I'm on a tour with my new book, the international bestseller Enshittification: catch me next in London, Toronto and San Diego! Full schedule here.
Gary K Wolf is the author of a fantastic 1981 novel called Who Censored Roger Rabbit? which Disney licensed and turned into an equally fantastic 1988 live action/animated hybrid movie called Who Framed Roger Rabbit? But despite the commercial and critical acclaim of the movie, Disney hasn't made any feature-length sequels.
This is a nightmare scenario for a creator: you make a piece of work that turns out to be incredibly popular, but you've licensed it to a kind of absentee landlord who owns the rights but refuses to exercise them. Luckily, the copyright system contains a provision designed to rescue creative workers who fall into this trap: "Termination of Transfer."
"Termination of Transfer" was introduced via the 1976 Copyright Act. It allows creators to unilaterally cancel the copyright licenses they have signed over to others, by waiting 35 years and then filing some paperwork with the US Copyright Office.
Termination is a powerful copyright policy, and unlike most copyright, it solely benefits creative workers and not our bosses. Copyright is a very weak tool for protecting creators' interests, because copyright only gives us something to bargain with, without giving us any bargaining power, which means that copyright becomes something we bargain away.
Think of it this way: for the past 50 years, copyright has only expanded in every direction. Copyright now lasts longer, covers more kinds of works, prohibits more uses without permission, and carries stiffer penalties. The media industry is now larger and more profitable than at any time in history. But at the same time, the amount of money being earned by creative workers has only fallen over this period, both in real terms (how much money an average creative worker brings home) and as a share of the total (what percentage of the revenues from a creator's work the creator gets to keep). How to explain this seeming paradox?
The answer lies in the structure of creative labor markets, which are brutally concentrated. Creative workers bargain with one of five publishers, one of four studios, one of three music labels, one of two app marketplaces, or just one company that controls all the ebooks and audiobooks.
The media industry isn't just a monopoly, in other words – it's also a monopsony, which is to say, a collection of powerful buyers. The middlemen who control access to our audiences have all the power, so when Congress gives creators new copyrights to bargain with, the Big Five (or Four, or Three, or Two, or One) just amend their standard, non-negotiable contract to require creators to sign those new rights over as a condition of doing business.
In other words, giving creative workers more rights without addressing their market power is like giving your bullied kid more lunch money. There isn't an amount of lunch money you can give that kid that will buy them lunch – you're just enriching the bullies. Do this for long enough and you'll make the bullies so rich they can buy off the school principal. Keep it up even longer and the bullies will hire an ad agency to run a global campaign bemoaning the plight of the hungry schoolkids and demanding that they be given more lunch money:
This is an argument that Rebecca Giblin and I develop in our 2022 book Chokepoint Capitalism: How Big Tech and Big Content Captured Creative Labor Markets and How We'll Win Them Back:
Rebecca is a law professor who is, among other things, one of the world's leading experts on Termination of Transfer, who co-authored the definitive study on the use of Termination since the 1976 Copyright Act, and the many ways this has benefited creators at the expense of media companies:
https://pluralistic.net/2021/09/26/take-it-back/
Remember, Termination is one of the only copyright policies that solely benefits creative workers. Under Termination, a media company can force you to sign away your rights in perpetuity, but you can still claim those rights back after 35 years. Termination isn't just something to bargain away, it's a new power to bargain with.
The history of how Termination got into the 1976 Copyright Act is pretty gnarly. The original text of the Termination clause made Termination automatic, after 25 years. That would have meant that every quarter century, every media company would have to go hat in hand to every creative worker whose work was still selling and beg them to sign a new contract. If your original contract stank (say, because you were just starting your career), you could demand back-payment to make up for the shitty deal you'd been forced into, and if your publisher/label/studio wouldn't cough up, you could take your work somewhere else and bargain from a position of strength, because you'd be selling a sure thing – a work that was still commercially viable after 25 years!
