Case 14-182, Document 85, 10/22/2015, 1625515, Page1 of 63
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`14-0182-cv
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`
`
`United States Court of Appeals
`for the
`Second Circuit
` 
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`GLORIA COOTS BALDWIN, PATRICIA BERGDAHL,
` CHRISTINE PALMITESSA, Individuals,
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`Plaintiffs-Appellants,
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`– v. –
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`EMI FEIST CATALOG, INC., a New York corporation,
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`Defendant-Appellee.
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`___________________________
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`PETITION FOR PANEL REHEARING
`OR REHEARING EN BANC
`
`DONALD S. ZAKARIN
`FRANK P. SCIBILIA
`ROSS M. BAGLEY
`PRYOR CASHMAN LLP
`Attorneys for Defendant-Appellee
`7 Times Square
`New York, New York 10036
`(212) 421-4100
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`

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`Case 14-182, Document 85, 10/22/2015, 1625515, Page2 of 63
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES .................................................................................... ii
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`RULE 35(b)(1) STATEMENT .................................................................................. 1
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`RULE 40(a)(2) STATEMENT .................................................................................. 3
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`THE DECISION & RELEVANT FACTS ................................................................ 5
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`ARGUMENT ............................................................................................................. 9
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`I. The Decision Incorrectly Concluded That A Grant
` Of The “Extended Renewal Term” Includes The
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`Remainder Of The 1909 Act’s 28-Year Renewal Term ................................ 9
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`II. The Decision Conflicts With Mewborn ....................................................... 12
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`III. The Decision’s Interpretation of “Publication” Under Section
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`203 Is Contrary To The Language And Policy Of The ‘76 Act .................. 13
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`CONCLUSION ........................................................................................................ 15
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`TABLE OF AUTHORITIES
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`PAGE(s)
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`CASES
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`Classic Media, Inc. v. Mewborn,
`532 F.3d 978 (9th Cir. 2008) ......................................................................... 3, 12
`Conn. Nat’l Bank v. Germain,
`503 U.S. 249 (1992) ........................................................................................... 13
`Mills Music, Inc. v. Snyder,
`469 U.S. 153 (1985) ..................................................................................... 10, 14
`Milne v. Stephen Slesinger, Inc.,
`430 F.3d 1036 (9th Cir. 2005) ............................................................................ 12
`Tasini v. N.Y. Times Co.,
`206 F.3d 161 (2d Cir. 1999), aff’d, 533 U.S. 483 (2001) .................................. 13
`Woods v. Bourne Co.,
`60 F.3d 978 (2d Cir. 1995) ................................................................................. 11
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`
`STATUTES
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`FRAP 35 ............................................................................................................... 1
` 40 ............................................................................................................... 1
`17 U.S.C. § 101 ........................................................................................................ 13
`§ 104 ........................................................................................................ 13
`§ 104A ..................................................................................................... 13
`§ 203 .................................................................................................passim
`§ 203(a) ..................................................................................................... 1
`§ 203(a)(3) ........................................................................................passim
`§ 203(a)(4)(A) ........................................................................................... 6
`§ 203(b)(4) ....................................................................................... 2, 6, 15
`§ 304 .................................................................................................passim
`§ 304(a) ..................................................................................................... 6
`§ 304(b) ............................................................................................... 2, 10
`§ 304(c) ............................................................................................passim
`§ 304 (c)(3) ...................................................................................... 2, 5, 10
`§ 304(c)(6)(A) ......................................................................................... 14
`§ 304(c)(6)(4)(A) ....................................................................................... 6
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`ii
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`§ 304(c)(6)(D) ........................................................................... 2, 6, 14, 15
`STATUTES
`PAGE(s)
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`§ 304(c)(6)(F) .................................................................................. 6, 8, 10
`§ 304(d) ........................................................................................... 6, 7, 15
`§ 401 ........................................................................................................ 13
`§ 408 ........................................................................................................ 13
`§ 409 ........................................................................................................ 13
`§ 410 ........................................................................................................ 13
`§ 412 ........................................................................................................ 13
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`LEGISLATIVE HISTORY
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`H.R. Rep. No. 94-1476 at 140 (1976) ...................................................................... 11
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`iii
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`Pursuant to FRAP 35 and 40, defendant/appellee EMI Feist Catalog, Inc.
