FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE RAY CHARLES FOUNDATION, a

California Corporation,

Plaintiff-Appellant,

v.

RAENEE ROBINSON, an individual;

RAY CHARLES ROBINSON, JR., an

individual; SHEILA ROBINSON, an

individual; DAVID ROBINSON, an

individual; ROBERT F. ROBINSON, an

individual; REATHA BUTLER, an

individual; and ROBYN MOFFETT, an

individual,

Defendants-Appellees.

No. 13-55421

D.C. No.

2:12-cv-02725-

ABC-FFM

OPINION

Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Argued and Submitted

February 12, 2015—Pasadena, California

Filed July 31, 2015
2 THE RAY CHARLES FOUND. V. ROBINSON

Before: David Bryan Sentelle,* Morgan Christen,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Christen

SUMMARY**

Copyright

Reversing the district court’s dismissal for lack of

jurisdiction, the panel held that the Ray Charles Foundation,

the sole beneficiary of Ray Charles’s estate, had standing to

challenge the validity and effectiveness of notices of

termination of copyright grants conferred by Charles to the

predecessor of Warner/Chappell Music.

The panel held that the Foundation had Article III

standing and that the suit was ripe. The panel held that the

Foundation did not have standing to challenge the termination

notices as a beneficial owner. Nonetheless, the Foundation

was a real party in interest because the termination notices

affected its right to royalties, and its claims fell within the

statutory zone of interests. Accordingly, it had standing to

sue to challenge whether the underlying works were works

made for hire and thus not subject to the termination

* The Honorable David Bryan Sentelle, Senior Circuit Judge for the U.S.

Court of Appeals for the District of Columbia Circuit, sitting by

designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
THE RAY CHARLES FOUND. V. ROBINSON 3

provisions of 17 U.S.C. §§ 203 and 304(c). The panel

remanded the case for further proceedings.

COUNSEL

Mark Daniel Passin (argued), Yakub Hazzard, and Daniel G.

Stone, Robins, Kaplan, Miller & Ciresi LLP, Los Angeles,

California, for Plaintiff-Appellant.

Marc Toberoff (argued), Toberoff & Associates, P.C.,

Malibu, California, for Defendants-Appellees.
4 THE RAY CHARLES FOUND. V. ROBINSON

OPINION

CHRISTEN, Circuit Judge:

When music legend Ray Charles died, he left behind

remarkable legacies in music and philanthropy. This appeal

arises from the intersection of the two. Seven of Charles’s

heirs purported to terminate copyright grants that Charles

conferred while he was alive. The Ray Charles Foundation,

the sole beneficiary of Charles’s estate, filed suit to challenge

the terminations. The district court dismissed the suit for lack

of jurisdiction, and the Foundation now appeals. We reverse

the district court’s order and remand for further proceedings.

BACKGROUND1

I. Charles’s Copyright Interests

In the 1950s, RayCharles Robinson, young and early into

his career, entered into several contracts with music publisher

Atlantic Records and its subsidiary, Progressive Music

Publishing Co. The contracts indicated that Charles was an

employee of the publishers, who owned all copyright interests

in Charles’s work. Under the contracts, Charles was entitled

to advance payments and future royalties.

By 1980, Charles had achieved considerable success and

renown. That year, he renegotiated his copyright grants with

1 Because the Foundation appeals the district court’s decision on a

motion to dismiss, we “accept all allegations of fact in the complaint as

true and construe them in the light most favorable to the plaintiff[].” 

Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.

2003).
THE RAY CHARLES FOUND. V. ROBINSON 5

Progressive’s successor in interest. The renegotiation

pertained to songs Charles had previously conveyed to

Progressive, as well as published and unpublished works that

he had not yet assigned to any publisher. The 1980 grant

entitled Charles to royalties and another advance payment.

Charles founded a nonprofit corporation now known as

The Ray Charles Foundation. The Foundation was

established for “scientific, educational[,] and charitable

purposes.” It provides research and scholarship grants for the

benefit of deaf, blind, and underprivileged youths.

At the time of his death, Charles had twelve adult

children, seven of whom are involved in this case as

Defendants-Appellees.2In 2002, Charles informed all of his

heirs that he would establish irrevocable trusts of $500,000

for each of them if they agreed to waive further claims to his

estate. Each of the heirs, including all of the Terminating

Heirs, signed a contract providing:

My father, RayCharles Robinson, has told me

that he will set up an irrevocable trust for my

benefit, to be funded with $500,000. This gift

is my entire inheritance from him and I

understand that I will not inherit anything

further under my father’s estate plan and that

I am waiving any right to make a claim

against his estate.

2 We use the term “Terminating Heirs” to refer to the seven DefendantsAppellees who served the termination notices. We use “Charles’s heirs”

to refer to all twelve of the artist’s adult children, including those not

involved in this suit.
6 THE RAY CHARLES FOUND. V. ROBINSON

Charles passed away in 2004. According to the

complaint, Charles’s will named the Foundation as his sole

beneficiary and devised “all of [Charles’s] rights in his works

and rights under contracts, including the compositions that

are the subject of this action, to The Foundation.” The

Foundation is precluded from accepting private donations. It

relies on royalties from Charles’s works to fulfill “the wishes

of Ray Charles and [t]he Foundation’s purpose.”

