21-2174-cv
`Peretti v. Authentic Brands Group, LLC
`
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`
`August Term, 2021
`
`Argued: April 8, 2022 Decided: May 4, 2022
`
`Docket No. 21-2174-cv
`
`
`VALENTINA M. PERETTI ACUTI, PAUL J. REITNAUER, III,
`
`Plaintiffs-Appellants,
`
`— v. —
`
`AUTHENTIC BRANDS GROUP LLC, ABG EPE IP, LLC,
`
`Defendants-Appellees.
`
`
`
`B e f o r e:
`
`LIVINGSTON, Chief Judge, LYNCH and LOHIER, Circuit Judges.
`
`
`
`Appellants Valentina M. Peretti Acuti and Paul J. Reitnauer, III, heirs to the
`late songwriter and record producer Hugo Peretti, appeal from an order of the
`United States District Court for the Southern District of New York (Buchwald, J.)
`dismissing Appellants’ action, which sought a declaratory judgment that
`
`
`Peretti v. Authentic Brands Group, LLC
`
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`
`August Term, 2021
`
`Argued: April 8, 2022 Decided: May 4, 2022
`
`Docket No. 21-2174-cv
`
`
`VALENTINA M. PERETTI ACUTI, PAUL J. REITNAUER, III,
`
`Plaintiffs-Appellants,
`
`— v. —
`
`AUTHENTIC BRANDS GROUP LLC, ABG EPE IP, LLC,
`
`Defendants-Appellees.
`
`
`
`B e f o r e:
`
`LIVINGSTON, Chief Judge, LYNCH and LOHIER, Circuit Judges.
`
`
`
`Appellants Valentina M. Peretti Acuti and Paul J. Reitnauer, III, heirs to the
`late songwriter and record producer Hugo Peretti, appeal from an order of the
`United States District Court for the Southern District of New York (Buchwald, J.)
`dismissing Appellants’ action, which sought a declaratory judgment that
`
`
`
`Appellants had validly terminated a 1983 grant of rights in the copyright to the
`hit song “Can’t Help Falling In Love.” The district court dismissed the action,
`holding that the grant, which transferred rights and interests held by the Peretti
`family in the renewal term of the copyright to Appellees’ predecessors-in-
`interest, was not a grant “executed by the author” under § 203 of the Copyright
`Act of 1976 and therefore that Appellants had no statutory right to terminate the
`grant.
`
`We agree with the district court. The termination rights in § 203 of the
`Copyright Act of 1976 apply only to grants executed by the author. While Hugo
`Peretti’s signature is affixed to the grant document at issue, the interests at issue
`are the contingent rights held and transferred to the Appellees’ predecessors-in-
`interest by Peretti’s spouse and children, the grant of which was not and cannot
`be executed by the author. We therefore AFFIRM the judgment of the district
`court.
`
`
`
`ROBERT W. CLARIDA, Reitler Kailas & Rosenblatt LLP,
`New York, NY, for Plaintiffs-Appellants.
`
`PETER ANDERSON (Adam I. Rich, Amanda Levine,
`on the brief), Davis Wright Tremaine LLP,
`Los Angeles, CA, New York, NY,
`for Defendants-Appellees.
`
`
`
`GERARD E. LYNCH, Circuit Judge:
`
`This appeal concerns a dispute over the ownership of rights in the
`
`copyright of “Can’t Help Falling In Love” (the “Composition”), a well-known
`
`ballad written by Hugo Peretti, Luigi Creatore, and George Weiss, and
`
`popularized by Elvis Presley, in 1961. Plaintiffs-Appellants Valentina M. Peretti
`
`2
`
`
`
`Acuti and Paul J. Reitnauer, III (together, the “Perettis”), the surviving statutory
`
`successors to the late Hugo Peretti, brought this action for declaratory relief
`
`against Defendants-Appellees Authentic Brands Group, LLC and ABG EPE IP
`
`LLC (together, “Authentic Brands”), successors-in-interest to the parties to whom
`
`the Peretti family assigned their interests in the renewal term of the copyright to
`
`the Composition in 1983. They now appeal from an August 13, 2021 order of the
`
`United States District Court for the Southern District of New York (Naomi Reice
`
`Buchwald, J.) dismissing their claims.
