Termination Rights and the Stormy Daniels Lawsuit

The Stormy Daniels v. Donald Trump lawsuit includes an interesting copyright angle.  [Read the Complaint].  At its core, the so-called “hush agreement” requires Daniels to keep secret “all intangible private information . . . relating to any of [Donald Trump’s] alleged sexual partners, alleged sexual actions or alleged sexual conduct” and also turn over any “tangible materials” that include related information or other physical personal property.

The agreement also includes a copyright transfer – so that any related copyright to works created by Daniels will transfer to Trump.  The clawback or “termination rights” under Section 203 make a permanent transfer a bit difficult.

Notwithstanding the foregoing, if any of the rights herein granted are subject to termination under section 203 . . . [Daniels] hereby agrees to re-grant such rights to [Trump] immediately upon such termination.

Section 3.2 of the Agreement.

Termination Rights: For those not practicing copyright law, the statute provides termination rights that permits authors or their heirs to terminate copyright assignments and licenses 35-40 years after execution of the transfer (notice of termination must to be provided earlier).

The provision in the Agreement purports to skirt around the termination right by requiring a re-granting.  However, I wouldn’t think this work-around would be effective since 203(a)(5) states that “Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to . . . make any future grant,” followed by 203(b)(4) which clearly states an “agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date [or at least service of the notice] of the termination.”  The Agreement does include a severability clause – the fact that some provisions are unenforceable “shall not affect the validity or enforceability of the remaining provisions.”

* Thanks to Prof. Sean O’Connor for highlighting this issue for me.

36 thoughts on “Termination Rights and the Stormy Daniels Lawsuit

  1. 5

    If there was no contract, as she claims, then surely she must have returned the money she received in error. Right?

    1. 5.1

      I wonder if anyone (including counsel for Miss Daniels) noticed that the first paragraph delineating the parties was written in the alternative.

      1. 5.1.1

        Just noticed this (attempted salvage):

        Your comment is awaiting moderation.
        March 8, 2018 at 10:50 am

        You mean the money she was so viciously forced to take as an “IP slave”…?

  2. 4

    Stormy D should have presented at the Oscars.

  3. 3

    Of course you’re right about copyright termination 35 years from now, but who really cares? Isn’t the real question here the very enforceability of this kind of agreement? Does the public policy of any state permit enforcement of a contract to completely squelch critical speech, promulgated by a political candidate days before an election, for a term that covers not only the most critical pre-election period but also the entire term of the office to which he may be elected? And if not, doesn’t the state law that serves no purpose other than to enforce such blanket censorship violate the first amendment? This type of NDA has become a scourge of labor law (exit agreements), products liability (tobacco), whistleblowing, and now the political process. They should be definitively abolished, indeed, made criminal, per se. If a state defamation cause of action does not trump the First Amendment, then why should contract law?

    1. 3.1

      Last I noticed, this was NOT a contract of adhesion, recurser, thus your concern seems misplaced.

      There is NO “enforce such blanket censorship violate the first amendment” anywhere near this story.

      You would do well to try to understand the concept of “Freedom to Contract.”

      1. 3.1.1

        Are you trolling me? Go read the agreement – for example: “PP hereby irrevocably agrees and covenants that she shall not, directly or indirectly, publicly disparage DD, nor write, publish, cause to be published, or authorize, consult about or with or otherwise be involved in the writing, publication, broadcast, transmission or dissemination of any book, memoir, letter, story, photograph, film, script, images, interview, article, essay, biography, diary, journal, documentary, or other written, oral, digital or visual account or description or depiction of any kind whatsoever whether fictionalized or not, about DD or his family, whether truthful, laudatory, defamatory, disparaging, deprecating or neutral. [Or, contract for same.] Fore [sic] greater clarity PP will never discuss with anyone the contents of this Settlement Agreement, nor will she voluntarily confirm the existence
        of this Settlement Agreement.” A bit broad, don’t you think? This, in short, is a candidate for the highest office paying money to invoke the law to totally silence a potential critic who may have damaging information – and silence the fact that he silenced her. “Freedom of contract,” of course, takes us back to Lochner v. New York, substantive due process, and all that. However, freedom of contract is one thing when the considerations at stake are solely as between the contracting persons, but quite another when enforcing the contract has wide implications for the public.


          You are completely off as to your understanding of the contract law involved.

          I suggest that you come to a basic understanding PRIOR to forming your opinion.


            (what you need to establish – at a minimum – is that the contract was not freely entered into. I provided a reference to this above with the “contracts of adhesion” comment.


            You are completely off as to your understanding of the contract law involved.

            Remember, folks: “anon” couldn’t tell the difference between Herr Tw ittler and Clinton. But he would never engage in ad hominem attacks on people in defense of some r@ cist mis 0gynist pr ick who h@ tes “political correctness” just like “anon” does. Nope. He’s a very serious person! Just watch how serious he is when he dances.


              couldn’t tell the difference

              Wow – completely false.

              The fact that Elephant C R P and Donkey C R P are both C R P never stood for “no difference.”

              Only a person such as you would even attempt such C R P spin.