II. Relevant Statutory Provisions

Sections 203 and 304 of the Copyright Act of 1976

govern termination of copyright grants. 17 U.S.C. §§ 203,

304(c), 304(d). The provisions were designed to “safeguard[]

authors against unremunerative transfers . . . needed because

of the unequal bargaining position of authors, resulting in part

from the impossibility of determining a work’s value until it

has been exploited.” H.R. Rep. No. 94-1476, at 124 (1976);

see also 3 Melville B. Nimmer & David Nimmer, Nimmer on

Copyright § 11.07[E][4][b] (Matthew Bender, rev. ed. 2014)

(observing that the provisions were intended to protect

“authors and their spouses, children, and grandchildren

against unremunerative transfers and improve their

bargaining position”).

Section 203 pertains to grants and transfers made after

1978: “In the case of any work other than a work made for

hire,

[3]

the . . . grant of . . . any right under a copyright,

 

3

 A work made for hire is:

(1) a work prepared by an employee within the scope of

his or her employment; or
THE RAY CHARLES FOUND. V. ROBINSON 7

executed by the author . . . , otherwise than by will, is subject

to termination under [specified] conditions.” 17 U.S.C.

§ 203(a) (emphasis added). Under this statute, termination of

a copyright grant may be effected at any time during a fiveyear period, starting 35 years after the execution of the grant. 

Id. § 203(a)(3). Because the 35-year period began with grants

made in 1978, opportunities to execute termination notices

under § 203 started to accrue “for the first time on January 1,

2013.” U.S. Copyright Office, Analysis of Gap Grants under

the Termination Provisions of Title 17 at 8 (Dec. 7, 2010),

available at http://www.copyright.gov/reports/gap-grantanalysis.pdf.

Subsection 304(c) covers grants made before 1978:

In the case of any copyright subsisting in

either its first or renewal term on January 1,

1978, other than a copyright in a work made

for hire, the exclusive or nonexclusive grant

of a transfer or license of the renewal

copyright or any right under it, executed

before January 1, 1978, by any of the persons

designated by subsection (a)(1)(C) of this

(2) a work specially ordered or commissioned for use as

a contribution to a collective work, as a part of a motion

picture or other audiovisual work, as a translation, as a

supplementary work, as a compilation, as an

instructional text, as a test, as answer material for a test,

or as an atlas, if the parties expressly agree in a written

instrument signed by them that the work shall be

considered a work made for hire.

17 U.S.C. § 101.
8 THE RAY CHARLES FOUND. V. ROBINSON

section, otherwise than by will, is subject to

termination under [specified] conditions.

17 U.S.C. § 304(c) (emphasis added). The subsection is “a

close but not exact counterpart of section 203.” See H.R.

Rep. No. 94-1476, at 140. Under § 304(c), terminations may

be effected during a five-year period starting 56 years from

the date the copyright was secured, or January 1, 1978,

whichever is later. 17 U.S.C. § 304(c)(3). Most existing

case law on copyright termination pertains to § 304(c)

because opportunities to terminate copyright grants became

ripe under this statute earlier than grants subject to § 203.4

The Copyright Office’s regulations provide:

A copy of the notice of termination shall be

recorded in the Copyright Office before the

effective date of termination, as a condition to

its taking effect. However, the fact that the

Office has recorded the notice does not mean

that it is otherwise sufficient under the law. 

Recordation of a notice of termination by the

Copyright Office is without prejudice to any

party claiming that the legal and formal

requirements for issuing a valid notice have

not been met, including before a court of

competent jurisdiction.

4 There are some other distinctions between the termination rights

conferred under § 203 and § 304(c), but they are not relevant to this

appeal. See H.R. Rep. No. 94-1476 at 140–42 (discussing differences). 

A third termination provision not relevant to this case exists in 17 U.S.C.

§ 304(d).
THE RAY CHARLES FOUND. V. ROBINSON 9

37 C.F.R. § 201.10(f)(6). Effective termination causes “all

rights . . . that were covered by the terminated grants [to]

revert to the author, authors, and other persons owning

termination interests [as provided in previous clauses].” 

17 U.S.C. § 203(b). A deceased “author’s surviving children

. . . own the author’s entire termination interest unless there

is a widow or widower . . . .” Id. § 203(a)(2)(B); see also id.

§ 304(c)(2)(B).

Both § 203 and § 304(c) are silent on who may challenge

the validity of termination notices.

III. The Subject Termination Notices

In March 2010, the Terminating Heirs filed 39 notices

under § 203 and § 304(c) to terminate pre- and post-1978

grants authorized by Charles. They served the notices on

various parties, including Warner/Chappell Music,

Progressive’s successor in interest. The notices served on

Warner/Chappell pertain to the 51 compositions at issue in

this case. Those works include some of Charles’s greatest

hits, such as “I Got A Woman,” “A Fool for You,”

“Blackjack,” “Leave My Woman Alone,” and “Hallelujah, I

Love Her So.” The notices have staggered effective dates,

ranging from April 1, 2012 through September 28, 2019. 

Each notice specifies a date on which it purports to terminate

all rights tied to the copyright grants, at which point those

rights will revert in proportionate shares to each of Charles’s

heirs. See 17 U.S.C. §§ 203(b), 304(c)(6). The Terminating

Heirs issued multiple termination notices for some of the

compositions, thereby purporting to subject individual works

to multiple termination dates. For example, three termination

notices were issued for the song “Mary Ann,” each asserting
10 THE RAY CHARLES FOUND. V. ROBINSON

a different termination date: April 1, 2012, November 15,

2015, and May 3, 2019.

The Copyright Office recorded the termination notices in

January 2012. See U.S. Copyright Office, Public Catalog,

Recorded Document Nos. V3603D883 (§ 203 notices),

V3603D884–898, V3603D904–905, V3603D909–910,

V3603D914, V3603D916–917, V3603D919, V3603D924,

V3604D349 (§ 304 notices); see also Harris v. Cnty. of

Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (“We may take

judicial notice of undisputed matters of public record.”).

