Today, Public Knowledge filed an amicus brief calling on the Supreme Court to hear Markham v. Hasbro, a case about ensuring that creators can take advantage of their legal right to regain the rights to their works.
Authors, creators, and artists of all kinds are increasingly reclaiming their copyrights by exercising their “termination” rights. Termination rights allow artists and their heirs to take back rights to works they have licensed or sold, once a certain number of years have passed.
However, termination rights are not available for works “made for hire.” In theory, this is meant to protect employers whose employees create copyrightable work as part of their job description. In practice, almost every attempt at termination is met with rightsholders claiming that the works in question were “works-for-hire,” no matter how implausible the claim. This forces artists to bring expensive claims in federal court, just to exercise a right that Congress intended to be a matter of paperwork.
In the brief, Public Knowledge argues that termination rights are vital to artists, and that the test which the lower court used to determine “work for hire” status is outdated, undermines the termination regime for a vast swath of cultural works, and should be abolished.
The following quote can be attributed to Meredith Rose, Senior Policy Council at Public Knowledge:
“Congress designed the termination right to be irrevocable, inalienable, and a source of much-needed equity for creators. An artist does not know how much her future work will be worth when she signs her contract. Too often, that means that publishers, labels, and other intermediaries get rich, while the artist is lucky to see pennies. This problem is particularly acute among legacy artists of color; too often these musicians lived in poverty, even as their records topped the charts. Termination rights are supposed to allow artists to end or renegotiate these licenses and grants, and give them a second chance at controlling their creative destiny.
“There are exceptions. The law contains an exception for works made for hire; naturally, labels and publishers have tried every trick in the book to exploit it. Complicating this is the fact that some courts apply different ‘work for hire’ tests based on when the work was made. In this case, the rights at issue were Markham’s contributions to The Game of Life, a classic American board game created in 1959. In June, the First Circuit used an outdated, notoriously artist-unfriendly test to determine that Markham’s contribution to the game was a ‘work for hire.’ That was wrong, and that outdated test should be left to the dustbin of legal history where it belongs.
“This case has ramifications for artists everywhere. The Supreme Court should hear this case, toss out the old test, and give artists a fighting chance at reclaiming what is rightfully theirs.”
You can view the amicus brief here.
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