                (plus, as the one who heaps out more as hominem than ALL OTHERS COMBINED, the item you hire is not as hominem, and my comment has ZERO to do with the parties involved in the contract. For all I care, that could be a contract between Monica and Bill(y).

                That you do obviously let your feelings get in the way of a purely legal point is most stultifying.

                1. Lol – autocorrect got that one:

                  you hire = you quote
                  as hominem = ad hominem
                  That you do = That you so

                2. anon, speaking of crass, I was watching Ingraham last night. A Democrat congressman guest opened his remarks by sniffing the ex Trump aide sitting next to him and then suggesting he might smell of alcohol. That really set the Trump aid off, who then read an really outrageous post by the Democrat along the like MM makes every five minutes about R’s. Even Ingraham was astounded and said so.

                  I have never in my life seen such rude and over-the-top behavior by anyone on a program like Ingraham’s.

                  Rude. Crass. Classless. Impolite. Unspeakable.


          recurser, but you are truly forgetting what is important here — that Stormy be fully compensated for her efforts and, of course, her discretion. If these agreements could be put aside as against public policy, the likes of Stormy would never make any money.

          Have a heart.


            You bet, I might just match your contribution!

      2. 3.1.2

        Here’s where unbridled “freedom of contract” takes you (this just in from NBC News): “President Donald Trump’s lawyer is trying to silence adult-film star Stormy Daniels, obtaining a secret restraining order in a private arbitration proceeding and warning that she will face penalties if she publicly discusses a relationship with the president.” Here we have “privatized” “justice” through a hired “judge,” enjoining the public’s right to know the truth. People no doubt died on foreign shores to protect our “freedom” to have this suppression.


          Maybe read the actual voluntarily signed agreement….

          (before you decide to get all “righteous” while being completely wrong)


            Oh of course, it’s “voluntary” and therefore enforceable. QED.


              If you are correct, we should quit being lawyers and just go out and buy guns.


              Perhaps salvaged…

              Your comment is awaiting moderation.
              March 7, 2018 at 7:42 pm


              As to “Oh of course, it’s “voluntary” and therefore enforceable. QED.

              It most certainly is not the opposite as you want it to be.

              Feel free to say something (anything) that shows that you have an inkling as to how contract law works.


            anon, MSNBC, CNN, and Congressmen Adam B. Schiff all want the dirt on Trump. Real dirt. They are now no better than gutter publications that the average democrat reads in the john or watch for prurient entertainment. Let’s impeach the rascal for consorting with women while married.


            Were we not lectured about that by Dems back in the Clinton era that such affairs are not the subject of impeachment?


              Were we not lectured about that by Dems back in the Clinton era that such affairs are not the subject of impeachment?

              And Ned Heller goes for the touchdown and spikes the ball right in his own face.

              Wow. You have to see this stuff to believe it.


                Bill Clinton was impeached for lying under oath and obstructing justice. But the Democrats refused to remove him from office despite incontrovertible evidence. Because apparently that was NBD.


              MSNBC, CNN, and Congressmen Adam B. Schiff all want the dirt on Trump. Real dirt.

              Or maybe just his tax returns.

              Remember, folks: Ned Heller is an adult human with a law degree. He lives in California and he lies awake in a cold sweat because there might be a Muslim out there somewhere.


                Enjoy that swagger, Ned


                MM, bigotry in all forms bothers me. I consider most D politicians today to be bigots. They deal in insulting caricatures of their political opponents, making outrageous statements and characterization simply because of who they are.

                Do you have any idea what I am talking about, MM?


          People no doubt died on foreign shores to protect our “freedom” to have this suppression.

          Just like they died to protect “our freedom” to watch the National Anthem before a football game without any brown people protesting.

          Brown people are so weird and uptight, always saying that white people who h@ te them are r@ cist. That’s not fair! And it demeans our discourse.

          “anon” knows what I’m talking about. Right, “anon”? Maybe take the pillow case off so you can read better.



            You attempt to project something that is simply not there.



            ” always saying that white people who h@ te them are r@ cist.”

            You’re still living 50 years ago. Now leftists just spur them, and other leftists in addition to “brown people” (non-whites shall we say), on to always being saying that white people, including those that don’t ha te brown people, are racis t.

            See just as a for instance all your allegations over the last year here.


              Malcolm truly is one of the most bigoted people posting here.

              His “ISMs” alone show that.

    2. 3.2

      recurser, but if such contracts were completely unenforceable in the first place, those who have something to tell would never get any payoff at all.

  4. 2

    It is an interesting piece of legislation to proactively “void” any voluntarily agreed upon “Right to Contract” item.

    The tone of “purports to skirt around” presupposes that the Government’s intrusion into the affairs of property rights (copyright being a property as fully alienable as patents) stands up to scrutiny. In fact, the tone should be directed 180 degrees and should be questioning the propriety of such an intrusion.

    I have to wonder if the inclusion of the ability clause was made in view of at least some one’s recognition that the clawback clause could be seen as overly intrusive.

  5. 1

    If in 2052 Granny Stormy wants to show the public what she was up to with the now-deceased ex-president, I doubt that any of us will care.

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