This week on my podcast, I read "Take It Back," my Medium essay, "Take it back: Copyright reversion, bargaining power, and authors’ rights," all about the obscure, but increasingly exciting realm of copyright termination at reversion.
What's copyright termination?
Under US law, creators can file paperwork after 35 years and get their copyrights back, no matter what kinds of contracts they've signed. That's vital, because creators generally negotiate from a position of weakness.
Take Superman creators Siegel and Schuster. They were just two of a vast cohort of would-be comic book contributors. DC had a buyers' market for their creation. They signed away their rights to Superman for $130, and died in poverty.
Normally, the way this works is that an investor (publisher, label, studio, etc) who strikes a bargain with a creator whose work makes it big gets to make out like a bandit, and the creator's consolation prize is that they can shop their *next* project around for top dollar.
For example, The Beatles' early record contract paid the Fab Four *one penny per record sold*. They split that penny *four ways*, but only after the label took out fifteen percent for "promotions."
Sure, those mega-platinum top sellers meant The Beatles could negotiate better deals for their later deals, but for those early money-spinners, fractional pennies were all they could hope for.
That's where reversion kicks in. Only a tiny minority of works have any commercial life after 35 years, but those are also the works that generate the lion's share of the income for the investor orgs, and not all of those creators have a second act.
Many of them are like Superman's Siegel and Schuster - creators with one big score that makes billions for their investors, who themselves languish in poverty and die in misery and obscurity. That's one place where termination can make a difference.
If Siegel and Schuster had been able to revert their rights - or even credibly threaten to do so - DC/Warner would have coughed up enough money to see the pair through to a comfortable dotage and a fair share in the returns from their labor.
It wasn't to be. When Marc Toberoff went to court on behalf of Siegel and Schuster's heirs to get their rights back, Warners went scorched earth in retaliation, suing Toberoff for having the audacity to challenge their perpetual billion-dollar right to their $130 Superman.
Toberoff lost, but today he's representing the heirs of the most prolific Marvel creators, including Stan Lee himself, in a bid to claw back the Marvel pantheon from Disney.
Disney has hired Toberoff's Superman nemesis, Dan Petrocelli, to represent it.
Toberoff's 2014 suit on behalf of the Superman creators was before its time. Today, the currents are shifting. Antitrust has emerged from a 40-year, Reagan-inspired doldrums, and become a muscular, relentless force for labor rights.
In a monopolized market, giving creators more copyright is like giving your bullied kid more lunch money. The bullies who control the school-gates aren't gonna let junior hang onto the extra money you slipped him - they're going to take that, too.
Termination is fundamentally different - they're a way to let (some) creators negotiate from a position of strength: now that their work is a commercial success, they can demand compensation, on pain of clawing their rights back.
My colleague Rebecca Giblin and her collaborators recently published a groundbreaking study documenting the use of termination in US copyrights, and the incredibly bureaucratic hurdles that stand in the way of creators getting their due.
They show how creators from George RR Martin to Stephen King to David Eddings have taken their rights back - and how prolific writers like Francine Pascal (Sweet Valley High) and Ann Martin (Babysitters Club) have taken back their rights on an industrial scale.
Most successful was George Clinton, who terminated the copyright transfers to *1,413* songs, which had been stolen from him by a scamming ex-manager - obviating years of expensive litigation.
Termination is a way to turn copyright into a labor right. Shortening the termination right - say, to 20 years, or even 14, the original term of US copyright - would let creators, rather than their descendants, make extensive use of it.
And while nonprofits like the Authors Alliance have done excellent work in automating termination, the fact remains that the process is too onerous and needs reform.
But as I say in my podcast introduction, any reform to copyright termination needs to take account of what Yochai Benkler calls "commons-based peer production" - free/open source software and Creative Commons content.
It's one thing to rebalance the lopsided negotiating leverage between creators and investors - and another to let some rando who contributed 7 out of 1,000,000 lines of code terminate their free software license and create legal liability for billions of users.
Here's the notes for this episode:
Here's a direct link to the MP3 (hosting courtesy of the Internet Archive, they'll host your stuff for free, forever):
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