`
`The Composition was initially created, published, and registered as a
`
`copyright in 1961. In 1983, several years after the passage of the Copyright Act of
`
`1976, Hugo Peretti, his wife, and his daughters signed a contract transferring
`
`their contingent rights and interests in the renewal term of the copyright of the
`
`Composition to Appellees’ predecessors-in-interest (the “1983 Assignment”).
`
`Hugo Peretti died before those renewal rights vested, and his widow and
`
`daughters ultimately registered the renewal of the copyright in 1989. In 2014,
`
`Appellant Valentina Peretti Acuti, one of Hugo Peretti’s daughters, and the late
`
`June Peretti, Hugo’s widow, served a Notice of Termination on Authentic Brands
`
`purporting to terminate the 1983 Assignment under 17 U.S.C. § 203, which
`
`3
`
`
`
`provides a limited right to terminate such grants executed after 1978 by the
`
`author of a work. Authentic Brands disputed the effectiveness of the termination,
`
`and the Perettis, now the sole surviving statutory heirs of Hugo Peretti, filed suit
`
`in the Southern District of New York seeking a declaratory judgment that the
`
`termination was properly effectuated. The district court dismissed the claim,
`
`holding that the Perettis had no right to terminate the 1983 Assignment under
`
`§ 203 because the 1983 Assignment was not a grant “executed by the author.” The
`
`Perettis now appeal, arguing that the district court misinterpreted the text of
`
`§ 203 and misapplied it in dismissing their suit for failure to state a claim.
`
`We agree with the district court. Section 203 of the Copyright Act of 1976
`
`applies only to grants “executed by the author on or after January 1, 1978.” 17
`
`U.S.C. § 203(a). An execution of a transfer of copyright ownership “is not valid
`
`unless an instrument of conveyance . . . is in writing and signed by the owner of
`
`the rights conveyed.” Id. § 204(a). While Hugo Peretti’s signature graces the 1983
`
`Assignment, he cannot have executed a grant transferring rights, such as those
`
`owned by his family members, that he did not hold. Rather, his signature on the
`
`grant document transfers only his own contingent right to the renewal term,
`
`while his wife’s and daughters’ signatures transferred their respective contingent
`
`4
`
`
`
`rights. Because Hugo Peretti died before his contingent right vested, the rights
`
`transferred to Authentic Brands’ predecessors-in-interest were the contingent
`
`rights held by his wife and daughters. We therefore conclude that the grants
`
`made by Hugo’s wife and daughters in the 1983 Assignment are not grants
`
`“executed by the author” merely because Hugo Peretti’s signature is found on
`
`the same grant document, and thus are not terminable under § 203. Accordingly,
`
`we AFFIRM the judgment of the district court.
`
`BACKGROUND1
`
`In 1961, Hugo Peretti, along with co-composers Luigi Creatore and George
`
`Weiss, co-authored the Composition. Peretti and his co-authors registered the
`
`copyright to the Composition with the U.S. Copyright Office as an unpublished
`
`work on January 16, 1961 under Reg. No. EU 654415. A recording of the
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`Composition, performed by Elvis Presley, was released on October 1, 1961 and
`
`quickly became a chart-topping hit. Peretti and his co-authors registered the
`
`1 The facts set forth below are drawn from the Complaint. For the purpose of a
`motion to dismiss, this court assumes all facts alleged in the Complaint to be true
`and draws all reasonable inferences in favor of the plaintiff. See Koch v. Christie’s
`Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012).
`
`5
`
`
`
`copyright to the Composition as a published work on December 11, 1961 under
`
`Reg. No. EP158445.
`
`At the time the copyright to the Composition was registered, the Copyright
`
`Act of 1909 (the “1909 Act”), Pub.L. No. 60–349, 35 Stat. 1075, 17 U.S.C. § 1 et seq.
