Academic journal article Boston University Law Review

Private Ordering and Notice Failure in the Shadow of Termination

Academic journal article Boston University Law Review

Private Ordering and Notice Failure in the Shadow of Termination

Article excerpt


Professor R. Anthony Reese provides an extremely detailed account of how a beneficiary of termination rights encounters numerous obstacles to successfully claiming those rights because of notice failure.1 He rightly enumerates several changes to the law that would alleviate some of this notice failure, making it easier for the beneficiary of termination rights to exercise her rights successfully.2 Even so, it remains abundantly clear that laypersons will still find even a modified termination system quite daunting to understand and use without specialized legal counsel.

In this essay, I respond to Professor Reese's article by drawing attention to and analyzing how attempts to privately order3 create and exacerbate notice failure in regards to termination. Indeed, private ordering may be, or could become, one of the most significant obstacles to the exercise of termination rights. I therefore recommend that courts respond aggressively to protect termination rights by voiding contractual provisions that deny their existence.

This argument may seem rather odd because it criticizes private ordering for exacerbating notice failure. After all, people generally use private ordering to reduce ambiguity. For example, parties use choice-of-law provisions to clarify the law that governs agreements.4 They also use releases to specify the person responsible for risk.5 Perhaps most important of all, parties acknowledge the truth of potentially debatable factual statements in order to ensure that transactions operate as planned.6 Indeed, courts sometimes pay attention to private ordering when identifying the owner of copyright rights.7

In the context of termination, however, private ordering does not reduce ambiguity. As I will describe below, termination allows authors who convey copyright rights to recapture those rights thirty-five years later. Troubles arise because those who acquire copyright rights frequently structure transactions to stop authors from exercising their termination rights. Unfortunately, some of the authors who agree to these deals have supposedly non-waivable termination rights,8 but signed agreements raise doubt about whether those rights continue to exist. As long as there is a possibility that courts will enforce these agreements as written, some authors who could terminate will never exercise their rights. This is problematic in light of a clear statutory policy against the waiver of termination rights.9

Because of this statutory policy, I believe that courts should ignore contractual private ordering designed to eliminate authors' termination rights. This does not necessarily mean that termination rights will always exist in disputed cases. If the underlying reality of the transaction is such that an author does not possess termination rights, that would still be the case. However, if the underlying reality is that the author does have termination rights, no recitation to the contrary should deprive her of those rights.

My argument proceeds in three parts. Part I examines the way in which private ordering creates ambiguity in the context of termination rights. Part II analyzes how courts do, and should, treat contractual private ordering in the context of termination. Part III offers a brief conclusion.


Appreciation of the problem under consideration requires a look at how the duration and form of copyright rights have changed over the last century. Following the Copyright Act of 1976 ("1976 Act"), as amended by the Copyright Term Extension Act of 1998 ("CTEA"), copyrights generally last for a single term of the author's life plus seventy years.10 Things were far different, however, in the years before January 1, 1978, when the 1976 Act took effect. Before that time, under the Copyright Act of 1909 ("1909 Act"), copyright lasted for an initial term of twenty-eight years plus a second term of twenty-eight years if the author properly filed for a renewal of her copyright. …

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