In 1984, acclaimed composer Jay Livingston assigned his interests in numerous musical compositions, including the classics “Silver Bells” and “Que Sera, Sera” to a publishing company called Jay Livingston Music (“JLM”). In 1985, Jay created a family trust, transferring to it his royalty rights flowing from the JLM transfer, making Travilyn (his daughter), Tammy (his granddaughter), and other family members beneficiaries. After Jay’s 2001 death, a California probate court officially declared that the family trust held no copyright interests, as all belonged to JLM. Both Travilyn’s and Tammy’s attorneys approved that order.
Decades later, in 2015, Travilyn purported to exercise her statutory right to terminate the 1984 assignments to JLM and reclaim the copyrights for herself as Jay’s heir under § 203 of the Copyright Act, which allows copyright owners and their heirs to terminate copyright transfers (assignments and licenses) after 35 years given adequate notice is provided. Travilyn’s daughter (Tammy) filed a declaratory judgment action challenging the validity of the termination. Tammy claimed the copyrights should have reverted to the family trust in 2011, prior to her mother’s terminations and thus the termination notice was ineffective.
The U.S. District Court for the Middle District of Tennessee dismissed Tammy’s complaint under Rule 12(b)(6). Judge Readler, writing for the Sixth Circuit Court of Appeals affirmed, explaining in relevant part that Tammy’s claims were barred by the 2003 probate order (which effectively held the trust held no reversionary rights) and, as such, Travilyn’s termination notice was effective.
More interestingly, however, Judge Readler wrote separately to raise a deeper statutory issue: whether the Copyright Act (specifically § 203) provides the right to challenge termination notices through standalone declaratory judgment suits. Judge Readler emphasized that § 203 does not explicitly authorize private suits, and under Supreme Court precedent such as Alexander v. Sandoval, 532 U.S. 275 (2001), courts should not infer private rights of action unless Congress clearly intended them. He contrasted this with the Ninth Circuit’s approach in Ray Charles Foundation v. Robinson, 795 F.3d 1109 (9th Cir. 2015), where the court acknowledged that § 203 lacked an express cause of action but nonetheless found an implied private right to bring declaratory suits challenging termination notices. Most courts that have addressed § 203 litigation assume, without extensive analysis, that declaratory or injunctive suits are permissible.
To be sure, Judge Readler did not reach a definitive holding on the issue in his concurrence, as the litigants did not brief it, but he specifically flagged the issue for a future panel to consider. In effect, the concurrence opened the door, and even issued an invitation, for future courts to reject implied causes of action under § 203. If this interpretation of the statute were to prevail, it would force parties to risk copyright infringement liability and the cost of litigating such an action in order to resolve the termination issue. The irony of this decision is particularly apt. A case involving the composer of “Que Sera. Sera,” a song about accepting an uncertain future, has created legal uncertainty about the future of copyright termination rights. Indeed, should Judge Readler’s invitation be accepted, it would create a circuit split over whether parties can bring preemptive or declaratory challenges to copyright terminations.