`
`(Mar. 4, 1909), was in effect. Under the terms of the 1909 Act, authors were
`
`entitled to an “original term” of copyright of 28 years beginning on the date the
`
`work was published, and to the right to renew the copyright for an additional 28-
`
`year “renewal term.” This renewal right remained with the original owner of the
`
`copyright, even if the owner had granted his rights in the original copyright term
`
`to a publisher. The renewal term was intended to “permit[] the author, originally
`
`in a poor bargaining position, to renegotiate the terms of the grant once the value
`
`of the work ha[d] been tested.” Stewart v. Abend, 495 U.S. 207, 218–19 (1990); see
`
`also Penguin Grp. (USA) Inc. v. Steinbeck, 537 F.3d 193, 197 (2d Cir. 2008).
`
`However, authors could, and often did, assign their contingent rights in the
`
`renewal term to third parties prior to the expiration of the original term of
`
`copyright. See Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 657 (1943)
`
`(holding that such grants were enforceable). Thus, under the regime of the 1909
`
`Act, “[u]nless the author died before the renewal term began – in which case his
`
`6
`
`
`
`renewal rights vested in his statutory heirs, notwithstanding his assignment of an
`
`expectancy in those rights – a grant of renewal rights ensured that the publisher
`
`would own the copyright for the entire fifty-six-year period provided by the 1909
`
`Act.” Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18, 20 (2015), citing Steinbeck, 537
`
`F.3d at 197 (internal citation omitted). The 1909 Act did not provide authors or
`
`their statutory heirs with the right to terminate their grants.
`
`In 1976, Congress created a new statutory scheme to govern copyright law
`
`– the Copyright Act of 1976 (the “1976 Act”), Pub. L. No. 94-553, 90 Stat. 2541., 17
`
`U.S.C. § 1 et seq. The 1976 Act, which became effective on January 1, 1978,
`
`replaced the original and renewal term framework for copyrights with a unitary
`
`term of copyright, which, for works created after its effective date, consists of the
`
`life of the author plus an additional 70 years. For copyrights to works like the
`
`Composition, which were still in their original term as of the effective date of the
`
`1976 Act, the Act preserved the renewal right but extended the renewal term. The
`
`original term would “endure for 28 years from the date it was originally
`
`secured,” 17 U.S.C. § 304(a)(1)(A), and “the author of such work, if the author is
`
`still living, [or] the widow, widower, or children of the author, if the author is not
`
`living . . . shall be entitled to a renewal and extension of the copyright in such
`
`7
`
`
`
`work for a further term of 67 years.” Id. § 304(a)(1)(C). As under the 1909 Act, the
`
`right to renew the copyright vests at the beginning of the renewal term in the
`
`author or his statutory successors, notwithstanding any transfer, assignment, or
`
`devise. Id. §§ 304(a)(1)(C); 304(a)(2)(B).
`
`Unlike the 1909 Act, the 1976 Act provided for a limited right to terminate
`
`grants to third parties of rights in a copyright. This termination right served as a
`
`replacement for the reversionary right to renew, which would cease to exist for
`
`new copyrights, and once again gave the author of a work a second chance at
`
`bargaining over the value of his or her copyright. The statute sets out two
`
`different termination provisions, one applicable to those grants executed prior to
`
`the 1976 Act’s effective date, and a second applicable to those grants executed
`
`thereafter. Section 304(c) allows for the termination of grants executed before the
`
`1976 Act’s effective date by authors and related non-authors, such as a surviving
`
`spouse or children. Where the author who made the grant is deceased, the
`
`author’s termination interest passes to, and thus may be exercised by, his
`
`successors. 17 U.S.C. § 304(c)(2).2 Section 203 provides for the termination of
`
`2 Section 304(c)(2) provides as follows:
`Where an author is dead, his or her termination interest is
`owned, and may be exercised, as follows:
`
`8
`
`
`
`grants executed after the 1976 Act's effective date, and is limited, by its plain
`
`language, to grants executed by the author.3 It does not make any provision for
`
`the termination of grants executed after January 1, 1978 by related non-authors.
`
`However, as with pre-1978 grants, an author’s termination interest passes to his
`
`(A) The widow or widower owns the author’s entire termination
`interest unless there are any surviving children or grandchildren
`of the author, in which case the widow or widower owns
`one-half of the author’s interest.
