The International Intellectual Property Institute’s (IIPI) Bruce Lehman and Ralph Oman teamed up again to submit another amicus brief to the Supreme Court of the United States to defend the rights of visual artists. The brief urges the Supreme Court to reconsider the Ninth Circuit’s decision in Peary v. DC Comics.
In a one-page order, the Court of Appeals held that the heir’s of the now deceased Joe Shuster, coauthor of the indomitable Superman, could not terminate the assignment of copyright to DC Comics. The court’s refusal to give effect to the petitioner’s termination rights was based entirely on the theory that a termination right can be contracted away. However, that theory is in direct contradiction of Congressional intent and the clear terms of the Copyright Act of 1976’s explicit provision to the contrary, which states that the termination right is valid “notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.”
Congress enacted this provision with the specific intent of safeguarding vulnerable authors. At the direction of Congress, the Copyright office conducted more than two decades of intensive study on the topic. In a 1961 report, the Office concluded that an inalienable right of termination was essential to protect authors. In 1976, the revised Copyright Act codified the Copyright office’s recommendations.
The brief argues that the 9th Circuit’s decision effectively guts the ability of tens of thousands of artists, authors and heirs, represented by the amici, to exercise the termination rights that Congress explicitly offered them. Instead, it erroneously supplanted federal copyright law with the common law of contracts under which “any agreement to the contrary,” apparently means “some agreements to the contrary” dependent on the court’s particular policy views. In doing so, it harmed the ability of authors in the 9th Circuit (where the bulk of creators reside) to reclaim their rights from publishers with vastly superior bargaining power. As kryptonite critically weakens Superman, the Ninth Circuit’s decision critically weakens copyright law.
In explaining the decision to intervene on behalf of the Peary family, IIPI Chairman Lehman stated: “I founded IIPI to help ensure a strong global system of intellectual property and to help build the capacity of emerging innovation economies to fully participate in the global, knowledge-based economy. When the most vulnerable members of the creative community have their rights trampled on, it undermines the integrity of the entire system, to the disadvantage of all stakeholders. I am pleased to be in a position to come to the aid of not just the Peary family, but other creators and heirs in their situation. I hope that the Court will reexamine this contaminating case, and do what is just and right for our country’s intellectual property system.”
You can read the Peary v. DC Comics brief by clicking here.
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