Automatic termination would also solve the absentee landlord problem, where a media company was squatting on your rights, keeping your book or album in print (or these days, online), but doing nothing to promote them and refusing to return the rights to you so you could sell them to some who saw the potential in your old works.
Naturally, the media industry hated this, so they watered down Termination. Instead of applying after 25 years, it now applies after 35 years. Instead of being automatic, it now requires requires creators to go through red tape at the Copyright Office.
But that wasn't enough for the media companies. In 1999, an obscure Congressional staffer named Mitch Glazier slipped a rider into the Satellite Home Viewer Improvement Act that ended Termination of Transfer for musicians. Musicians really need Termination, since record deals were and are so unconscionable and one-sided. The bill passed without anyone noticing:
Musicians got really pissed about this, and so did Congress, who'd been hoodwinked by this despicable pismire. Congress actually convened a special session just to delete Glazier's amendment, and Glazier left his government job under a cloud.
But Glazier wasn't unemployed for long. Within three months, he'd been installed as the CEO of the Recording Industry Association of America, a job he has held ever since, where he makes over $1.3 million/year:
I recently got a press release signed by Glazier, supporting Disney and Universal's copyright suit against Midjourney, in which begins, "There is a clear path forward through partnerships":
In other words, Glazier doesn't want these lawsuits to get rid of Midjourney and protect creative workers from the threat of AI – he just wants the AI companies to pay the media companies to make the products that his clients will use to destroy creators' livelihoods. He wants there to be a new copyright that allows creators to decide whether their work can be used to train AI models, and then he wants that right transferred to media companies who will sell to to AI companies in a bid to stop paying artists:
US Copyright has always acknowledged the tension between creators' rights and the rights of publishers, studios, labels and other media companies that buy creators' works. The original US copyright lasted for 14 years, and could be renewed for another 14 years, but only by the creator (not by the publisher). This meant that if a work was still selling after 14 years, the publisher would have to convince the writer to renew the copyright, or the work would go into the public domain.
This was in an era in which writers were typically paid a flat fee for their work, so from a writer's perspective, it didn't matter if the publisher made any money from subsequent sales of their books, or whether the book entered the public domain so that anyone could sell it. The writer made the same amount either way: zero.
Copyright's original 14 year renewal was a way for creative labor markets to look back and address historic injustices. If your publisher underpaid you 14 years ago, you could demand that they make good on their moral obligation to you, and if they refused, you could punish them by putting the work into the public domain.
Termination has been a huge boon to artists of all description from Stephen King to Ann M Martin, creator of The Babysitters' Club. One of my favorite examples is funk legend George Clinton, whose shitweasel manager forged his signature on a contract and stole his royalties for decades (the reason Clinton is still touring isn't merely that he's an unstoppable funk god, but because he's broke). Clinton eventually gave up on suing his ex-manager and instead just filed for Termination of Transfer:
Back to Roger Rabbit. Author Gary K Wolf has successfully filed for Termination of Transfer, meaning he's recovered the rights to Roger Rabbit and the other characters from his novel:
He discusses his plans for a sequel starring Jessica Rabbit in this interview with "I'm Not Bad TV":
https://www.youtube.com/watch?v=L_0lUiplxZk
Writing about the termination for Boing Boing, Ruben Bolling wonders what this means for things like the Roger Rabbit ride at Disneyland, and the ongoing distribution of the film:
It's not clear to me what the answer is but my guess is that Disney will have to offer Wolf enough money that he agrees to keep the film in distribution and the ride running. Which is the point: when you sell your work for film adaptation, no one know if it's going to be a dud or a classic. Termination is copyright's lookback, a way to renegotiate the deal once you've gotten the leverage that comes from success.
If you have a work you signed away the copyright for 35 years or more ago, here is a tool from Creative Commons and the Authors Alliance for terminating the transfer and getting your rights back (disclosure: I am an unpaid member of the Authors Alliance advisory board):
https://rightsback.org/
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
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