`(B) The author’s surviving children, and the surviving children
`of any dead child of the author, own the author’s entire
`termination interest unless there is a widow or widower, in
`which case the ownership of one-half of the author’s interest is
`divided among them.
`(C) The rights of the author’s children and grandchildren are in
`all cases divided among them and exercised on a per stirpes
`basis according to the number of such author’s children
`represented; the share of the children of a dead child in a
`termination interest can be exercised only by the action of a
`majority of them.
`(D) In the event that the author’s widow or widower, children,
`and grandchildren are not living, the author’s executor,
`administrator, personal representative, or trustee shall own the
`author’s entire termination interest.
`
`3 Section 203, which is titled “Termination of transfers and licenses granted by the
`author,” provides as follows:
`(a) In the case of any work other than a work made for hire, the
`exclusive or nonexclusive grant of a transfer or license of
`copyright or of any right under a copyright, executed by the
`author on or after January 1, 1978, otherwise than by will, is
`subject to termination under the following conditions . . .
`
`9
`
`
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`successors upon his death. 17 U.S.C. § 203(a)(2).
`
`In January 1983, after the passage of the 1976 Act and its effective date but
`
`prior to the expiration of the original term of the Composition, Hugo Peretti and
`
`Luigi Creatore negotiated an agreement with Julian J. Aberbach and Joachim Jean
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`Aberbach (together, the “Aberbachs”), predecessors-in-interest to Authentic
`
`Brands, to administer the copyright of the Composition during its renewal term.4
`
`To deal with the reversionary nature of copyright renewal rights, which would
`
`pass to Hugo Peretti’s statutory successors upon his death regardless of whether
`
`he had assigned rights to the renewal term to another party, the 1983 Assignment
`
`also included as transferors Hugo’s wife, June Peretti, and his children, Valentina
`
`Peretti Acuti and Katharine Peretti Reitnauer. The 1983 Assignment, in relevant
`
`part, states that the transferors “hereby sell, assign, transfer and deliver to [the
`
`Aberbachs and their] successors and assigns, all of their right, title and interest
`
`vested or contingent in and to the United States renewal copyrights, and
`
`extension of renewal copyrights, of the Composition.” J. App’x at 38-39. The 1983
`
`Assignment was signed by Hugo Peretti, June Peretti, Valentina Peretti Acuti,
`
`4 Luigi Creatore and his wife and children conveyed their interests in a separate
`grant document; that grant is not at issue in this action. See J. App’x at 8.
`
`10
`
`
`
`and Katherine Peretti Reitnauer, as well as by the Aberbachs.
`
`Per the 1976 Act, renewal rights to the Composition would not vest until
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`the original term of copyright expired in 1989, 28 years after the copyright was
`
`initially secured. Unfortunately, Hugo Peretti died in 1986, three years before the
`
`end of the original term. In January 1989, Hugo’s surviving co-authors, along
`
`with his successors (his widow June Peretti and his daughters Valentina Peretti
`
`Acuti and Katharine Peretti Reitnauer), registered the Composition’s renewal
`
`copyright with the U.S. Copyright Office per 17 U.S.C. § 304(a)(2)(B).
`
`While some things are meant to be, an amicable collaboration between the
`
`Perettis and Authentic Brands through the end of the renewal term was not. On
`
`August 14, 2014, Hugo Peretti’s widow, June Peretti, and his daughter, Valentina
`
`Peretti Acuti, served a Notice of Termination on Authentic Brands (the “2014
`
`Notice”) purporting to terminate the 1983 Assignment under § 203(a)(3), which
`
`provides for the right to terminate a grant “executed by the author” at “any time
`
`during a period of five years beginning at the end of thirty-five years from the
`
`date of execution of the grant.” 17 U.S.C. § 203(a)(3). The 2014 Notice stated that
`
`both Hugo Peretti and his other daughter, Katharine Peretti Reitnauer, had died;
`
`that “the Peretti termination interest is held by Mr. Peretti’s widow June, his sole
`
`11
`
`
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`surviving daughter [Ms. Peretti Acuti], and his grandson, Paul Reitnauer, the sole
`
`child of his deceased daughter Katherine;” and that Valentina and June, who
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`“together . . . constitute more than one half of the Peretti termination interest,”
`
`intended to terminate the 1983 Assignment effective as of February 1, 2018.5 J.
