"Seventy years after Eric Knight first penned his tale of the devoted Lassie who struggled to come home, at least some of the fruits of his labors will benefit his daughter." So said the U.S. Court of Appeals for the Ninth Circuit in Classic Media Inc. v. Mewborn on July 11, 2008, when it held that Eric Knight’s daughter had duly terminated the motion picture, television and other rights that had been granted in the "beloved children’s story ‘Lassie Come Home’", which her father first published in 1938. In so holding, the Ninth Circuit significantly narrowed its precedent-setting 2005 copyright termination opinion relating to "Winnie the Pooh," which held that copyright grantees could renegotiate their terminable grants and, thereby, avoid termination under Section 304 of the Copyright Act. Offering some hope for grantees seeking to renegotiate their terminable copyright grants, the Classic Media decision left the door slightly ajar to the possibility that a renegotiation did not have to occur during the actual five-year termination window but could instead occur at any time during the longer statutory notice period. But just one month later the Second Circuit kicked that door wide open in an opinion relating to various novels and other works written by John Steinbeck. Until there is a case resolving the issue in the Ninth Circuit or in the United States Supreme Court, copyright grantees seeking to renegotiate terminable grants should consider taking advantage of the precedent in the Second Circuit that now appears to be more tolerant of renegotiations on this issue by designating New York choice of law and venue in their renegotiated contracts.
The following article by Ben Mulcahy was originally published in The New York Law Journal. To read the article please click here, or visit The New York Law Journal.
Author’s Note: A footnote was inadvertently left of the version of this article that went to press. That footnote was in reference to the termination notice period for Superman opening in 1970. The omitted footnote read "These dates were chosen to mirror the dates in the Siegel case that follows, and the 1970 date is when the notice window would have opened if there had been a termination right that year, but the Copyright Act was amended in 1976, effective 1978, and there was no termination right prior to that."