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`(“EMI”) respectfully seeks a panel rehearing or rehearing en banc of the decision
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`of this Court (Pooler, Livingston, Droney, C.J.) entered on October 8, 2015 (the
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`“Decision”) in this appeal (the “Appeal”) concerning ownership of the copyright in
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`the musical composition Santa Claus is Comin’ to Town (the “Song”).
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`RULE 35(b)(1) STATEMENT
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`The Decision and this Appeal raise questions of exceptional importance
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`affecting far more than ownership of one song. The Decision is premised on
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`interpretations of §§ 304 and 203 of the U.S. Copyright Act that are contrary to
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`precedent, rewriting the statute. The Decision also upends New York contract law,
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`converting a “plausible” interpretation of a contract into one the Panel labels “clear
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`and unambiguous,” disregarding provisions of the contract inconsistent with such
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`interpretation as well as all contemporaneous extrinsic evidence confirming that
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`the parties’ understanding of the contract was exactly contrary to such
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`interpretation.
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`In interpreting the meaning of publication “under the grant” in § 203(a)(3),
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`the Panel excised the phrase “under the grant,” rewriting it to say “first publication
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`under any grant.” The Panel’s interpretation has far-reaching consequences,
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`shortening, by up to five years, the duration of pre-existing grants already paid for
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`by a publisher or future grants designed by Congress to be the lesser of 40 years
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`from the date of the grant or 35 years from the date of publication “under the
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`grant.” To avoid the durational loss resulting from the Decision, authors and
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`publishers would have to defer further grants until just prior to the effective date of
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`termination, thereby nullifying the existing publisher exception to the prohibition
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`of “agreements to the contrary” Congress included in §§ 304(c)(6)(D) and
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`203(b)(4), to permit authors to realize the value of their works without waiting
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`until the effective date of termination and affording publishers who created such
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`value the opportunity to retain their rights.
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`The Decision also misconstrued the meaning of the phrase “extended
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`renewal term” used in § 304(c), finding that it was “plausible” that the “extended
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`renewal term” could mean both the 1909 Act’s 28 year renewal term and the 19
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`year extension added by § 304(b). (P.D.31-32.) The Decision ignored that
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`Congress referred to the 19 year “extended renewal term” as a “new property
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`right” that can be recaptured by an author upon expiration of the 28 year renewal
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`term of the 1909 Act (upon compliance with the termination requirements of §
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`304).
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`The Decision also disregarded that this Court has recognized the “extended
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`renewal term” as the discrete 19 year period commencing at the end of the 1909
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`Act’s 28 year renewal term. Indeed, because termination cannot be effected under
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`§ 304(c)(3) until 56 years after copyright was originally secured, at the end of the
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`2
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`1909 Act’s 28 year renewal term, § 304(c)’s reference to the “extended renewal
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`term” can only be the additional 19 year period.
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`As a result, the Decision mistakenly concluded that when granting the
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`“extended renewal term” rights to the current copyright owner, the “extended
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`renewal term” means the entire 47 year renewal term, including the 28 year
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`renewal term already owned by the grantee. By conflating the renewal term and
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`extended renewal term the Decision concluded that the new grant automatically
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`and immediately terminates and replaces the prior grant, contrary to the Ninth
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`Circuit’s decision in Classic Media, Inc. v. Mewborn, 532 F.3d 978, 986 (9th Cir.
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`2008).
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`The Decision impacts the duration of tens of thousands of further grants
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`under §§ 304 and 203. It conflicts with prior law in this Circuit and in the Ninth
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`Circuit and will inevitably result in a flood of litigation. If the termination sections
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`of the Copyright Act are to be so dramatically affected, it should only be after
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`consideration by the full Court.
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`RULE 40(a)(2) STATEMENT
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`Conflating the discrete renewal and extended renewal terms, the Panel
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`erroneously concluded that the 1981 Agreement terminated and replaced a prior
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`1951 Agreement upon execution, reversing the District Court’s finding that the
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`1981 Agreement granted the extended renewal term rights commencing in 1990 –
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`3
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`on the anticipated effective date of the termination of the 1951 Agreement pursuant
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`to a previously served termination notice.