`
`App’x at 15-16. In August of 2016, Authentic Brands responded to the 2014
`
`Notice, disputing its validity. The dispute over the validity of the 2014 Notice
`
`continued through the purported effective date of termination, and in June 2020,
`
`after the Perettis undertook to enter into an agreement with a new company to
`
`administer their interest in the Composition’s renewal copyright, counsel for
`
`Authentic Brands re-asserted that the 2014 Notice was invalid and that all rights
`
`in the copyright of the Composition remained with Authentic Brands.
`
`On August 18, 2020, the Perettis commenced this action against Authentic
`
`5 The termination of a grant made by a single author under § 203(a)(1) can be
`effected by “the person or persons who . . . own and are entitled to exercise a
`total of more than one-half of that author’s termination interest.” 17 U.S.C.
`§ 203(a)(1) (emphasis added). After Hugo Peretti’s death, half of his termination
`interest would pass to his widow, June Peretti, and the other half would be
`divided between his daughters, Valentina and Katharine. See 17 U.S.C.
`§§ 203(a)(2)(A); 203(a)(2)(B). Since more than one-half of the Peretti family’s
`termination interest would have been held by June and Valentina (on their theory
`that they took their termination interest from a grant made by Hugo, the author),
`no action by Paul Reitnauer would have been required to effectuate a termination
`under § 203(a)(1).
`
`12
`
`
`
`Brands, seeking a declaratory judgment that they had successfully terminated the
`
`1983 Assignment. Authentic Brands moved to dismiss the complaint for failure to
`
`state a claim under Federal Rule of Civil Procedure 12(b)(6). In deciding the
`
`motion, the district court ruled that Hugo Peretti’s contingent right to the
`
`renewal term of the Composition had extinguished upon his death in 1986 and
`
`did not transfer to the Aberbachs. Rather, the rights to the renewal term that
`
`were transferred were those of his widow and daughters, which had vested upon
`
`the expiration of the original copyright term. Accordingly, the district court held
`
`that because § 203 provides termination rights only to post-1978 grants executed
`
`by an author, Hugo Peretti’s widow’s and daughters’ rights to the renewal term
`
`were not subject to termination under that provision of the 1976 Act.
`
`Like a river flows surely to the sea, this appeal followed.
`
`DISCUSSION
`
`We review de novo a district court’s dismissal of an action for failure to
`
`state a claim under Rule 12(b)(6). See Bldg. Indus. Elec. Contractors Ass'n v. City of
`
`New York, 678 F.3d 184, 187 (2d Cir. 2012). Dismissal is appropriate where the
`
`complaint fails to set out a legal claim that is “plausible on its face.” Ashcroft v.
`
`Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
`
`13
`
`
`
`570 (2007). In assessing the plausibility of the claim, “we must accept factual
`
`allegations in the complaint as true and draw all reasonable inferences in favor of
`
`the nonmoving party.” Bldg. Indus. Elec. Contractors Ass’n, 678 F.3d at 187, citing
`
`DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). When the district
`
`court’s disposition “presents only a legal issue of statutory interpretation,” this
`
`court reviews de novo whether the district court correctly interpreted the statute.
`
`Hayward v. IBI Armored Servs., Inc., 954 F.3d 573, 575 (2d Cir. 2020), quoting City of
`
`Syracuse v. Onondaga County, 464 F.3d 297, 310 (2d Cir. 2006).
`
`This appeal, like the district court’s dismissal, hinges on a single issue
`
`dispositive of the Perettis’ claims: the meaning of the words “executed by the
`
`author,” as they are used in § 203 of the 1976 Act. The task of interpreting the
`
`operative termination provision necessarily starts with the language of the
`
`statute. Section 203(a) provides as follows:
`
`In the case of any work other than a work made for hire, the
`exclusive or nonexclusive grant of a transfer or license of
`copyright or of any right under a copyright, executed by the author
`on or after January 1, 1978, otherwise than by will, is subject to
`termination under the following conditions . . .
