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Inalienable Profit-Sharing Schemes in Copyright Law Harvard Journal of Law & Technology Volume 27, Number 1 Fall 2013 STRONGER THAN KRYPTONITE? INALIENABLE PROFIT-SHARING SCHEMES IN COPYRIGHT LAW Guy A. Rub* TABLE OF CONTENTS I. INTRODUCTION ................................................................................ 51 II. TERMINATION OF TRANSFER AND OTHER INALIENABLE PROFIT-SHARING MECHANISMS ..................................................... 56 A. Termination of Transfer as an Inalienable Right ....................... 56 B. Termination of Transfer Under Section 203 .............................. 58 C. Termination of Transfer Under Section 304(c)–(d) ................... 60 D. Exceptions to the Termination-of-Transfer Power .................... 62 E. Inalienable Profit-Sharing Mechanisms in Other Jurisdictions ............................................................................. 64 1. Droit de Suite .......................................................................... 65 2. Employees’ Compensation Rights .......................................... 66 3. Other Inalienable Rights in Commercially Successful Works ................................................................................ 67 III. NON-MANDATORY PROFIT-SHARING SCHEMES ........................... 68 A. The Desirability of Profit-Sharing Arrangements ...................... 68 B. Profit Sharing and Contractual Default Rules ........................... 71 C. Rights Against Downstream Buyers: Profit Sharing and Property Law ........................................................................... 74 * Assistant Professor of Law, The Ohio State University Michael M. Moritz College of Law. I would like to thank Stefan Bechtold, Omri Ben-Shahar, Chris Buccafusco, Rebecca Eisenberg, Larry Garvin, James Gibson, Fernando Gomez, Stephanie Hoffer, Ariel Katz, Edward Lee, Mark Lemley, Glynn Lunney, Mark McKenna, Sean Pager, Margaret Radin, Aaron Romanello, Andres Sawicki, Kathryn Spier, Peter Swire, Greg Vetter, Joel Waldfogel, Chris Walker, Tal Zarsky, and the participants of the Junior Scholars in Intellectual Property Workshop, Workshop for Junior Researchers on the Law and Economics of Intellectual Property and Competition Law, the American Law and Economic Association Annual Meeting, the Faculty Workshop at the Moritz College of Law, the Technology and the Law Workshop at the University of Haifa, and the Ohio Junior Scholars’ Workshop for their valuable comments, Christopher Matgouranis and Matthew Gherlein for outstanding research assistance, and the editors of Harvard Journal of Law & Technology for their suggestions and hard work. All remaining errors are, of course, my own. 50 Harvard Journal of Law & Technology [Vol. 27 IV. THE UNCONVINCING TRADITIONAL JUSTIFICATIONS FOR INALIENABLE TERMINATION RIGHTS .............................................. 78 A. The Weakness of Authors: The Starving Artist Myth ................. 79 1. Are Artists Poor, and, if so, Are Termination Rights the Solution? ..................................................................... 81 2. Are Artists Unsophisticated, and, if so, Are Termination Rights the Solution? ..................................... 84 3. The Buyers’ Market Structure ................................................. 86 B. The Uncertain Future Value of Copyrighted Works .................. 87 C. Agency Costs and Collective Action Problems Among Buyers ...................................................................................... 89 D. Profit-Sharing Arrangements as Providing Expressive Incentives ................................................................................. 92 E. Termination of Rights in Works That Are Not Exploited ........... 93 V. THE EX ANTE EFFECT OF INALIENABLE PROFIT-SHARING SCHEMES: TERMINATION OF TRANSFERS AND INCENTIVES TO CREATE ..................................................................................... 95 A. Competitive Markets with Risk-Neutral Participants ................ 96 B. Competitive Markets with Marginally Diminishing Utility of Wealth and Risk Aversion ......................................... 98 1. Termination Rights and Reallocation of Risk ......................... 99 2. Termination Rights and Reallocation of Wealth ................... 100 C. Non-Competitive Markets with Risk-Neutral Participants ............................................................................ 101 D. Non-Competitive Markets with Diminishing Utility of Wealth and Risk Aversion ...................................................... 104 E. The Efficient Vesting Period for Termination Rights ............... 105 F. The Model, Droit de Suite, and Employees’ Compensation Rights ............................................................. 