OPINION AND ORDER James Mtume, a musician, songwriter, activist, and radio personality, brings this action against Sony Music Entertainment (“Sony”) seeking declaratory relief. Doc. 31. Before the Court is Sony’s motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Doc. 41. For the reasons stated below, the motion is GRANTED. I. BACKGROUND A. Statutory Background Under the Copyright Act, there are two avenues by which authors, including songwriters, or their successors, can terminate copyright grants. Section 304 of the Act describes a process for terminating grants that were executed prior to 1978 for works that were copyrighted and created as of January 1, 1978. 17 U.S.C. §304. Section 203 sets forth a termination process for grants that were executed in or after 1978, irrespective of when the work was copyrighted.1 Id. §203. Certain works, however, fit into neither category. These are works that were transferred and/or assigned by an agreement dated before January 1, 1978, but were not created until after this date. They are referred to as “gap works.” Similarly, the term “gap grants” refers to pre-1978 agreements that concern works that were not created until 1978 or later. Because §203 applies only to works with grants that were executed in or after 1978, gap works did not initially fit under §203′s framework. This changed in December 2010, when the Copyright Office opined that §203 would be the relevant provision for gap grants and allowed termination notices for gap grants to be recorded under this provision. U.S. Copyright Office, Analysis of Gap Grants under the Termination Provisions of Title 17, p. i (2010), http://www.copyright.gov/reports/gap-grant-analysis.pdf; 37 C.F.R. §201.10(f)(1)(ii)(C). In doing so, the Copyright Office noted that the recordation of termination notices was “without prejudice to how a court might ultimately rule on whether any particular document qualifies as a notice of termination within the scope of section 203, consistent with longstanding practices for all notices of termination recorded by the Office.” Gap in Termination Provisions, 76 Fed. Reg. 32,316 32,320 (June 6, 2011).2 Parties may terminate grants under §203 five years from “the end of thirty-five years from the date of execution of the grant,” but if the grant “covers the right of publication of the work,” that five-year period begins “at the end of thirty-five years from the date of publication of the work…or at the end of forty years from the date of execution of the grant, whichever term ends earlier.” 17 U.S.C. §203(a)(3). In relevant part, the statute provides that The [termination] notice shall state the effective date of the termination, which shall fall within the [specified five-year period], and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect. Id. §203(a)(4)(A). During this two — to ten-year period and after the termination notice has been served, the grantor may only enter into a valid agreement to make a further grant with the original grantee, or with that grantee’s successor in title. Id. §203(b)(4). According to the legislative history, this period was included in the statute to provide the original grantee additional bargaining power. Though this period was referred to as being “in the nature of a ‘right of first refusal,’” H.R. Rep. No. 94-1476, at 127 (1976), subsequent cases have clarified that the term “right of first refusal” was used imprecisely. See Bourne Co. v. MPL Commc’ns, Inc., 675 F. Supp. 859, 865 (S.D.N.Y. 1987) (“The statute provides merely that an agreement between the terminating party and the terminated grantee prior to the effective date of termination is the only one that is valid and enforceable against the [terminating party]. The statute does not provide that any agreement negotiated by the terminating party must first be offered on the same terms to the terminated grantee, which is what a right of first refusal, as it is commonly understood, would require.”). “The provision does give the terminated grantee,” — in the instant case, Sony — “a preferred competitive position[,] but if the author can afford to wait for competitive offers until after the effective date of termination, he can overcome any advantage the grantee or successor may seek to gain from the preferential position.” Id. at 865-66 (internal quotation marks and citations omitted); see also Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18, 26 (2d Cir. 2015) (“This existing — grantee exception was included in the 1976 Act to give the grantee some advantage over others in obtaining the terminated rights.” (internal quotation marks and citations omitted)). B. Factual Background Mtume is “an award — winning musician, songwriter, activist, and radio personality.” Doc. 31 7. His instant dispute with Sony involves an eight — song album titled Juicy Fruit. Juicy Fruit is a “gap work” because it was released in the United States in 1983 pursuant to an agreement made between Mtume and Zembu Productions, Inc. (“Zembu”) in 1977 (the “1977 Agreement”). Id.
12-16. According to the 1977 Agreement, Mtume “agreed to render, on an exclusive basis, his services as a recording artist, and to deliver to [Zembu] long playing (LP) record albums consisting of master recordings embodying Mtume’s musical performances.” Id. 13. As part of the agreement, Mtume also granted Zembu all rights of copyright to these master recordings. Id. 14. Zembu assigned the 1977 Agreement to CBS Records, Inc. (“CBS”) on August 27, 1979. Id. 15. On June 6, 1983, CBS obtained a copyright registration for all of the recordings on the album. Id.
