Abstract

Copyright law is unusual. Unlike virtually every other area of U.S. law, the Copyright Act allows people to change their minds and unilaterally cancel otherwise valid contracts. Thirty-five years after transferring or licensing their copyrights to others, authors—or their heirs—can terminate the grant for any reason, and the copyright reverts to its original owners. These termination of transfer provisions aren’t just unusual as a matter of law generally; they are also atypical for copyright law. While most of copyright law is justified on the grounds that it improves social welfare, these provisions are explicitly based on redistributive concerns—giving poorly situated authors a second bite at the apple. Unsurprisingly, copyright’s termination of transfer provisions have generated considerable scholarly attention, most of which is highly critical.

But the criticisms of copyright’s reversion rights are largely grounded on empirically testable claims about how they operate—who uses them and for what purposes? This Article begins to answer those empirical questions through the development of a novel dataset of every termination of transfer notice from 1978, when the law took effect, until 2021. Our dataset, which includes over 150,000 terminations, suggests that these laws likely aren’t achieving their redistributive goals. Only a small percentage of eligible transfers are terminated, and most terminations involve highly successful authors who are made even wealthier.

After addressing the descriptive and normative questions raised by prior scholars, we offer a range of potential solutions that Congress could adopt, each with its own costs and benefits. Ideally, revisions to termination provisions would not only address Congress’s redistributive concerns but also prevent publishers, studios, and platforms from suppressing content that they license but do not exploit. Our preferred solution would impose a costly screen on these firms to discourage socially harmful content suppression and return copyrights to authors who may more effectively redistribute their own works.

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