Examining the 'Harmless Errors' Provision for Copyright Termination Notices

A termination notice under '304(c) “must include a clear identification of ' title and the name of at least one author of, and the date copyright was originally secured in, each work to which the notice of termination applies; and, if possible and practicable, the original copyright registration number.” 37 C.F.R. '201.10(b)(1)(iii). For '203 terminations, 37 C.F.R. '201.10(b)(2)(iv) asks for “the title of the work and the name of the author or, in the case of a joint work, the authors who executed the grant being terminated; and, if possible and practicable, the original copyright registration number.”

In Siegel v. Warner Bros. Entertainment Inc., the wife and daughter of Superman co-creator Jerry Siegel had sent termination notices to the Warner Bros. parties regarding thousands of Superman works published through 1997. For Superman comic strips published in the Milwaukee Journal newspaper in January 1939, the Siegel heirs had sent termination notices stating that in addition to the works identified per '201.10(b)(1)(iii), termination applied to “each and every work (in any medium whatsoever, whenever created) that includes or embodies any character, story element, or indicia reasonably associated with SUPERMAN or the SUPERMAN stories, ' the planet Krypton, [or] Kryptonite '. Every reasonable effort has been made to find and list herein every such SUPERMAN-related work ever created. Nonetheless, if any such work has been omitted, such omission is unintentional and involuntary, and this Notice also applies to each and every such omitted work.”

But '201.10(3) “requires a complete and unambiguous statement of facts in the notice itself, without incorporation by reference of information in other documents or records.” Judge Larson noted of the Siegel heirs “catch-all” clause cited in the paragraph above: “No one disputes that such information is insufficient to meet the regulatory command to provide a 'complete and unambiguous statement.'” Thus, Judge Larson explained, the court had to consider “whether, under these circumstances, this non-compliance with the regulatory requirements was nonetheless harmless so as not to affect the validity of plaintiffs' termination notice from applying to those first two weeks' worth [in January 1939] of Superman newspaper strips.”

'A Safety Valve'

In August 2009, Larson decided “that, given the nature of the property at issue (an iconic comic book superhero character exploited continuously in every form of media imaginable for the past [70] years), the amount of effort Siegel's heirs took in carefully cataloging and identifying the vast universe of works potentially at issue, the minuscule number of works that were not so specifically identified in the notice, and the presence of the catch-all clause itself, the error committed in this particular case, under these particular circumstances, was indeed harmless.”

Judge Larson expounded on this in greater detail in a lengthy October 2009 decision in which he denied Warner Bros.' motion for reconsideration on the matter. In considering “harmless errors” in light of '304(c) and the federal regulations developed by the Register of Copyright in the 1970s, Judge Larson acknowledged: “Recognizing the intricacies of the formalities being established and the potential for gaps in the terminating parties' (especially in the case of an author's heirs) knowledge of the information sought by those formalities due to the long passage of time that may have occurred since the grant and works in question were executed and published, the Register also placed a safety valve that could operate to relieve terminating parties from mistakes or other traps for the unwary that would be created by requiring strict conformance to the regulation's requirements.”

Part Two of this article further discusses the Registers of Copyrights' regulations and delves into the Siegel heirs and Warner Bros. Entertainment arguments, as well as related court rulings.

Record labels fear the ticking clock that will allow recording artists to terminate post-1977 sound-recording assignments beginning in 2013. That's because '203 of the U.S. Copyright Act provides for a grantor's recapture of assigned copyrights during a five-year period beginning 35 years after publication or 40 years from the assigning of a work. The termination right applies beyond sound-recording copyrights. Pre-1978 copyright assignments may be recaptured under 17 U.S.C. '304(c) during a five-year period that begins 56 years after the copyright in an assigned work was initially procured.

