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17 U.S.C.S. 304(c)(5) states in part that termination may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant. The phrase "agreement to the contrary" is unclear. When a statute's terminology is not clear on its face, it is appropriate to seek guidance in the legislative history.
The author originally granted various rights in the "Winnie-the-Pooh" works to appellee in 1930. In 1983, the author's heirs entered into a new agreement that revoked the original 1930 grant and reissued rights in the works to appellee. In seeking to recapture the rights to the various Pooh characters, appellant served appellee with notice of termination in 2002. After she served the termination notice, appellant commenced the present action in the district court, seeking a declaration that her termination notice was valid and effectively terminated appellee’s rights in the Pooh works. Thereafter, appellee filed a motion for judgment on the pleadings or, alternatively for summary judgment, contending that appellant’s termination notice was invalid because the 1930 grant of rights targeted by the termination notice had already been revoked under the 1983 agreement, and therefore, was no longer in existence and not subject to statutory termination under the Sonny Bono Copyright Term Extension Act of 1998 (CTEA), 17 U.S.C.S. §§ 108, 203, 301-304. In turn, appellant filed a cross-motion for summary judgment, seeking a declaration that the termination notice was valid and that appellee’s rights in the Pooh works would terminate in 2004. The district court held that the termination notice was invalid, noting that the parties’ 1983 agreement itself revoked the grant of rights under the 1930 agreement that appellant’s notice sought to terminate, and that the grant made to appellee under the 1983 agreement was not subject to termination under the CTEA. Appellant challenged the district court’s decision.
Under the circumstances, was appellant’s termination notice invalid?
The Court agreed with the district court that appellant's termination notice was invalid because the 1930 grant of rights targeted by the notice had already been revoked under the 1983 agreement and, therefore, was no longer in existence and not subject to statutory termination under 17 U.S.C.S. § 304(d) of the CTEA, which only authorized termination of copyright agreements executed before 1978. The court rejected appellant's contentions that 17 U.S.C.S. § 304(c)(6)(D) required a "moment of freedom" to be built in between the agreement's simultaneous revocation and re-granting of rights and that the 1983 agreement constituted an "agreement to the contrary" under § 304(c)(5).