IV. District Court Proceedings

In March 2012, the Foundation brought suit to challenge

the termination notices. Its complaint asserts state law claims

for breach of contract and breach of the implied covenant of

good faith and fair dealing, and a federal claim for

declaratory and injunctive relief. The district court granted

the Terminating Heirs’ motion to dismiss the state law claims

under California’s anti-SLAPP statute, and the Foundation

does not appeal that ruling.

The federal claim is the only one at issue in this appeal. 

In it, the Foundation requests “a judicial determination of the

validity and effectiveness of the termination notices and its

rights and obligations.” It also seeks a declaratory judgment

establishing:

(1) the compositions at issue are excluded

from the termination provisions because they

were works made for hire; (2) if the

compositions were not works made for hire,

then the 1980 agreement constituted a
THE RAY CHARLES FOUND. V. ROBINSON 11

renegotiation of the transfer of most of the

songs, satisfying the statutory right of

termination; (3) the notices pertaining to

unpublished works are invalid because the

right of publication of those songs were not

exercised within five years of the 1980

agreement; (4) the 1980 agreement constituted

a new transfer and all termination deadlines

should be calculated from that date; and

(5) the Court should determine which of the

multiple termination notices for each

composition is operative, if any.

[5]

Further, the Foundation seeks to enjoin the Terminating Heirs

from claiming that they are, or will become, the rightful

owners of the copyright interests; entering any agreement that

would transfer those interests; and using the compositions in

ways not permitted by parties who do not own copyright

interests.

The Terminating Heirs moved to dismiss. They argued

that the Foundation lacked standing to bring its federal claim

because it was really asserting the rights of Warner/Chappell,

Progressive’s successor in interest and the current copyright

owner. The Terminating Heirs relied in part on the

inalienable nature of termination rights, which cannot be

waived through contract. See 17 U.S.C. §§ 203(a);

304(c)(5)–(6)(B). They highlighted the fact that Congress

enacted the current statutory termination provisions when it

5 The complaint also seeks a declaration that the Terminating Heirs

breached their contracts withCharles. Because the district court dismissed

the state law contract claim, it also dismissed the request for that

declaration. The Foundation does not appeal these decisions.
12 THE RAY CHARLES FOUND. V. ROBINSON

extended copyright renewal terms because it intended to

benefit authors and their statutory heirs, not grantees. See

H.R. Rep. No. 94-1476 at 140. In opposition, the Foundation

asserted that it alleges injury to itself, and that there is no

authority supporting the Terminating Heirs’ position that

copyright ownership is a prerequisite for challenging a

termination notice.

During oral argument on the motion to dismiss, the

Foundation alternatively argued that even if the 51 works

were not created as works made for hire, the Foundation is a

beneficial owner6 with standing to sue for copyright

infringement and that it should therefore have standing to

challenge the termination notices. The Terminating Heirs

argued that the concept of beneficial ownership is not

relevant here because beneficial ownership pertains only to

copyright infringement. After oral argument, the district

court ordered supplemental briefing on two issues:

(1) Assuming that the works at issue were not

works made for hire and the Foundation is a

“beneficial owner” of the copyrights, does the

Foundation have standing under the Copyright

Act to challenge the termination notices under

§§ 304(c) and 203(a) as a “grantee” of an

“exclusive or nonexclusive grant of a transfer

or license” of any right under the copyrights?

6 Beneficial owners include, “for example, an author who had parted

with legal title to the copyright in exchange for percentage royalties based

on sales or license fees.” Warren v. Fox Family Worldwide, Inc.,

328 F.3d 1136, 1144 (9th Cir. 2003) (quoting H.R. Rep. No. 94-1476, at

159).
THE RAY CHARLES FOUND. V. ROBINSON 13

(2) Given the allegations in the current

complaint, can the Foundation allege facts to

support a claim that the works were not works

made for hire consistent with Rule 11?

After the parties filed their supplemental briefs, the

district court issued an order granting the motion to dismiss,

concluding that the Foundation lacked standing to bring this

action. The court first observed that the Terminating Heirs

did not challenge the Foundation’s constitutional standing

and “the Foundation has at least plausibly alleged that it

exists here.” The court then moved to what it termed

“prudential standing.” Applying the zone-of-interests test,

the court concluded that the Foundation’s asserted interests

were not among those protected by § 203 and § 304(c). The

court reasoned: “Those sections do not define who may

challenge termination notices, although, by their terms, they

only contemplate that certain parties will be involved in the

termination process.” The court noted that the sections do not

mention parties that acquire by bequest the right to receive

future royalty streams. The district court concluded that this

“indicate[s] that only authors, statutory heirs owning a

termination interest, and grantees of transfers and their

successors fall within the ‘zone of interests’ Congress

contemplated in enacting these provisions.”

Thus, the court reasoned that the Foundation could only

claim third-party standing because it was “only asserting

Warner/Chappell’s interests in the termination notices,” not

its own. The district court did not address the Foundation’s

interest in the continued receipt of royalties. Because the

Foundation did not show that it had a close relationship with

Warner/Chappell, or that Warner/Chappell was incapable of

protecting its own interests, the court concluded that the
14 THE RAY CHARLES FOUND. V. ROBINSON

Foundation did not have third-party standing to challenge the

termination notices. See Powers v. Ohio, 499 U.S. 400,

410–11 (1991) (“We have recognized the right of litigants to

bring actions on behalf of third parties, provided three

important criteria are satisfied: The litigant must have

suffered an injury in fact thus giving him or her a sufficiently

concrete interest in the outcome of the issue in dispute; the

litigant must have a close relation to the third party; and there

must exist some hindrance to the third party’s ability to

protect his or her own interests.” (citations and internal

quotation marks omitted)).