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`Exclusively focusing on the first portion of Paragraph 1 of the 1981
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`Agreement, the Decision ignored provisions expressly stating that EMI’s
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`ownership of the 1909 Act’s 28 year renewal term under the 1951 Agreement
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`remained in full force and effect and that EMI was being granted only the
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`additional 19 year period provided by the “extended renewal term” of § 304(c).
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`The Decision converted a “plausible” interpretation of the 1981 Agreement into a
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`finding that the 1981 Agreement was clear and unambiguous, enabling rejection of
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`contemporaneous extrinsic evidence that conclusively established that even the
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`Appellants’ understanding of the 1981 Agreement was the exact opposite of the
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`Panel’s interpretation.
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`Interpreting publication “under the grant” in Section 203(a)(3) to mean first
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`publication under any grant, the Panel concluded that because the Song had been
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`published under a 1934 grant, termination was effective 35 years from the date of
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`the grant (2016), rather than 35 years from “the date of publication of the work
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`under the grant or at the end of forty years from the date of execution of the grant,
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`whichever term ends earlier” (2021).
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`4
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`THE DECISION & RELEVANT FACTS
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`J. Fred Coots coauthored the Song and conveyed the worldwide copyright
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`ownership to EMI in 1934. (A.40-41, 43-44; SPA.2.)1 The 1909 U.S. Copyright
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`Act provided an initial 28 year term, plus a 28 year “renewal term” commencing in
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`1962. (A.184 ¶ 6; SPA.2-3.) In 1951, Coots granted EMI “all renewals and
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`extensions” of all copyrights in the Song “everywhere and forever,” “throughout
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`the world” (the “1951 Agreement”). (A.46-49.) In 1962, EMI renewed its
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`copyright and continued its ownership of the Song through the renewal term.
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`(A.51-52; SPA.3.)
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`The 1976 Copyright Act (“76 Act”) replaced the 1909 Act on January 1,
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`1978. It increased US copyright protection for an extended renewal term of 19
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`years for published works in either their initial or renewal term prior to January 1,
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`1978. Prior to the 76 Act, the renewal term could only be the 28 year renewal term
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`of the 1909 Act. (A.184 ¶ 9; SPA.11.) Authors and heirs could recapture the 19
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`year extended renewal term under § 304(c)(3) by terminating existing grants
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`during a five year period “beginning at the end of fifty-six years from the date
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`copyright was originally secured (i.e. at the end of the 1909 Act’s 28 year renewal
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`term), or January 1, 1978, whichever is later.
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`1 All references to the Joint Appendix will be preceded by “A.__.” All references
`to the Special Appendix will be preceded by “SPA.__.” All references to the
`Decision will be preceded by “P.D.__.”
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`5
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`Section 304(c)(6)(4)(A) requires both the service of a notice of termination
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`and recordation in the Copyright Office before the effective date in the notice “as a
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`condition to its taking effect.” “Unless and until termination is effected under this
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`subsection, the grant, if it does not provide otherwise, continues in effect for the
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`remainder of the extended renewal term.” Id. § 304(c)(6)(F) (emphasis supplied).
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`Section 304(c)(6)(D) provides that “A further grant, or agreement to make a
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`further grant, of any right covered by a terminated grant is valid only if it is made
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`after the effective date of the termination. As an exception, however, an agreement
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`for such a further grant may be made between the author [or his heirs]…, and the
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`original grantee…, after the notice of termination has been served….”
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`Section 203(a)(3) provides a similar termination right for grants executed by
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`an author after January 1, 1978. Termination is exercised by serving the notice any
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`time between two and ten years before the termination date. § 203(a)(4)(A).
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`Section 203 also contains its own existing-grantee exception to the prohibition on
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`agreements to the contrary. § 203(b)(4).
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`In 1998, Congress passed the Copyright Term Extension Act (“CTEA”),
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`lengthening the extended renewal term to 39 years. (A.185 ¶ 12; SPA.11; 17 U.S.C.
