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In James Cameron’s sci–fi classic, The Terminator, a cyborg is sent back in time to assassinate. Something similar is playing out in Hollywood at the moment thanks to a mid-1970s change to copyright law that allows authors or their heirs to terminate a copyright grant. And like the film, there’s resistance.
When Congress decided to extend the copyright term in 1976, it chose to recognize those who had created works at the early stage of their careers but handed their rights over without much bargaining power. By allowing authors to serve notices of termination to publishers or studios, those authors were allowed to enjoy the benefits of the latter stages of a copyright term. Authors just had to wait at least 35 years for another bite at the apple. As Arnold Schwarzenegger would say, “I’ll be back.”
The time is now for many authors, and what first created hassles in the music industry has slowly crept into the purview of filmmaking just as major studios are in the midst of reboot mania. Even The Terminator itself appears be the subject of a termination battle judging by an only partly-informed Deadline story reporting a “copyright reversion” 35 years after the release of the 1984 film. Sources close to Cameron refuse to discuss what’s happening, citing ongoing negotiations.
Studios will, of course, fight back.
In late February, for instance, in the midst of trying to defeat a $400 million lawsuit over This Is Spinal Tap, Vivendi and StudioCanal insisted that the co-creators of the 1984 rockumentary didn’t have standing to sue over contingent profits, but did acknowledge that a court would likely have to weigh in on Harry Shearer’s attempt to effectuate a termination.
On Wednesday, before arguing that the co-creators were beneficiaries of contracts and can indeed sue, the defendants’ lawyer wrote of a “grossly inappropriate litigation threat against Harry Shearer” and also revealed that termination notices were also recently issued by Rob Reiner, Christopher Guest and Michael McKean. (Read here.)
According to Vivendi, Shearer has no right to terminate because the movie and its music were created as works for hire. That would mean he and his cohorts are technically not the statutory authors of the work. The termination provisions have an exception for works made for hire. It’s a common studio defense that is also being litigated in a dispute over Friday the 13th rights.
As more and more termination notices are sent, expect the fights to become exotic. Paul McCartney’s suit against Sony over Beatles songs he wishes to reclaim signals how international differences in law may come into play. Thanks to a recent decision over in England, contractual promises made by foreign authors could potentially interfere with their ability to cancel copyright grants.
That’s not all.
In a move that’s never been reported until now, writer Avery Corman sent a termination notice over Kramer vs. Kramer, his novel that served as a basis for the film that won an Academy Award for Best Picture in 1980. In response to an attempt to grab back rights to a work that ironically is focused on a custody battle, Sony’s Columbia Pictures contested the termination last year to the U.S. Copyright Office.
The studio’s position is that the grant of Corman’s rights came via an oral agreement made in 1977, and only grants executed by the author on or after January 1, 1978, are eligible for termination. The parties formalized the details of a license after that date, but Sony insists, “It is immaterial when, exactly, the 1977 Longform or 1978 Copyright Assignment was executed. Under either the 1909 or 1976 Copyright Acts, such subsequent writings serve to validate the oral grant of rights as of the time the oral agreement was made.”
Corman has hired Marc Toberoff, a specialist in termination rights who once did battle with Warner Bros. over Superman and is also currently representing the screenwriter of the original Friday the 13th. So far, however, no lawsuit has been filed over Kramer vs. Kramer.
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