UNITED STATES COPYRIGHT OFFICE ANALYSIS OF GAP GRANTS
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executed by will. Subsection 203(b) excepts existing derivative works, allowing for their continued
exploitation under the terms of a grant following its termination. 17 U.S.C. § 203(b) (1). Because these
carve-outs are expressed clearly, it is reasonable to conclude that if Congress had wanted to exclude Gap
Grants, it would have done so unambiguously. See, e.g., Niels Schaumann, William Mitchell College of
Law, St. Paul, MN (Comment 11 at page 4) (“Congress knew how to exclude categories of works from
termination .…It would be surprising, to say the least, if at the same time Congress expressly excluded
works for hire, it also ‘intended’ to exclude, sub silentio, all works transferred before, but created after,
the effective date of the new statute.”); Kenneth Freundlich, Freundlich Law, and Neil Netanel, UCLA
School of Law (Comment 13 at page 5) (“Given Congress’ expressed intent to favor authors and the hard
fought compromise reflected in the termination provisions of the 1976 Act, it could not have been
Congress’ intent to countenance exceptions to the ‘inalienable authorial right to revoke a copyright
transfer’ other than those expressly enumerated in the Act.”).
3. Executed v. Signed
No one responding to the notice of public inquiry argued specifically that Congress intended to
exclude Gap Grants. The primary question from RIAA was really on a different point—whether
Congress in fact meant “signed” when it used the word “executed” in the termination provisions. There is
no definition in the statute and no legislative history on point. However, in the context of section 203, the
plain meaning suggests that “executed” means “concluded transaction,” not “signed.” The provision does
not work otherwise, because nonexclusive licenses do not require written contracts or grants.
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Professor Ginsburg elaborated on this point in her comment, stating that “in U.S. contract law, an
‘executed’ agreement is ‘one in which nothing remains to be done by either party, and where the
transaction is completed at the moment that the agreement is made,’ while ‘an executory contract is a
contract to do some future act.” See also Niels Schaumann, William Mitchell College of Law, St. Paul,
MN (Comment 11 at page 4) (“Section 203…should be read to refer to the date on which the transfer…is
performed, meaning that there is both a transfer and a transferred work. In other words, the word
‘executed’ should be read to exclude transfers that are merely ‘executory.’”).
RIAA urged caution on this point, however, in order “to evaluate evidence that, at least in the
case of a written grant, Congress may have intended the term to mean signed.” (Reply Comment 9 at
page 3.)
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This is an interesting supposition, but the Copyright Office thinks it is ultimately unlikely and
difficult to support. It would mean that Congress intended one four-word phrase (“executed by the
author”) in the first sentence of section 203 to have two distinct meanings, depending on whether the
grant at issue was concluded orally or in writing.
B. Decisions at Common Law
Although the plain meaning of the statute is sufficient to construe a termination right for Gap
Grants, the longstanding principles and decisions of common law copyright lend further support for the
analysis of the Office and the position of most commenters, particularly for the premise that one cannot
sell, assign or otherwise transfer what one does not yet own. Commenters Freundlich and Netanel
highlight this in the context of copyright law, quoting the 1915 case, T.B. Harms & Francis, Day &
Hunter v. Stern, 229 F. 42, 49 (2d Cir. 1915), in which the Second Circuit considered the legal effect of a
contract that transferred rights to compositions the composer “might write” during a period of five years.
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See Korman v. HBC Florida, 182 F.2d 1291,1294 11th Cir. 1999) (“Executed” means “carried into full effect,”
[and] nothing in section 203 or elsewhere in the Copyright Act requires that nonexclusive licenses be in writing
before they can be carried into full effect.”).
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But see id. (stating that the existence of a writing requirement in section 204 (to effect transfers of copyright)
shows that “Congress knows how to impose such a requirement when it wants to do so. Congress did not do so in
section 203.”).