In response to the Foundation’s alternative theory that it

has standing as a beneficial owner of the copyright interests,

the district court concluded that because the Foundation’s

complaint alleged that the compositions were created as

works for hire, it was not a beneficial owner and thus did not

have standing to challenge the termination notices.7 The

court denied leave to amend, pretermitting whether the

Foundation could amend its complaint to allege that the

compositions were not works made for hire because in either

event, the Foundation’s interests did not fall within the

termination provisions’ zone of interests, and the Foundation

lacked third-party standing to assert the interests of

Warner/Chappell.

The Foundation timely appealed. We have jurisdiction

under 28 U.S.C. § 1291, and we reverse the district court’s

decision.

7 A creator of a work made for hire does not qualify as a beneficial

owner even if he or she is entitled to royalties. See Warren, 328 F.3d at

1144–45.
THE RAY CHARLES FOUND. V. ROBINSON 15

STANDARD OF REVIEW

“We review de novo a district court’s order dismissing a

complaint for lack of jurisdiction under Rule 12(b)(1).” 

Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139

(9th Cir. 2003). At this stage, the Foundation “need only

show that the facts alleged, if proved, would confer standing

upon” it. Id. at 1140.

ANALYSIS

There is no challenge to the Foundation’s Article III

standing. The “irreducible constitutional minimum of

standing” requires that (1) the Foundation suffer a concrete,

particularized, and actual injury in fact; (2) there be “a causal

connection between the injury and the conduct complained

of”; and (3) a favorable decision will likely redress that

injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61

(1992). The Foundation’s complaint satisfies these

requirements: it establishes that the Foundation relies on

royalties from the copyright grants; the Terminating Heirs’

notices sought to terminate those grants; the terminations, if

valid, would deprive the Foundation of its income stream; and

a declaration of the terminations’ invalidity would redress

that deprivation.

Although neither party argued ripeness, “it is our duty to

consider sua sponte whether [a suit] is ripe, because ‘the

question of ripeness goes to our subject matter jurisdiction to

hear the case.’” Haw. Newspaper Agency v. Bronster,

103 F.3d 742, 745 (9th Cir. 1996) (alteration omitted)

(quoting Shelter Creek Dev. Corp. v. City of Oxnard,

838 F.2d 375, 377 (9th Cir. 1988)); see also Ctr. for
16 THE RAY CHARLES FOUND. V. ROBINSON

Biological Diversity v. Kempthorne, 588 F.3d 701, 708 (9th

Cir. 2009) (“[R]ipeness . . . is not waivable.”).

The Foundation’s suit is ripe. The Foundation’s claims

pertain to termination notices for grants governing 51

different works, executed in different contracts, at different

times. Termination notices do not automatically terminate

grants; the effective dates of termination depend on the date

of each grant and the validity of the notices. See 17 U.S.C.

§§ 203(a)(3), 304(c). The Terminating Heirs issued the

termination notices in March 2010, the Copyright Office

recorded the notices in January 2012, and the earliest asserted

termination date passed on April 1, 2012. That asserted date

pertained to at least seven of Charles’s works, including “I

Got A Woman,” one of Charles’s most famous songs. The

Foundation filed its complaint on March 28, 2012, and the

district court granted the Terminating Heirs’ motion to

dismiss on January 25, 2013. The asserted termination dates

for 12 of the 51 works had passed by the time of the district

court’s order, and the dates for a total of 23 works have

elapsed as of the issuance of this opinion.

The Foundation alleges that the notices of termination

immediately clouded its ability to assess its future income

stream and to rely on the royalties. Its complaint presents

questions regarding the nature of the underlying works, such

as whether they were works made for hire, and if so, when

their respective termination dates would be effective. Review

of these questions does not require us to engage in abstract

inquiries about speculative injuries. See Wolfson v. Brammer,

616 F.3d 1045, 1057 (9th Cir. 2010) (“The ripeness doctrine

is peculiarly a question of timing, designed to separate

matters that are premature for review because the injury is

speculative and may never occur from those cases that are
THE RAY CHARLES FOUND. V. ROBINSON 17

appropriate for federal court action. Through avoidance of

premature adjudication, the ripeness doctrine prevents courts

from becoming entangled in abstract disagreements.”

(alteration, citations, and internal quotation marks omitted));

see also id. at 1058 (identifying the question of ripeness as

“whether the issues presented are ‘definite and concrete, not

hypothetical or abstract’” (quoting Thomas v. Anchorage

Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000)

(en banc))). We accept as true the Foundation’s allegation

that the effects of the termination notices “have been felt in

a concrete way” because the notices have “created an

enormous cloud over the future copyright ownership” of the

51 works and made it “very difficult, if not impossible, to

exploit the valuable copyrighted assets.” The Foundation’s

complaint is therefore not premature. It would be an

inefficient use of judicial resources to compel the Foundation

to file a different suit after each termination date has passed.