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`§ 304(a).) Prior to CTEA, there was no mathematical possibility that a § 304 work
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`could be subject to termination under § 203. (P.D.39.) CTEA provided a further
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`termination right for works in § 304(d) but barred a second termination where the
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`right had already been exercised under § 304(c). (A.185 ¶ 12; § 304(d)) Despite §
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`304(d)’s preclusion of a second termination right, the Decision assumes that § 203
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`provides a second termination right after exercise of such right under § 304(c) but
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`fails to explain why Congress would deny a second termination right in § 304(d)
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`while affording it under § 203. (P.D.34.)
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`On September 24, 1981, Coots sent EMI a “Notice of Termination Covering
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`Extended Renewal Term (Under Section 304(c))” (the “1981 Notice”) (A.54; SPA.
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`3, 20-21). Paragraph 3(a) of the 1981 Agreement expressly provides that the 1981
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`Notice was intended to terminate the 1951 Agreement on “the earliest possible date
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`under the Copyright Act of 1976,” which was October 23, 1990. (A.60.) On
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`December 15, 1981, Coots and EMI entered into the 1981 Agreement granting
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`EMI the Song’s extended renewal term in exchange for a payment of $100,000 and
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`the payment of royalties only during the extended renewal term. (A.59-67 ¶ 4.)
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`The 1981 Agreement expressly stated that the period of copyright had been
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`extended from 56 to 75 years and that it was intended to “insure” that EMI would
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`continue to own the US rights for the “balance of the period of copyright” – the
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`additional 19 year period commencing October 23, 1990. (A.59-60, 63-64.) It
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`expressly acknowledged that EMI already owned the 1909 Act’s 28 year renewal
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`term pursuant to the 1951 Agreement and that Coots was granting the 19 year
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`extended renewal term rights that would revert to him in 1990 assuming
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`termination of the 1951 Agreement was effected in compliance with the
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`requirements of § 304(c). (A.60-61 ¶ 3.) The 1981 Agreement did not provide for
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`the payment of any royalties until the commencement of the extended renewal
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`term in 1990. (A.62 ¶ 4(b).) Under the 1981 Agreement the only rights Coots
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`owned and was granting (or could grant) was the 19 year extended renewal term
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`rights from 1990 to 2009.
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`In concluding that the 1981 Agreement unambiguously, but only impliedly,
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`terminated and replaced the 1951 Agreement, the Decision isolated the opening
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`portion of Paragraph 1 of the 1981 Agreement, ignoring the totality of that
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`paragraph and other provisions of the Agreement. (P.D.24-25.)2 Disregarding the
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`first and second “whereas clauses” confirming EMI’s ownership of the renewal
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`term, based largely on its conflation of the 19 year “extended renewal term” and
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`the 1909 Act’s 28 year renewal term, the Decision found that Coots recaptured the
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`9 years remaining of the renewal term and re-granted EMI that same 9 term plus
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`the 19 year extended renewal term rights from 1990 to 2009. (P.D.27.)
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`2 The Decision’s “belt and suspenders” description (P.D.30) fails to explain why
`the 1981 Agreement required effecting termination under § 304 in 1990 if it
`immediately terminated the 1951 Agreement. It ignores the “bedrock principle
`that a contract should be read to give effect to all its provisions,” (P.D.25 (citations
`and quotations omitted)) and the plain language of 17 U.S.C. § 304(c)(6)(F) that if
`a grant is not terminated by recordation of the notice, the grant continues for the
`“remainder of the extended renewal term.”
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`While acknowledging that “the record is certainly replete with indications
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`that the parties believed EMI would be receiving only nineteen years’ worth of
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`rights…” (P.D.32), the Decision then ignores the consistent contemporaneous
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`documentary evidence and the testimony of Appellants’ own witnesses confirming
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`that the 1981 Agreement did not displace the 1951 Agreement but was only
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`granting the 19 year extended renewal term commencing in 1990. (A.227, 232,
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`283, 246, 277-278, 416-417.)
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`Assuming that § 203 affords a second termination right for § 304 works, in
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`rewriting § 203(a)(3) to mean “first publication under any grant” the Panel has
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`divested original publishers, authors and heirs of the benefit of the exception from
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`the “agreement to the contrary” provisions of §§ 304 and 203.
