1/1930 A.A. Milne entered into an agreement assigning rights to several works to Stephen Slesinger (later SSI) “…for and during the respective period of copyright and of any renewal period thereof to be had under the copyright act..”
1961: SSI assigns right to Disney.
1983: Milne’s heir(s) enter into new agreement with SSI—
Including an acknowledgement that Christopher Robin Milne has termination rights, although Christopher Robin Milne chooses not to exercise that right.
This agreement also purports to be/ expresses a desire to revoke the 1930 and 1961 agreements and to create a new agreement.
The prior agreements are revoked, and on the same page of the document, rights are granted/regranted to SSI.
2002: Clare Milne serves termination notice, citing the 1930/1961 agreements.
The issue becomes, whether the 1983 agreement serves as an extension of the 1930/1961 agreements, or constitutes in and of itself an entirely new agreement.
This distinction is crucial because the 1998 CTEA granted recapture rights to agreements made prior to the 1/1/78 effective date of the 1976 Copyright Act.
The court held that the 1983 agreement, expressing revocation of the prior agreements, constituted a new agreement, and thus the CTEA provisions extending recapture rights to works pre-1/1/78 obviously do not apply.
Nimmer, as co-counsel for Milne, stresses the policy behind these recapture rights, as protective devices for authors, to prevent them from becoming forced or trapped into agreements. Nimmer emphasizes that the author/owner of rights must clearly have a “moment of freedom”, wherein the owner is bound by no agreement. And that Milne never had an opportunity to revoke the assignment of rights when executing the 1983 agreement. Thus without this moment of freedom, the agreement would constitute a new grant prior to termination of old grant, and would be in violation of the statute. Milne argues that this extends to simultaneous termination/re-grant of rights. Milne cites specifically: 17 U.S.C.A. § 304(c)(6)(D) ”A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination. As an exception, however, an agreement for such a further grant may be made between the author ... and the original grantee or such grantee's successor in title, after the notice of termination has been served.... “
The court is unpersuaded by Milnes argument/interpretation of the statutory language, regardless of Nimmer’s vociferous support. The court notes freedom to contract, and the evidence that Christopher obviously acted volitionally—he could have chosen not to extend/re grant rights—he also renegotiated some terms. This was clearly a matter of choice.
Also, Milne argues the agreement is an “agreement to the contrary”—referring to another provision of the CTEA that a "[t]ermination ... may be effected notwithstanding any agreement to the contrary, including any agreement to make a will or to make any future grant."
The court finds that this does not apply.