We recognize that, as in cases in which suits were found

unripe for adjudication, the record contains no determination

by the Copyright Office of the validity of the termination

notices. See Smith v. Casey, 741 F.3d 1236, 1244–45 (11th

Cir. 2014). But the parties made clear in the district court

that “there [i]s nothing pending before the Copyright Office”

because the Office does not typically hold proceedings to

adjudicate the validity of termination notices. The Copyright

Office has expressly stated “it does not issue or enforce

notices of termination,” but “only serves as an office of

public record for such documents.” Compendium of

Copyright Office Practices III § 2305 (2014). “The fact that

a document has been recorded is not a determination by the

U.S. Copyright Office concerning the validity or the effect of

that document. That determination can only be made by a

court of law.” Id. (emphasis added). And “the fact that the
18 THE RAY CHARLES FOUND. V. ROBINSON

[Copyright] Office has recorded the notice does not mean that

it is otherwise sufficient under the law”; recordation “is

without prejudice to any party claiming that the legal and

formal requirements for issuing a valid notice have not been

met, including before a court of competent jurisdiction.” 37

C.F.R. § 201.10(f)(6).

Satisfied that this suit meets the threshold requirements of

constitutional standing and ripeness, we proceed to the only

remaining issue: whether the Foundation may sue to

challenge the termination notices.

I.

The Foundation argues that it has standing to challenge

the termination notices as a beneficial owner. It bases this

argument on its status as the sole beneficiary of Charles’s

will.8 The Foundation reasons that because the Copyright Act

accords standing to beneficial owners in the context of

infringement, beneficial owners have standing in the context

of termination. We disagree. The term “beneficial owner”

comes from 17 U.S.C. § 501, which is titled “Infringement of

copyright.” Subsection 501(b) provides that a beneficial

owner is entitled “to institute an action for any infringement.”

 See also Silvers v. Sony Pictures Entm’t, 402 F.3d 881, 885

(9th Cir. 2005) (en banc) (reasoning that only a legal or

beneficial owner may sue for infringement). The district

8

If some or all of the works were not made for hire, then Charles was

likely a beneficial owner of those works because he would have been “an

author who had parted with legal title to the copyright in exchange for

percentage royalties based on sales or license fees.” Warren v. Fox Family

Worldwide, Inc., 328 F.3d 1136, 1144 (9th Cir. 2003) (quoting H.R. Rep.

No. 94-1476, at 159) (internal quotation marks omitted).
THE RAY CHARLES FOUND. V. ROBINSON 19

court relied in part on the concept of beneficial ownership

when it granted the motion to dismiss, but the Foundation’s

claims are about termination of copyright grants, not

copyright infringement. The argument that the Foundation

may be a beneficial owner lends no support to its claim to

standing.

II.

The Terminating Heirs argue that the Foundation must

satisfy the requirements for third-party standing because the

complaint actually asserts the interests of Warner/Chappell. 

The Foundation argues that it is a “real party in interest and

[that it is] not asserting rights of a third party.” We agree

with the Foundation.

Historically, courts have treated the limitation on thirdparty standing as a prudential principle that requires plaintiffs

to assert their own legal rights. See Erwin Chemerinsky,

Federal Jurisdiction § 2.3.4 (6th ed. 2012). “[E]ven when the

plaintiff has alleged injury sufficient to meet the ‘case or

controversy’ requirement, th[e Supreme] Court has held that

the plaintiff generally must assert his own legal rights and

interests, and cannot rest his claim to relief on the legal rights

or interests of third parties.”9 Warth v. Seldin, 422 U.S. 490,

9 Lexmark International, Inc. v. Static Control Components, Inc., 134 S.

Ct. 1377 (2014), removed the zone-of-interests inquiry fromthe prudential

standing doctrine, but Lexmark did not pertain to third-party standing. Id.

at 1387 n.3 (“This case does not present any issue of third-party standing,

and consideration ofthat doctrine’s proper place in the standing firmament

can await another day.”). We conclude, in unison with all other courts to

have spoken on the issue, that the third-party-standing doctrine continues

to remain in the realm of prudential standing. See, e.g., HomeAway Inc.

v. City & Cnty. of S.F., No. 14-cv-04859-JCS, 2015 WL 367121, at *7
20 THE RAY CHARLES FOUND. V. ROBINSON

499 (1975). This rule ensures that “plaintiffs possess such a

personal stake in the outcome of the controversy as to assure

that concrete adverseness which sharpens the presentation of

issues upon which the court so largely depends for

illumination of difficult constitutional [or statutory]

questions.” Thinket Ink Info. Res., Inc. v. Sun Microsystems,

Inc., 368 F.3d 1053, 1057 (9th Cir. 2004) (internal quotation

marks omitted).

It is undisputed that copyright ownership lies with

Warner/Chappell, but just as the termination notices affect

Warner/Chappell’s ownership of copyrights, they also

directly affect the Foundation’s right to royalties. See

17 U.S.C. §§ 203(b), 304(c)(6); Larry Spier, Inc. v. Bourne

Co., 953 F.2d 774, 780 (2d Cir. 1992). The Foundation is the

sole recipient of royalties flowing from Charles’s copyright

grants and effective termination would deprive it of the right

to receive prospective royalties. See Larry Spier, 953 F.2d at

780. We thus have little difficulty concluding that the

Foundation is litigating its own stake in this controversy.

This conclusion is buttressed by comparing the

Foundation’s interests to Warner/Chappell’s. The publisher’s

interests will be prejudiced only if Charles’s heirs are

(N.D. Cal. Jan. 27, 2015) (unpublished) (declining to extend “Lexmark to

invalidate a prudential standing doctrine that it explicitly did not reach,”

and observing that the holding “is consistent with a number of other courts

that have interpreted Lexmark as leaving the prudential doctrine of thirdparty standing unaffected”); Chandler & Newville v. Quality Loan Serv.

Corp. of Wash., No. 03:13-cv-02014-ST, 2014 WL2526564, at *4 (D. Or.

