TY - JOUR AU - Arnold, Richard AU - Ginsburg, Jane PY - 2020/05/20 Y2 - 2024/03/19 TI - Comment: Foreign Contracts and U.S. Copyright Termination Rights: What Law Applies? JF - The Columbia Journal of Law & the Arts JA - JLA VL - 43 IS - 4 SE - Comments DO - 10.7916/jla.v43i4.6125 UR - https://journals.library.columbia.edu/index.php/lawandarts/article/view/6125 SP - AB - <p>The U.S. Copyright Act gives authors the right to terminate assignments of<br>copyrights in works other than works for hire, executed on or after January 1, 1978,<br>after thirty-five years, and to do so notwithstanding any agreement to the contrary.<br>Given that agreements which are subject to the laws of other countries can assign<br>U.S. copyrights, and purport to do so in perpetuity, U.S. law’s preclusion of<br>agreements contrary to the author’s right to exercise her termination right can give<br>rise to a difficult choice of law issue. Two recent cases which came before courts in<br>the U.S. and England respectively, Ennio Morricone Music Inc. v. Bixio Music<br>Group Ltd. and Gloucester Place Music Ltd v. Le Bon illustrate the problem. In<br>neither case was the choice of law question disputed by the parties, and hence neither<br>court had occasion fully to analyze it. Nevertheless, the Court of Appeals for the<br>Second Circuit in the Morricone case made an observation about the nature of U.S.<br>copyright which has a potentially important bearing on the matter. In this article we<br>consider the choice of law issue from the perspectives of U.S. law and English law.<br>Under either law, the key question is what law governs the permissible scope of<br>an author’s grant. Given that copyright is territorial, as a matter of principle, one<br>would expect that law to be the lex loci protectionis, and that is essentially what both<br>U.S. law and English law stipulate. Where the copyright is a U.S. copyright,<br>application of the lex loci protectionis in accordance with the conceptualization<br>suggested by Morricone, concerning the inalienable character of the right, leads to<br>the conclusion that § 203 cannot be overridden by a contract subject to a different<br>law. We do not conclude, however, that a multinational grant will incorporate every<br>national law limitation on the scope of the grant. Limits on the scope of the grant<br>which are substantive, when characterized in accordance with the lex loci<br>protectionis, must be given effect, but not limits which are evidential or procedural.</p> ER -