`
`17 U.S.C. § 203(a) (emphasis added).
`
`14
`
`
`
`But what exactly is a grant “executed by the author?” The Perettis
`
`emphasize that Congress, in enacting § 203(a), chose to address grants “executed
`
`by the author” rather than grants “made by the author,” or “rights granted by the
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`author.” Appellants’ Br. at 15 (emphasis in original). Thus, the Perettis contend,
`
`all that is required for a grant to be “executed by the author” is the author’s
`
`signature affixed to the grant document. That argument is not persuasive,
`
`however. The Copyright Act uses the word “executed,” not the word “signed.”
`
`Just as Congress could have chosen words that more emphatically convey the
`
`meaning favored by Authentic Brands, it likewise could have chosen words that
`
`would clearly convey the meaning favored by the Perettis, such as “any grant or
`
`transfer made in a document signed by the author.”6
`
`But we need not compare the words chosen by Congress to other words
`
`that hypothetically could have been used, because the term “execute” is explicitly
`
`defined in the 1976 Act. Section 204(a) of the 1976 Act, which is titled “Execution
`
`of transfers of copyright ownership,” provides as follows:
`
`A transfer of copyright ownership, other than by operation of
`law, is not valid unless an instrument of conveyance, or a note or
`
`6 Congress knows how to use the word “signed” when it wants to. Indeed, it uses
`that word several times in other parts of § 203. See, e.g., 17 U.S.C. § 203(a)(4).
`
`15
`
`
`
`memorandum of the transfer, is in writing and signed by the owner
`of the rights conveyed or such owner’s duly authorized agent.
`
`17 U.S.C. § 204(a) (emphasis added). Thus, the 1976 Act itself, in the statutory
`
`section immediately following the provision at issue, makes clear that the
`
`“execution” of a transfer of rights under the Act must be “signed by the owner of
`
`the rights conveyed.” Id.
`
`That meaning is consistent with the ordinary meaning of the word
`
`“execute” in legal contexts where that term is used in relation to transactional
`
`documents. Black’s Law Dictionary, for example, states that to execute a grant is
`
`to “make [it] valid by signing; to bring [it] into its final, legally enforceable form.”
`
`Execute, Black’s Law Dictionary (11th ed. 2019). Ordinary dictionaries, including
`
`the one cited by the Perettis, see Appellants’ Br. at 15, are to the same effect,
`
`defining “execute” in the relevant context as “to perform what is required to give
`
`validity to” a document, such as a deed. Execute, MERRIAM-WEBSTER,
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`https://www.merriam-webster.com/dictionary/execute (last accessed April 22,
`
`2022). Anyone can affix his signature to a document purporting to transfer a right
`
`or piece of property, but only the signature of the owner of the right or property
`
`in question (or that of the owner’s authorized agent) can “execute” the transfer,
`
`16
`
`
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`because only the owner’s consent can give “validity” to the transfer.
`
`In short, a grantor cannot validly “convey more than he owns,” Davis v.
`
`Blige, 505 F.3d 90, 99 (2d Cir. 2007), and no grant document is valid simply
`
`because it is signed by someone. The signature that executes the transfer of a
`
`right, as made clear by § 204, is that of the owner of the right in question. We
`
`hold, therefore, that based on the plain reading of the statute, a grant “executed
`
`by the author” is a grant that is documented in writing, that is signed by the
`
`author, and that conveys rights owned by the author.
`
`Turning to the grant at hand, the 1983 Assignment is a written agreement
`
`contemplating the transfer of a number of contingent rights held by the members
`
`of the Peretti family. Under the terms of the 1983 Assignment, the Peretti family
`
`transferred to the Aberbachs and their successors “all of their right, title and
`
`interest vested or contingent in and to the United States renewal copyrights, and
`
`extension of renewal copyrights, of the Composition.” J. App’x at 38. Because,
`
`prior to the expiration of the original term of a copyright, “renewal rights [are]
`
`expectancies until the renewal period arrives,” Miller Music Corp. v. Charles N.