Jun. 3, 2014) (unpublished) (“Because Lexmark did ‘not present any issue

of third-party standing,’ the Court did not decide the ‘doctrine’s proper

place in the standing firmament,’ leaving it as part of the prudential

standing inquiry.”).
THE RAY CHARLES FOUND. V. ROBINSON 21

successful in their efforts to terminate the existing grants and

then either agree to grant copyright ownership to another

publisher, or renegotiate grants with Warner/Chappell on

terms less favorable to the publisher than the terms of the

existing grants. Otherwise, it makes no difference to

Warner/Chappell whether it continues to pay royalties to the

Foundation under the current grants, or to Charles’s heirs

under new grants. In their brief on appeal, the Terminating

Heirs recognize that if they decide to renegotiate grants with

Warner/Chappell, the publisher’s interests will be largely

unaffected: “A terminated grantee may well be more

interested in maintaining an amicable relationship with the

terminating author or statutory heir to facilitate re-licensing.” 

Indeed, the statutory termination provisions reflect

Warner/Chappell’s interest in remaining friendly to the

Terminating Heirs, by giving negotiating priority to

terminated grantees:

A further grant, or 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 of the termination. As

an exception, however, an agreement for such

a further grant may be made between [a

majority of the statutory heirs] and the

original grantee or such grantee’s successor in

title, after the notice of termination has been

served as provided by clause (4) of subsection

(a).

17 U.S.C. § 203(b)(4). Because Warner/Chappell’s interests

are not necessarily at risk, it has diminished reason to litigate,

particularlybecause challenging the Terminating Heirs might

endanger its interests.
22 THE RAY CHARLES FOUND. V. ROBINSON

In this case, the party presenting the most concrete

adverseness to the Terminating Heirs is the Foundation. The

Foundation “plainly asserts its own legal rights and interests,

not those of another, thus making immaterial any question

about the jurisdictional character of ‘third-party standing.’” 

See Lifestyle Enter., Inc. v. United States, 751 F.3d 1371,

1376 (Fed. Cir. 2014) (citations omitted).

III.

We now turn to the zone-of-interests test, which looks to

the statutory provisions at issue and asks whether Congress

authorized the plaintiff to sue under them. See Lexmark Int’l,

Inc. v. Static Control Components, Inc., 134 S. Ct. 1377,

1387–90 (2014). The crux of the Foundation’s complaint is

that § 203 and § 304(c) do not apply to the underlying works

because they are works made for hire. See 17 U.S.C.

§§ 203(a) (“In the case of any work other than a work made

for hire . . . .” (emphasis added)), 304(c) (“In the case of any

copyright subsisting in either its first or renewal term on

January 1, 1978, other than a copyright in a work made for

hire . . . .” (emphasis added)). The Terminating Heirs argue

that the Foundation’s suit does not fall in the termination

statutes’ zone of interests because the termination statutes

were intended to benefit authors’ surviving spouses and heirs. 

But this ignores the central premise of the Foundation’s suit,

which is that the termination provisions do not apply at all. 

As the holder of legal rights and interests that will be

truncated if the termination notices are valid, the Foundation

has standing to challenge whether the underlying works are

subject to the termination provisions. If the compositions are

works made for hire, the termination statutes do not apply. 

See 17 U.S.C. §§ 203(a), 304(c). Further, as we explain

below, even if we assume that the compositions are not works
THE RAY CHARLES FOUND. V. ROBINSON 23

made for hire and that the underlying grants are subject to

termination, we would conclude that the Foundation’s suit

falls under the statutory provisions’ zone of interests.

The Supreme Court first articulated the zone-of-interests

test in Association of Data Processing Service Organizations

v. Camp, 397 U.S. 150 (1970). There, the court stated that

standing “concerns, apart from the ‘case’ or ‘controversy’

test, the question whether the interest sought to be protected

by the complainant is arguably within the zone of interests to

be protected or regulated by the statute or constitutional

guarantee in question.” Id. at 153. The Court later explained:

[T]he test denies a right of review if the

plaintiff’s interests are so marginally related

to or inconsistent with the purposes implicit in

the statute that it cannot reasonably be

assumed that Congress intended to permit the

suit. The test is not meant to be especially

demanding; in particular, there need be no

indication of congressional purpose to benefit

the would-be plaintiff.

Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399–400 (1987)

(footnote omitted).

In the past, the Supreme Court has characterized the test

as one pertaining to “prudential standing.” See, e.g., Fed.

Election Comm’n v. Atkins, 524 U.S. 11, 20 (1998); Bennett,

520 U.S. at 163; cf. Erwin Chemerinsky, Federal Jurisdiction

§ 2.3.6 (6th ed. 2012). But in Lexmark International, Inc. v.

Static Control Components, Inc., 134 S. Ct. 1377 (2014), the

Supreme Court rejected the idea that the test bears on

prudential standing or jurisdiction:
24 THE RAY CHARLES FOUND. V. ROBINSON

Although we admittedly have placed that test

under the “prudential” rubric in the past, it

does not belong there . . . . Whether a

plaintiff comes within “the ‘zone of

interests’” is an issue that requires us to

determine, using traditional tools of statutory

interpretation, whether a legislatively

conferred cause of action encompasses a

particular plaintiff’s claim. As Judge

Silberman of the D.C. Circuit recently

observed, “‘prudential standing’ is a

misnomer” as applied to the zone-of-interests

analysis, which asks whether “this particular

class of persons has a right to sue under this

substantive statute.”

