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Of course, the marginal difference in the value of any particular work may be small; many works exhaust their marketability in a relatively short period after creation and publication. Nevertheless, for enduringly successful works, the 20 years may make a real contribution to the copyright owner's total return. Motion pictures in particular may become classics, whether due to aesthetic merit, the appearance of film stars, or an evocative portrayal of an era. The video rental business has made this continuing value evident; every neighborhood video rental store stocks an entire section of old movies. These older works are becoming even more accessible to the public through emerging markets made possible by new digital technology, such as video on demand.
Moreover, focusing on the incremental value of the extension for any single work overlooks an important fact : many copyright owners own rights in multiple works, from the photographer with a voluminous portfolio, to the music publisher with a catalogue of songs, to the movie studio with an extensive film library. For these copyright owners, a small increase in profit margin for each of numerous works will cumulatively add up to a significant sum, which can be invested in further creation.
Those opposing term extension point out that the Copyright Act gives authors the ability to terminate transfers of copyright rights, and recapture those rights, 35 years after the transfer.' As a result, they argue, the additional 20 years will have no value to the author, since this extended portion of the term can be recaptured at the same time. They reason that this will make the 20-year longer grant worth no more to its purchaser than the current shorter one, and will mean that the author cannot obtain a higher price for a grant of rights for the extended term.
This argument has little validity. As a preliminary matter, for works made for hire such as commercially produced motion pictures, there is no termination right." Even for other works, the extra 20 years will add some value. At the time the
' 17 U.S.C. §§ 203. See also § 304(c) (allowing termination of transfers in works protected by federal copyright as of 1978 at the end of 56 years of the copyright term) .
" See 17 U.S.C. §§ 203(a), 304(c). It should also be noted that termination rights will not always be available, even for works otherwise eligible. In the case of works already in existence, the 5 -year window for termination may already have passed. Id. § 304(c) (3) . As to future works, grants made by the author's heirs, rather than the author herself, cannot be terminated. § 203(a).