`
`Daniels, Inc., 362 U.S. 373, 377 (1960), the only vested right held by any of the
`
`Perettis at the time the 1983 Assignment was executed was Hugo Peretti’s
`
`17
`
`
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`interest in the Composition during its original term. Therefore, the 1983
`
`Assignment transferred to the Aberbachs a bundle of unvested, contingent rights,
`
`consisting of Hugo Peretti’s contingent right to renew, which was contingent
`
`upon his living to renew; June Peretti’s contingent right to renew as Hugo’s
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`surviving spouse, contingent on Hugo not living to renew, June’s living to renew,
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`and June’s remaining married to Hugo at the time of his death; and Valentina
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`Peretti Acuti’s and Katharine Peretti Reitnauer’s contingent rights to renew as
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`Hugo’s surviving children, contingent on Hugo’s not living to renew and both
`
`Valentina’s and Katharine’s living to renew. The document was signed by Hugo
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`Peretti, June Peretti, Valentina Peretti Acuti, and Katherine Peretti Reitnauer, and
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`each signatory thereby conveyed his or her own contingent rights to the
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`Aberbachs.
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`Hugo Peretti’s death in 1986, prior to the beginning of the renewal term,
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`changed the bundle of rights conveyed by the 1983 Assignment in two
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`fundamental ways. First, upon Hugo’s death, his contingent right to renew the
`
`copyright of the Composition passed to his statutory successors, satisfying one of
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`the contingencies to which their rights were subject. See 17 U.S.C. § 304(a)(1)(C).
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`Second, because Hugo Peretti’s contingent renewal right was extinguished on his
`
`18
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`
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`death in 1986, that right never vested, and his grant of that contingent right was
`
`ineffectual to transfer any rights to the assignees. See Stewart, 495 U.S. at 220-21
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`(“[T]he assignee of all of the renewal rights holds nothing upon the death of the
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`assignor before arrival of the renewal period.”) (emphasis and internal quotation
`
`marks omitted). In 1989, at the beginning of the Composition’s renewal term, the
`
`contingent rights held by Hugo’s widow and daughters in the copyright’s
`
`renewal term vested and, per the terms of the 1983 Assignment, transferred to
`
`the Aberbachs. Thus, the Aberbachs ultimately took nothing from Hugo through
`
`the 1983 Assignment. See 3 Nimmer on Copyright § 11.03(A)(1)(c) (2021) (“In
`
`such circumstances [where the grantor of the renewal rights fails to survive until
`
`such rights vest], the renewal rights pass to the grantor’s statutory successors and
`
`the original grantee takes nothing from the original grantor.”). Those transfers
`
`that were effectuated by the 1983 Assignment were executed by June Peretti,
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`Valentina Peretti Acuti, and Katherine Peretti Reitnauer, not by Hugo Peretti.
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`Accordingly, they are not “grants executed by the author.” We therefore hold,
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`consistent with the district court’s opinion, that the grants at issue are not
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`terminable under § 203.
`
`19
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`
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`The Perettis contend that the grants by June Peretti, Valentina Peretti
`
`Acuti, and Katherine Peretti Reitnauer of their own contingent rights are not
`
`severable from Hugo Peretti’s grant of his contingent rights in the renewal term,
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`because the 1983 Assignment identifies the four Peretti signatories “jointly and
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`severally . . . as ‘Assignors’,” J. App’x at 38 (emphasis added), and the document
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`“does not make separate grants from each Assignor, but rather makes one grant
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`on behalf of all of them, jointly and severally.” Appellants’ Br. at 8. Thus, the
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`Perettis argue, every right transferred in the 1983 Assignment is a grant
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`“executed by the author.” In support of their proposition that a grant of rights in
`
`a copyright can be “joint and several,” the Perettis point to § 203(a)(1), which
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`provides for termination “[i]n the case of a grant executed by two or more
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`authors of a joint work,” 17 U.S.C. § 203(a)(1) (emphasis added), arguing that that
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`provision illustrates that under the statute, multiple assignors can jointly execute
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`a single grant of rights.
