By Jeff Trexler
Today Bleeding Cool noted Section 203 of the Copyright Act of 1976, which provides that in 2013 authors may terminate a copyright transfer or license for work created on or after January 1, 1978. [link: ]
In his post, Rich Johnston goes on to wonder whether Alan Moore could eventually terminate the Watchmen transfer from 1985. Commenters argue that this is absurd, but depending on the contract Moore could actually re-claim his share of the property.
Like the Siegel heirs, creators of post-1977 properties have a legal basis for taking back the copyrights in their original properties. As with the rights of earlier creators, Section 203 termination rights do not apply to works for hire.
Without a copy of Moore’s Watchmen contract it’s not possible to assess the situation with absolute certainty, but there are indications that the contract might not classify Watchmen as work-for-hire. The biggest tell–the alleged provision that the rights will revert to Moore & artist Dave Gibbons after Watchmen goes out of print.
A finding that Moore did indeed transfer the Watchmen copyright to DC in 1985 would appear to give him a clear right to take it back as of 2020, but there are a few additional things we need to consider.
First, if the 1985 contract did indeed treat Moore and Gibbons as co-creators, Moore would likely not be able to re-claim all of the copyright for himself. Just as Siegel and Shuster each had 50% of the original Superman copyright, Moore and Gibbons could be co-owners of Watchmen.
In short, Moore could not on his own keep Watchmen out of public circulation. As co-owner of a joint work, Gibbons would also have a legal right to sell or license the property without having to get Moore’s permission, provided that he accounts for Moore’s share of the profits.
Next, it should be noted that the contract could also give DC an ongoing share of the property. Let’s suppose for the sake of argument that the property was established to be a derivative work of the Charlton characters owned by DC. Moore and Gibbons would own their original material, but DC would also retain ownership of the portion derived from the Charlton characters.
Finally, we need to remember that Section 203 places significant constraints on a co-owner’s termination rights. For example, it can be argued that if the transfer or license was made by two or more authors, the termination may be made only with the agreement of a majority of the co-owners.
In other words, if Moore and Gibbons are equal co-owners and, say, DC makes Gibbons an offer he can’t refuse, Moore arguably would not be able to terminate the transfer by himself. Still, there is also an incentive for Gibbons to agree to pursue termination–he could maintain public goodwill and any relationship with Moore without losing his right to enter into a side-deal with DC or another company.
Of course, all of this would be moot were Moore and Gibbons to miss their window for filing their termination claim. Inasmuch as there’s a possibility they could have had a right to file such a claim as early as 2010, one would expect that their respective attorneys have at least explored their options.
For more on Section 203–especially if you’re someone who created a comics-related property after 1977–the Author’s Guild has a useful guide.