Provision 'Little Utilized'

The termination notice requirements for ”304(c) and 203 are set forth in the Code of Federal Regulations at 37 C.F.R. '201.10. But despite the brouhaha over the looming 2013 sound-recording termination trigger, U.S. District Judge Stephen G. Larson recently noted in a case involving '304(c) that up to now “the termination provisions in the 1976 Copyright Act have been little utilized by authors or their heirs and, consequently, little explored by the courts.” Larson's comment came from a case in the Central District of California that has concerned, among other things, termination notices sent by heirs of a co-creator of the Superman character and is, according to Judge Larson, “the first time the harmless errors rule [of 37 C.F.R. '201.10(e)] has been actually interpreted by any court in a context even approaching that found in the current case.” Siegel v. Warner Bros. Entertainment Inc., CV-04-8400-SGL. As a result, Larson's ruling on the issue may well offer what little judicial guidance exists as to what may constitute “harmless errors” in drafting copyright termination notices, especially regarding assignments of multiple copyrights.

A termination notice under '304(c) “must include a clear identification of ' title and the name of at least one author of, and the date copyright was originally secured in, each work to which the notice of termination applies; and, if possible and practicable, the original copyright registration number.” 37 C.F.R. '201.10(b)(1)(iii). For '203 terminations, 37 C.F.R. '201.10(b)(2)(iv) asks for “the title of the work and the name of the author or, in the case of a joint work, the authors who executed the grant being terminated; and, if possible and practicable, the original copyright registration number.”

In Siegel v. Warner Bros. Entertainment Inc., the wife and daughter of Superman co-creator Jerry Siegel had sent termination notices to the Warner Bros. parties regarding thousands of Superman works published through 1997. For Superman comic strips published in the Milwaukee Journal newspaper in January 1939, the Siegel heirs had sent termination notices stating that in addition to the works identified per '201.10(b)(1)(iii), termination applied to “each and every work (in any medium whatsoever, whenever created) that includes or embodies any character, story element, or indicia reasonably associated with SUPERMAN or the SUPERMAN stories, ' the planet Krypton, [or] Kryptonite '. Every reasonable effort has been made to find and list herein every such SUPERMAN-related work ever created. Nonetheless, if any such work has been omitted, such omission is unintentional and involuntary, and this Notice also applies to each and every such omitted work.”

But '201.10(3) “requires a complete and unambiguous statement of facts in the notice itself, without incorporation by reference of information in other documents or records.” Judge Larson noted of the Siegel heirs “catch-all” clause cited in the paragraph above: “No one disputes that such information is insufficient to meet the regulatory command to provide a 'complete and unambiguous statement.'” Thus, Judge Larson explained, the court had to consider “whether, under these circumstances, this non-compliance with the regulatory requirements was nonetheless harmless so as not to affect the validity of plaintiffs' termination notice from applying to those first two weeks' worth [in January 1939] of Superman newspaper strips.”

'A Safety Valve'

In August 2009, Larson decided “that, given the nature of the property at issue (an iconic comic book superhero character exploited continuously in every form of media imaginable for the past [70] years), the amount of effort Siegel's heirs took in carefully cataloging and identifying the vast universe of works potentially at issue, the minuscule number of works that were not so specifically identified in the notice, and the presence of the catch-all clause itself, the error committed in this particular case, under these particular circumstances, was indeed harmless.”

Judge Larson expounded on this in greater detail in a lengthy October 2009 decision in which he denied Warner Bros.' motion for reconsideration on the matter. In considering “harmless errors” in light of '304(c) and the federal regulations developed by the Register of Copyright in the 1970s, Judge Larson acknowledged: “Recognizing the intricacies of the formalities being established and the potential for gaps in the terminating parties' (especially in the case of an author's heirs) knowledge of the information sought by those formalities due to the long passage of time that may have occurred since the grant and works in question were executed and published, the Register also placed a safety valve that could operate to relieve terminating parties from mistakes or other traps for the unwary that would be created by requiring strict conformance to the regulation's requirements.”

Part Two of this article further discusses the Registers of Copyrights' regulations and delves into the Siegel heirs and Warner Bros. Entertainment arguments, as well as related court rulings.