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`ARGUMENT
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`The Decision Incorrectly Concluded That A Grant
`Of The “Extended Renewal Term” Includes The
`Remainder Of The 1909 Act’s 28-Year Renewal Term
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`The Decision conflates the original 28 year renewal term of copyright and
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`I.
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`the additional 19 year period provided in § 304(c) to form a 47-year period which
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`is interchangeably referred to as the “renewal term” and the “extended renewal
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`term” (P.D.31-32.) 3 The Decision then concludes that the 1981 Agreement’s
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`3 While the Decision recognizes that “extended renewal term” is “often used to
`refer only to the 19 year extension added by the 76 Act,” it invokes its conflated
`interpretation as a “plausible alternative” (P.D.31) to then reach its conclusion that
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`references to the “extended renewal term” can “plausibly” be read to include the
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`period from 1981 through 2009, rather than from 1990 through 2009 as is
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`expressly stated in the 1981 Agreement. Id. This conclusion is erroneous.
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`Section 304 refers to works in their “first or renewal term” and separately to
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`an “extended renewal term,” the latter referencing the 19 (now 39) year period
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`following the “renewal term.” Compare 17 U.S.C. § 304(b) with § 304(c). At the
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`time of the 1981 Agreement (i.e., prior to the CTEA), § 304(b) covered “any
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`copyright, the renewal term of which is subsisting at any time between December
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`31, 1976, and December 31, 1977, inclusive and extended the entire duration of
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`copyright (not the renewal term) from 56 years to 75 years.4 The “renewal term”
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`referenced in § 304(b) can only be the 1909 Act’s 28 year renewal term because
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`the 1909 Act was the then operative law. The “extended renewal term” referenced
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`in § 304(c) can only mean the additional 19 year period because termination could
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`not be effected any earlier than 56 years after copyright was secured (§ 304(c)(3)),
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`meaning after expiration of the 1909 Act’s 28 year renewal term.
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`Section 304(c)(6)(F)’s reference to “the remainder of the extended renewal
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`term” does not support the Panel’s conflation of the extended renewal term and the
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`renewal term. Because termination can be effected in a five year window opening
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`the 1981 Agreement unambiguously granted not only the 19 years but also re-
`granted the 9 years remaining in the renewal term that EMI already owned.
`4 See Mills Music, Inc. v. Snyder, 469 U.S. 153 n.26 (1985) (quoting 304(b) prior to
`the CTEA amendment).
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`56 years after copyright was secured, the term “remainder” simply recognizes that
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`less than the full 19 years of the extended renewal term may remain by the time
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`termination is effected.
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`The Decision also conflicts with Woods v. Bourne Co., 60 F.3d 978, 981-82
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`(2d Cir. 1995), which it cites but rejects in favor of its “plausible” conflation thesis.
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`In Bourne, this Court recognized the existence of a discrete “extended renewal
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`term” consisting of the 19 year period commencing at the end of the original 28-
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`year renewal term. See id. (emphasis added; internal internal citations omitted):
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`“At the end of the 28th year of the renewal term, the author (if alive)
`or the author's surviving spouse or children may terminate the rights
`of a grantee, usually a publisher, to whom the author had transferred
`rights in the original work. During the 19-year extended renewal term,
`a copyrighted work does not enter the public domain but continues to
`generate royalties.
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`The Bourne decision comports with legislative history which refers to the
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`(then) “19-year extension of renewal terms,” which it also refers to as the
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`“extended term,” and which it calls “a completely new property right.”5
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`By conflating the “extended renewal term” with the 1909 Act’s 28 year
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`renewal term, the Panel reached the erroneous conclusion that when the 1981
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`Agreement assigned the US copyright to EMI for the “extended renewal term,” it
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`included a re-grant of the 1909 Act’s 28 year renewal term that EMI already
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`5 H.R. Rep. No. 1476, 94th Cong., 2d Sess. 140, reprinted in 1976 U.S.C.C.A.N.
`5659, 5756.
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`owned (forming the foundation of the Panel’s conclusion that the 1981 Agreement
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`impliedly terminated the 1951 Agreement). This conclusion was then buttressed
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`by the Panel’s revision of § 203(a)(3) to eliminate publication “under the grant” as
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`a means of measuring the grant. The result of the Decision is that the expectations
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`of the parties to potentially tens of thousands of agreements are likely to be
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`rendered uncertain.
