The Effect Of 'New Uses' On Copyright License Agreements

As technology and media change rapidly, it has become increasingly difficult for attorneys and their clients to state and understand with certainty which rights under copyright are retained by the granting party and which are transferred by agreement. 

As technology and media change rapidly, it has become increasingly difficult for attorneys and their clients to state and understand with certainty which rights under copyright are retained by the granting party and which are transferred by agreement.  Copyright agreements, like all written agreements, are governed by the exact words as written by the parties and they control the parties’ mutual objective of exploiting a common property right. As technology evolves, the scope of the rights granted, transferred and retained may become unclear and give rise to litigation.

Battles over whether a grantee may exploit works through new marketing channels or media have vexed courts for decades. These so-called "new-use" cases deal with whether a grantee may exploit a right granted under copyright through a new means or media. Though the courts have frequently addressed new-use disputes, recent decisions such as the U.S. Supreme Court decision in New York Times v. Tasini, 121 S.Ct. 2381 (June 25, 2001) and other cases may herald a shift in the judicial approach to construing copyright grants.