Darling — Volume 63, Issue 1

The 1976 Copyright Act introduced author termination rights allowing copyright creators to reclaim works assigned to publishers after thirty-five years, intending to protect authors from disadvantageous long-term agreements. However, Darling demonstrates that termination rights create paradoxical economic effects unlikely to advance copyright's utilitarian justification. The framework creates a lottery-like outcome rewarding authors of commercially successful works while reducing individual gains for the majority. First, termination rights generate price uncertainty affecting risk allocation—publishers discount upfront payments when facing termination risk, reducing author compensation overall. Second, economic analysis reveals that the length of copyright terms and extended periods before termination become effective may mitigate positive incentive effects. Third, publisher incentives may suffer as uncertain future ownership hinders long-term investment in author works. Darling argues that author termination rights, as currently structured in U.S. law, are likely undesirable within copyright's utilitarian theory because they reward a small subset of successful authors while reducing individual gains and creative incentives for most authors. The article challenges distributive-oriented justifications for the law and demonstrates that termination rights may hinder socially desirable investments in creative markets.

Topics: Intellectual Property

Keywords: copyright termination rights · author reclamation · 1976 Copyright Act · economic analysis · copyright incentives · creator compensation