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`II. The Decision Conflicts With Mewborn
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`The Panel’s conclusion that the 1981 Agreement automatically terminated
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`and replaced the 1951 Agreement, (P.D.23), is in direct conflict with the central
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`holding in Classic Media, Inc. v. Mewborn, 532 F.3d 978 (9th Cir. 2008).
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`As here, in Mewborn, the Ninth Circuit addressed termination rights in the
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`context of two agreements (1976 and 1978) ostensibly granting overlapping rights.
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`The Ninth Circuit found that the 1978 agreement “did not substitute for or revoke
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`the 1976 Assignment….,” reasoning that because the heir attempted to assign
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`rights to an existing grantee that the grantee already owned, that assignment was a
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`nullity, and that because the prior agreement “remained intact” it could be
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`terminated under Section 304.6 Id. at 982, 986. The Court found that while the
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`6 Mewborn distinguished Milne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1040,
`1044 (9th Cir. 2005), where a 1983 agreement “expressly revoked” a 1930 grant
`and a 1961 grant. There is no language “expressly revok[ing]” the 1951 Agreement
`and beyond the conflation of extended renewal term and renewal term, there is
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`1978 agreement and 1976 agreement purported to grant identical rights, the 1978
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`agreement did not terminate or replace the 1976 agreement and could not transfer
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`rights to the grantee that grantee already owned.
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`III. The Decision’s Interpretation of “Publication” Under Section
`203 Is Contrary To The Language And Policy Of The ‘76 Act
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`Where a grant provides a right of publication, § 203(a)(3) provides for
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`termination “at the end of thirty-five years from the date of publication of the work
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`under the grant or at the end of forty years from the date of execution of the grant,
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`whichever term ends earlier.” (Emphasis supplied.) Publication is defined in § 101
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`of the 76 Act and the definition contains no first publication limitation.  
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` The Panel invoked the 1909 Act in concluding that “publication of a work is
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`a one-time event” and the Song was first published in 1934 (P.D.37-39). But § 203
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`refers to publication “under the grant” not “first publication.” The Panel also
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`overlooked the fact that while other sections of the 76 Act do refer to first
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`publication of a work (see 17 U.S.C. §§ 104; 104A; 401, 408; 409; 410; 412), §
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`203 contains no such limitation.
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`The Decision is contrary to the principle that “courts should disfavor
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`interpretations of statutes that render language superfluous.” Connecticut Nat’l
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`Bank v. Germain, 503 U.S. 249, 253 (1992); Tasini v. New York Times Co., 206
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`
`nothing in the 1981 Agreement that suggests any implied revocation of the 1951
`Agreement.
`
`
`
`13
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`

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`Case 14-182, Document 85, 10/22/2015, 1625515, Page18 of 63
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`
`
`F.3d 161, 167 (2d Cir. 1999), aff’d, 533 U.S. 483 (2001) (applying canon of
`
`construction to 76 Act). Congress knew how to refer to first publication when it
`
`intended such limitation to be applicable. It did not include it in 203.
`
`In Mills Music, Inc. v. Snyder, 469 U.S. 153, 165 (1985), the Supreme Court
`
`focused on the use of the term “grant” in 17 U.S.C. § 304(c)(6)(A). Reasoning that
`
`“[i]n construing a federal statute it is appropriate to assume that the ordinary
`
`meaning of the language that Congress employed accurately expresses the
`
`legislative purpose”
`
`the Court
`
`found
`
`that
`
`the derivative works were
`
`“unquestionably” prepared “under authority of the grant” and therefore could
`
`continue to be utilized “under the terms of the grant” by the former grantee
`
`following termination. Id. at 165-167. There, as here, under “the grant” means
`
`what it says.
