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Publication Date

2012

Abstract

When Congress overhauled the Copyright Act in 1976, it
created the device of termination of transfers to protect
authors of copyrighted works from unremunerative
transfers. The scheme seemed straightforward, but
technology has created problems the Act's drafters never
could have anticipated. In particular, the application of
termination of transfers to sound recordings in 1976 was
little more than a shadow of uncertainty not worth dealing
with at the time. But that shadow has become a creeping
darkness, and no one seems sure how to clear it.
Now the darkness is here. Next year, artists like Bruce
Springsteen and Bob Dylan will attempt for the first time
to recover the rights in their recordings, and record labels
will not give up without a fight. Who will win is unclear
under the statute, and Congress seems unlikely to clarify
the matter-but the darkness need not remain. The
question whether musical artists can terminate their

transfers is really a question about who, between the
artists and labels, the law should vest with an entitlement
in the future interest in the copyright. Accordingly, this
Note turns to entitlements theory to examine how
termination alters the parties' bargaining positions in
ways that implicate efficiency and copyright's normative
goals. In so doing, it shines new light on the problem and
shows courts and legislators a path through the darkness.

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