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`The Perettis’ position is unsustainable. Per 17 U.S.C. § 204(a), a grantor can
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`validly transfer only those rights that he or she owns. Hugo Peretti did not own
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`the contingent rights held by his wife and daughters; thus, he cannot have
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`executed a grant of their rights. If Hugo alone had signed a grant document
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`20
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`
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`purporting to transfer only his wife’s or daughters’ contingent rights, such grant
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`would not be valid under § 204(a) because Hugo did not own those rights. His
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`signature on the grant document alone is insufficient to render the grant of
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`another’s rights one “executed by the author.”
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`Moreover, § 203(a)(1) has no bearing on the situation at issue here, where
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`multiple parties transfer their own, separate contingent rights. Section 203(a)(1)
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`concerns the manner in which the termination rights of authors, who have
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`executed an effective transfer under § 204(a), may be exercised. The first sentence
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`of § 203(a)(1) covers grants executed by a single author. The second sentence,
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`cited by the Perettis, creates a special rule for grants by joint authors, and permits
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`termination of a grant by a majority of the joint authors who made it where those
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`authors chose to convey their rights by a single grant rather than by separate
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`grants. Neither sentence has any bearing on documents transferring the separate
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`contingent rights of multiple parties, or purports to grant termination rights to
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`statutory successors who transferred their own rights in a renewal term. The
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`Perettis emphasize the wording of the second sentence, which provides for “a
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`grant” executed by joint authors, and which the Perettis argue show that
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`Congress “expressly contemplated that multiple assignors might . . . ‘execute’ . . .
`
`21
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`
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`a single grant.” Appellants’ Br. at 16. But because § 203(a)(1) contemplates the
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`existence of a single grant executed by two or more joint authors, each joint author
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`executing such grant necessarily holds and owns the same underlying rights in
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`the copyright, as those are the rights derived from joint authorship. No signatory
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`to the kind of multi-party grant contemplated by § 203(a)(1) is signing away a
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`right he or she does not individually own, which is what the Perettis argue Hugo
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`Peretti accomplished by signing the 1983 Assignment.
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`The Perettis compare this case to Scorpio Music, S.A. v. Willis, 2012 WL
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`1598043 (S.D. Cal. May 7, 2012), where the district court analyzed a multi-party
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`grant in determining terminability under § 203. But Scorpio Music, an out-of-
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`circuit district court decision that is in any event not binding on this court, is
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`clearly distinguishable. The dispute in Scorpio Music involved separate grants,
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`one signed by a single author, Willis, and one signed by his two co-authors,
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`granting their rights in the copyrights of a series of hits for the Village People to
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`Scorpio Music, a music publisher. Willis served a notice of termination under
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`§ 203, which plaintiff Scorpio Music asked the court to declare invalid because
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`the other co-authors had not joined in the termination, as Scorpio Music
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`contended was required under § 203(a)(1). However, the district court ruled
`
`22
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`
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`against Scorpio Music, finding that Willis could terminate his
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`separately-executed grant without majority consensus from his co-authors
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`because he had not executed a joint grant with his co-authors as contemplated by
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`§ 203(a)(1).
`
`The Perettis characterize the holding thus: “The termination analysis for
`
`multi-party grants, such as the 1983 [Assignment] here, properly hinges directly
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`on whether the signatories ‘executed’ a single grant, or multiple separate grants.”
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`Appellants’ Br. at 18. But that is not what Scorpio Music instructs. First, Scorpio
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`Music grappled with a specific statutory provision addressing jointly-executed
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`grants by co-authors. No statutory carve-out exists for jointly-executed grants by
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`authors and their statutory successors. Second, the Perettis’ analysis necessarily
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`ignores that a jointly-executed grant by co-authors who all share an interest in the
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`right conferred is different from a jointly-executed grant by family members who
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`do not jointly hold any of the interests being conferred. In clear contrast to the
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`scenario in Scorpio Music, Hugo’s signature on the 1983 Assignment “executed”
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`the transfer of his rights, and only his rights, to the Aberbachs. The transfer of
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`rights held by June Peretti, Valentina Peretti Acuti, and Katherine Peretti
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`Reitnauer cannot have been grants “executed” by Hugo Peretti where he was
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`23
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`
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`not, and never had been, the owner of the rights conveyed. The plain meaning of
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`g
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