Id. at 1387 (alteration and citations omitted). The Court

recast the zone-of-interests inquiry as one of statutory

interpretation, holding that the question is whether a plaintiff

“has a cause of action under the statute.” Id. It further

explained that the “standing” label was misleading because

“‘the absence of a valid (as opposed to arguable) cause of

action does not implicate subject-matter jurisdiction, i.e., the

court’s statutory or constitutional power to adjudicate the

case.’” Id. at 1387, 1388 & n.4 (quoting Verizon Md., Inc. v.

Pub. Serv. Comm’n of Md., 535 U.S. 635, 642–43 (2002));

see also Pit River Tribe v. Bureau of Land Mgmt., —F.3d—,

2015 WL 4393982, at *8 (9th Cir. 2015) (“[T]he [Lexmark]

[C]ourt . . . made clear that whether a plaintiff’s claims are

within a statute’s zone of interests is not a jurisdictional

question.”).

Notably, the Court suggested that a heightened standard

for the zone-of-interests test might apply in non-APA cases:
THE RAY CHARLES FOUND. V. ROBINSON 25

We have made clear, however, that the

breadth of the zone of interests varies

according to the provisions of law at issue, so

that what comes within the zone of interests of

a statute for purposes of obtaining judicial

review of administrative action under the

generous review provisions of the APA may

not do so for other purposes.

Lexmark, 134 S. Ct. at 1389 (quoting Bennett, 520 U.S. at

163) (internal quotation marks omitted). The Court did not

articulate exactly how the zone-of-interests inquiry differs for

non-APA actions like this one, but the above passage does

suggest that the relevant question for such actions is whether

there exists “a valid (as opposed to arguable) cause of

action.” See id. at 1387–89 & n.4. This question bears on

whether a claim may be maintained by the party asserting it,

not the court’s jurisdiction to consider the claim. See id. at

1387.

Lexmark looked to the Lanham Act’s “‘unusual, and

extraordinarily helpful[]’ detailed statement of the statute’s

purposes.” Id. at 1389. The Court observed “the Act’s goal

of protecting persons engaged in commerce within the control

of Congress against unfair competition,” and of redressing

“injuries to business reputation and present and future sales.” 

Id. at 1389–90 (alterations and internal quotation marks

omitted). It thus held that “to come within the zone of

interests in a suit for false advertising under § 1125(a), a

plaintiff must allege an injury to a commercial interest in

reputation or sales.” Id. at 1390.

The Supreme Court also articulated a second requirement

to bring suit for false advertising under § 1125(a) of the
26 THE RAY CHARLES FOUND. V. ROBINSON

Lanham Act. It termed this the proximate cause requirement,

and explained that it “is controlled by the nature of the

statutory cause of action,” and centers on the question

“whether the harm alleged has a sufficiently close connection

to the conduct the statute prohibits.” Id.; see also id. at 1394

(“‘Where the injury alleged is so integral an aspect of the

violation alleged, there can be no question’ that proximate

cause is satisfied.” (alteration omitted) (quoting Blue Shield

of Va. v. McCready, 457 U.S. 465, 479 (1982))). In the

context of the Lanham Act’s prohibition on false advertising

and unfair competition, the Court held “that a plaintiff suing

under § 1125(a) ordinarily must show economic or

reputational injury flowing directly from the deception

wrought by the defendant’s advertising; and that that occurs

when deception of consumers causes them to withhold trade

from the plaintiff.” Id. at 1391. Applying the zone-ofinterests test, the Court held that the plaintiff in Lexmark fell

“within the class of plaintiffs whom Congress authorized to

sue under § 1125(a)” because the plaintiff alleged injuries “to

precisely the sorts of commercial interests the Act protects,”

and because it “adequately alleged proximate causation.” Id.

at 1393–94.

The Copyright Act does not expressly provide for a

private right of action under § 203 and § 304(c), but we

conclude that an implied private cause of action exists under

the termination provisions. The Supreme Court has indicated

that an implied right of action requires that “the statute

manifest[] an intent ‘to create not just a private right but also

a private remedy.’” Gonzaga Univ. v. Doe, 536 U.S. 273, 284

(2002) (quoting Alexander v. Sandoval, 532 U.S. 275, 286

(2001)). A private right and remedy are contemplated by the

termination provisions; the statutes plainlyaccord authors and

statutory heirs the ability to terminate prior grants and
THE RAY CHARLES FOUND. V. ROBINSON 27

recapture copyright ownership for works that were not made

for hire. See 17 U.S.C. §§ 203, 304(c). In contrast to

schemes that can only be enforced by a government agency,

the termination provisions can be enforced by private action. 

See 37 C.F.R. § 201.10(f)(6) (“Recordation . . . is without

prejudice to any party claiming that the legal and formal

requirements for issuing a valid notice have not been met,

including before a court of competent jurisdiction.”).10 Other

courts have entertained suits challenging termination validity

under these statutory provisions. See, e.g., Marvel

Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir. 2013)

(terminated grantee’s challenge of statutory heirs’ § 304(c)

termination notices); Penguin Grp. (USA) Inc. v. Steinbeck,

537 F.3d 193 (2d Cir. 2008) (challenge to statutory heirs’

termination notice asserted by grantee’s assignee); Milne ex

rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036 (9th Cir.

2005) (suit filed by author’s grandchild and prime beneficiary

of trust that received royalties from underlying grant, seeking

declaration that termination notice was valid); Larry Spier,

Inc. v. Bourne Co., 953 F.2d 774 (2d Cir. 1992) (suit between

two publishers: one an assignee of the author’s right to renew,

the other an assignee of the author’s heirs’ copyright

interests, after a termination attempt); Bourne Co. v. MPL

Commc’ns, Inc., 675 F. Supp. 859 (S.D.N.Y. 1987) (suit

between two publishers: the original grantee and a posttermination grantee who received rights through agreement

with the beneficiary of the author’s widow’s estate).