107 G. Termination Rights and Irrationality ....................................... 108 VI. THE EX POST EFFECT OF INALIENABLE PROFIT-SHARING SCHEMES: INEFFICIENCIES IMMEDIATELY BEFORE AND AFTER TERMINATION .................................................................... 111 A. The End-Game Problem: Externalities on the Eve of Termination ............................................................................ 111 1. Contractual Solutions to the Problem of Externalities .......... 112 2. Rescission and Re-grant of Transfers .................................... 113 B. Post-Termination Fragmentation of Rights ............................. 115 1. The Causes for Post-Termination Fragmentation and Its Effects ........................................................................ 116 2. The Publisher as a Bundler .................................................... 118 3. Solutions to the Post-Termination Fragmentation Problem Under Current Law ........................................... 119 a. Limiting the Number of Authors ........................................ 119 No. 1] Inalienable Profit-Sharing Schemes in Copyright Law 51 b. Denying the Authors Their Veto Power ............................. 120 c. The Derivative Work Exception ......................................... 121 C. Comparing the Mechanics of Termination Rights, Droit de Suite, and Employee Compensation Rights: Property vs. Liability Rules ................................................... 123 VII. ABOLISHING TERMINATION RIGHTS ......................................... 125 A. When Are Termination Rights Desirable? ............................... 126 B. The Current State of the Copyright Industries ......................... 126 1. The Book Publishing Industry ............................................... 126 2. The Music Recording Industry .............................................. 129 3. The Film Industry and Software Industry ............................. 131 4. The Fine Art Industry and Resale Royalty Rights ................ 132 VIII. CONCLUSION ............................................................................ 133 I. INTRODUCTION Superman might be dying. It is not Kryptonite that threatens the Man of Steel’s life; it is copyright. In fact, it is a little known and unusual mechanism in the Copyright Act that allows authors to terminate every sale and every license they execute after a few decades. The successors of Jerry Siegel and Joe Shuster, the creators of Superman, are attempting to use this mechanism to terminate the agreement that assigned the copyright in Superman to DC Comics and Warner Brothers.1 If they succeed, and if the parties fail to reach another deal, the Superman franchise as we know it will cease to exist. The successors of the creators of Superman are not alone. In the upcoming years, several superstar recording artists might also terminate their old recording agreements with their record companies. In doing so they will take advantage of section 203 of the Copyright Act, which provides that every author can terminate any sale of copyright and any license thirty-five years after its execution.2 This termination right — which some have called “a time bomb”3 — is 1. See Siegel v. Warner Bros. Entm’t Inc., 542 F. Supp. 2d 1098, 1102 (C.D. Cal. 2008); DC Comics v. Pac. Pictures Corp., No. CV 10-3633 ODW (RZX), 2012 WL 4936588, at *1 (C.D. Cal. Oct. 17, 2012). 2. 17 U.S.C. § 203 (2012); see also infra Section II.B. Section 203 applies to grants executed after January 1, 1978 (the effective date of the Copyright Act of 1976) and therefore, termination under this provision is possible only starting in 2013. 3. David Nimmer & Peter S. Menell, Sound Recordings, Works for Hire, and the Termination-of-Transfers Time Bomb, 49 J. COPYRIGHT SOC’Y U.S.A. 387, 387 (2001). 52 Harvard Journal of Law & Technology [Vol. 27 non-transferable4 and non-waivable, and it can be exercised “notwithstanding any agreement to the contrary.”5 In enacting this mechanism Congress seems to have accepted a common supposition that protecting authors by giving them “a second bite at the apple” requires making termination rights inalienable. This Article provides an in-depth economic analysis of this mechanism, and it inquires into whether, when, and how these rights might promote the goals of our copyright system and the welfare of authors. It concludes by finding that termination of transfers, as an inalienable right, likely causes more harm than good, and, contrary to Congress’s intent, is probably detrimental to the interests of authors. Termination rights stand out in our copyright system. Part II of this Article describes this mechanism and suggests that it is difficult to find similar mechanisms in U.S. copyright law, which is typically hostile to inalienable rights. While a similar mechanism
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