## Facts

- During the 1970s, Mimi Korman wrote and produced multiple radio jingles for WQBA-AM, a radio station owned by HBC Florida, Inc.
- The parties never executed a written agreement governing ownership, royalties, or how long WQBA could use the jingles.
- In 1978, Korman wrote lyrics for a jingle titled “Yo Llevo a Cuba La Voz” (“I Convey the Voice to Cuba”), which WQBA used as a station identifier with Korman’s permission at the time.
- WQBA paid Korman a one-time fee for writing the lyrics; no royalties or residual payments were made for later broadcasts.
- In 1979, Korman ended her business relationship with WQBA.
- On appeal, Korman argued she had told WQBA the license would end when their relationship ended, but her attorney had conceded in the district court that there was no evidence of any shared understanding about the duration of the implied license; the Eleventh Circuit held her to that concession.
- In 1993, Korman heard WQBA still playing the jingle, left a message for the general manager demanding the station stop using it unless it negotiated compensation, and received no response.
- After the 1993 broadcast, Korman applied for and obtained a copyright registration for the jingle.
- In May 1995, Korman again heard the jingle on WQBA and sent a letter referencing her copyright certificate, accusing the station of infringement, and offering to negotiate; the station did not reach an agreement and continued airing the jingle.
- Korman sued HBC Florida for copyright infringement; the district court granted summary judgment to HBC, reasoning that § 203 prevented termination of the license for 35 years.

## Issues

1. Did Korman grant WQBA an implied nonexclusive license to broadcast the jingle?
2. Does 17 U.S.C. § 203 apply to implied nonexclusive copyright licenses “executed” after January 1, 1978?
3. Does § 203(a)(3) bar a licensor from ending an implied nonexclusive license of indefinite duration before the 35-year statutory termination window, when state contract law would allow earlier termination?

## Decision

- The Eleventh Circuit agreed that Korman’s conduct created an implied nonexclusive license allowing WQBA to use the jingle.
- The court held § 203 applies to implied nonexclusive licenses executed after January 1, 1978; a nonexclusive license need not be in writing.
- The court rejected the district court’s view that § 203 imposes a mandatory 35-year minimum duration on licenses that are silent as to term.
- Because § 203 provides an author an additional federal termination right after 35 years but does not prevent earlier termination under state-law contract principles for an indefinite license, the grant of summary judgment was reversed.
- The case was remanded for further proceedings to determine, under applicable state law and the facts, whether the implied license was effectively terminated and whether continued broadcasts infringed.

## Legal Principles

- A nonexclusive copyright license may be granted orally or implied from the parties’ conduct; a writing is required for transfers of copyright ownership and exclusive licenses, not for nonexclusive licenses.
- Where an author creates a work for a user, allows the user to exploit it, and accepts payment, the author ordinarily cannot later deny that a nonexclusive license was granted.
- Section 203 applies to “exclusive or nonexclusive” grants executed on or after January 1, 1978, and its text is not limited to written grants; implied nonexclusive grants can be “executed” through conduct.
- Section 204’s writing requirement addresses transfers of copyright ownership and does not invalidate implied nonexclusive licenses.
- Section 203(a)(3) sets the timing for exercising the federal statutory termination right (a five-year window beginning 35 years after execution), but it does not create a federal minimum term that prevents earlier termination available under state contract law when the parties did not specify duration.
- Summary judgment is reviewed de novo; reversal is warranted where the district court applied an incorrect legal rule about whether and when a license can end.

## Conclusion

Korman granted WQBA an implied nonexclusive license to air her jingle, and § 203 applies to implied nonexclusive licenses executed after January 1, 1978, but § 203 does not require that a silent, indefinite license remain in force for at least 35 years; instead, state contract law may permit earlier termination, so the Eleventh Circuit reversed the summary judgment for HBC Florida and remanded to determine whether Korman terminated the license and whether the station’s continued broadcasts were infringing.


Korman v. HBC Florida, 182 F.3d 1291 (1999)