`
`The Decision is of enormous consequence. It truncates the duration of a
`
`future grant under § 304(c)(6)(D)’s “existing-grantee exception” (or that of the
`
`prior grant). While Congress sought to enable authors and heirs to realize the
`
`benefits of their termination rights earlier than the effective date, unless the
`
`existing grantee waits until just before the effective date of termination to enter
`
`into a new grant, the effect of the Decision is to shorten the term of perhaps tens of
`
`thousands of agreements made between authors (or heirs) and existing grantees
`
`who have obtained new grants under the “existing grantee exception” of §§
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`
`
`14
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`

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`Case 14-182, Document 85, 10/22/2015, 1625515, Page19 of 63
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`
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`203(b)(4) or 304(c)(6)(D) by up to five years, truncating the duration of either their
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`existing grants or their new grants. If the Panel’s interpretation holds, they will
`
`have essentially paid twice for the same rights.7
`
`The Panel Decision misreads the text of the Copyright Act, is belied by
`
`precedent, and makes bad policy injecting uncertainty into contractual relations. It
`
`should be reversed.
`
`CONCLUSION
`
`For the foregoing reasons, EMI Feist Catalog, Inc. respectfully requests that
`
`the Panel Decision be reversed and such other relief as the Court deems just and
`
`proper.
`
`Dated:
`
`New York, New York
`October 22, 2015
`
`
`
`
`
`
`
`PRYOR CASHMAN LLP
`
`
`
`
`
`
`By: /s/ Donald S. Zakarin
`Donald S. Zakarin
`Frank P. Scibilia
`Ross M. Bagley
`7 Times Square
`New York, New York 10036
`(212) 421-4100
`Attorneys
`for Defendant/Appellee
`EMI Feist Catalog, Inc.
`
`
`7 This anomaly is a further reason why it is doubtful that § 203 was ever
`contemplated to provide a second bite at the termination apple where § 304
`termination rights have already been exercised. Prior to CTEA, § 203 had no
`application to a post-termination grant of extended renewal term rights because the
`19 year extended renewal term made it mathematically impossible. Given
`Congress’s express preclusion of a second termination right in § 304(d), there is no
`logical reason why it would have provided one in § 203.
`
`
`
`15
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`

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`Case 14-182, Document 85, 10/22/2015, 1625515, Page20 of 63
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`DECISION
`
`

`
`
`
`Case 14-182, Document 77-1, 10/08/2015, 1615275, Page1 of 40Case 14-182, Document 85, 10/22/2015, 1625515, Page21 of 63
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`
`14‐182‐cv 
`Baldwin v. EMI Feist Catalog, Inc. 
` 
`
`UNITED STATES COURT OF APPEALS 
`FOR THE SECOND CIRCUIT 
` 
`August Term 2014 
` 
`(Argued: December 11, 2014  Decided: October 8, 2015) 
` 
`No. 14‐182‐cv 
` 
`–––––––––––––––––––––––––––––––––––– 
` 
`GLORIA COOTS BALDWIN, PATRICIA BERGDAHL, CHRISTINE PALMITESSA, 
` 
`Plaintiffs‐Appellants, 
` 
`‐v.‐ 
` 
`EMI FEIST CATALOG, INC., 
` 
`Defendant‐Appellee. 
` 
`–––––––––––––––––––––––––––––––––––– 
` 
`POOLER, LIVINGSTON, and DRONEY, Circuit Judges. 
`
`Before: 
` 
`Plaintiffs appeal from a December 17, 2013 judgment of the United States 
` 
`District Court for the Southern District of New York (Scheindlin, J.) in favor of 
`defendant EMI Feist Catalog, Inc. (“EMI”).  The district court granted summary 
`judgment  to  EMI  on  plaintiffs’  claim  seeking  a  declaration  that  either  of  two 
`copyright  termination  notices  served  on  EMI  in  2007  and  2012  will  terminate 
`EMI’s rights in the musical composition “Santa Claus Is Comin’ to Town.”  On 
`appeal, plaintiffs argue that the district court erred in holding that EMI owns its 
`rights  under  a  1951  grant  that  plaintiffs  are  powerless  to  terminate,  and  argue 
`instead that EMI owns its rights under a 1981 grant that will be terminated by 
`1 
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`

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`
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`Case 14-182, Document 77-1, 10/08/2015, 1615275, Page2 of 40Case 14-182, Document 85, 10/22/2015, 1625515, Page22 of 63
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`either  the  2007  or  2012  termination  notice.    We  agree  with  plaintiffs  that  EMI 
`owns  its  rights  under  the  1981  grant,  and  conclude  that  the  2007  termination 
`no