10 The Foundation argues that the Copyright Office’s use of “any party”

instead of “grantee” constitutes an agency interpretation that “any party”

may challenge termination notices. We are not persuaded. This provision

indicates only that recordation of a termination notice does not bar

challenges to the validity of termination notices. It says nothing about

who may bring suit.
28 THE RAY CHARLES FOUND. V. ROBINSON

Because we conclude that there are legislativelyconferred

causes of action under these termination statutes, the next

question is whether the statutory causes of action encompass

the Foundation’s claims. See Lexmark, 134 S. Ct. at 1387. 

We begin with the statutory purposes of the termination

provisions, which were intended “to ‘safeguard authors

against unremunerative transfers’ and improve the

‘bargaining position of the authors’ by giving them a second

chance to negotiate more advantageous grants in their works

after the works had been sufficiently ‘exploited’ to determine

their ‘value.’” Milne, 430 F.3d at 1046 (alteration omitted)

(quoting H.R. Rep. No. 94-1476, at 124). The improved

bargaining position and “more advantageous grants”

generally provide to authors a greater share of the royalties,

which other courts have recognized as “the most valuable part

of the termination rights.” See MPL Commc’ns, Inc., 675 F.

Supp. at 863.

The Foundation’s claim centers on its right to continue

receiving royalties. If it is determined that some or all of the

works are subject to the termination provisions because they

were not made for hire, the Foundation’s ability to maintain

this action to challenge the notices depends upon whether

Congress intended to allow a party receiving royalties under

a contractual assignment or will to challenge the validity of

termination notices.

The Terminating Heirs argue that the interests asserted by

the Foundation in this case are not an ideal match for the

legislative intent of these provisions because the purpose of

§ 203 and § 304(c) was to enhance authors’ bargaining power

and protect their ability to exploit their works. See H.R. Rep.

No. 94-1476, at 124; Milne, 430 F.3d at 1046; MPL

Commc’ns, Inc., 675 F. Supp. at 863. Because the
THE RAY CHARLES FOUND. V. ROBINSON 29

Foundation is neither the grantee nor Charles’s statutory heir,

the Terminating Heirs are correct that the Foundation is not

a party expressly mentioned in the termination statutes. But

whether the Foundation’s interests are explicitly identified in

the statute is not dispositive. Instead, the central question is

whether the Foundation alleges injuries “to precisely the sorts

of . . . interests the Act protects.” Lexmark, 134 S. Ct. at

1393–94 (emphasis added). Because the Terminating Heirs

issued “multiple notices of termination pertaining to the same

compositions, not all of which can possibly be valid,” the

Foundation alleges that the notices make “it very difficult, if

not impossible, to exploit the valuable copyright assets at

issue.” Thus, the Foundation alleges injury to its interest in

continuing to receive the royalty stream generated by

Charles’s works, which is the same interest that the

Terminating Heirs seek to redirect to themselves. This

interest is the one Congress contemplated, regulated, and

protected in enacting the termination provisions. See H.R.

Rep. No. 94-1476, at 124; Milne, 430 F.3d at 1046; MPL

Commc’ns, Inc., 675 F. Supp. at 863. We therefore conclude

that the Foundation does “come[] within the zone of

interests” of § 203 and § 304(c). See Lexmark, 134 S. Ct. at

1387 (internal quotation marks omitted).

Even if we concluded that Congress did not authorize a

party in the Foundation’s position to challenge the validity of

termination notices, the Foundation’s complaint also seeks a

judicial determination establishing when the terminations

come into effect for each of the 51 different works. This

determination is particularly important because the

Terminating Heirs issued duplicate notices with inconsistent

termination dates. As the Foundation argued in the district

court, “even if the Court were to determine that th[e]

terminations are valid and effective, the Foundation would,
30 THE RAY CHARLES FOUND. V. ROBINSON

nonetheless, need a Declaration as to the timing so that it

would know when, [or] if at all, its rights to continue to

receive the writer share of the income might cease to exist.” 

We agree. The Foundation is at least entitled to a declaration

establishing when the right to receive royalties reverts to

Charles’s heirs.

It is unclear whether the Supreme Court intended the

proximate cause test to be part of the zone-of-interests

inquiry. Compare Lexmark, 134 S. Ct. at 1388–90, with id.

at 1390–91 (assessing “Zone of Interests” and “Proximate

Cause” in separate sections). But Lexmark did indicate that

the Court “generally presume[s] that a statutory cause of

action is limited to plaintiffs whose injuries are proximately

caused by violations of the statute”; “Congress . . . is familiar

with the common-law rule” of proximate cause “and does not

mean to displace it sub silentio”; and “federal causes of

action in a variety of contexts [are construed] to incorporate

a requirement of proximate causation.” Id. at 1390.

Proximate cause “bars suits for alleged harm that is ‘too

remote’ from the defendant’s unlawful conduct.” Id.(quoting

Holmes v. Secs. Investor Prot. Corp., 503 U.S. 258, 268–69

(1992)). There is no remoteness here. Termination, if

effective, would directly extinguish the Foundation’s right to

receive prospective royalties from the current grants. Far

from barring the Foundation’s suit, the proximate cause test

suggests that the Foundation is indeed a party “whose injuries

[may have been] proximately caused by violations of the

statute.” See id.
THE RAY CHARLES FOUND. V. ROBINSON 31

CONCLUSION

The Foundation properly asserts its own claims, which

fall within the statutory zone of interests. We therefore

reverse the district court’s judgment and remand for further

proceedings.

REVERSED AND REMANDED.