitution encourages "authors and inventors" to continue in their creative endeavors by receiving the fruit of their labors. With the Statute of Anne of England in mind, the first Congress drafted the first American Copyright Act in 1790, keeping with the mandate to achieve a balance between stimulating authors' creativity and promoting broad public availability of authors' creative works. Throughout the years since 1790, the Copyright Act has undergone major revisions as the sophistication of society has increased, changing the needs for copyright protection. The focus on protection of authors has remained constant. The termination of transfers provisions of both the Copyright Act of 1909 and 1976 have frequently been accused of being overly paternalistic towards authors and their ability to negotiate for themselves. This overprotective approach has created a tension between authors and publishers that prevails today. Moreover, the arrival of the motion picture industry has created specialists in negotiations and contracting for both sides, changing the equation entirely. Authors are no longer at the mercy of the mighty publisher. Instead, because the termination of transfers provisions are modernly inalienable, the tables have turned so that an author contributing a bare story line may hold hostage the entire studio that developed his story line into a blockbuster movie once the termination of transfer occurs. Therefore, the balance between authors and publishers has lost its calibration. This article will trace the history of this tension through the Copyright Acts of 1909 and 1976 by examining the termination of transfers provisions of each Act. Finally, this article will evaluate the available ways to circumvent the inalienability of the termination of transfers to restore the balance between authors and publishers.