F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

T H E R A Y C H A R L E S F O U N D A T I O N , a California Corporation,

Plaintiff-Appellant
,

v

.

R A E N E E R O B I

N S O N , an individual; R A Y C H A R L E S R O B I

N S O N , J R ., an individual; S H E I L

A R O B I N S O N , an individual; D A

V I D R O B I

N S O N , an individual; R O B E R

T F

. R O B I

N S O N , an individual; R E A T H A B U T L E R , an individual; and R O B Y N M O F F E T T , an individual, Defendants-Appellees

. N o. 13-55421

D.C. No. 2:12-cv-02725- AB C-F F M

OPI NI ON

A ppeal from the United States District Court for the Central District of California Audrey B . Collins, District J udg e, Presiding

Arg ued and Submitted F ebruary 1 2, 2015—Pasadena, California

F iled J uly 31, 2015T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 2

B efore: David B r

y a n Sentelle, * Morg an Christen, and Andrew D. Hurwitz
, Circuit J udg es.

Opinion by J udg e Christen

SUMMARY * *

Copyright

R e v e rsing the d istrict court’s dismissal for lack o f jurisdiction, the panel held that the Ray Charles F oundation, the sole beneficiary of Ray Charles’s estat e , h a d standing to challeng e the validity and effecti v e n e ss of n otices o f termina t i on o f copy

rig ht g rants conferred by Charles to the predecessor of W arner/Chappell Music.

Th e panel held that the F oundation had Article I I I

s t a nding and that the suit was ripe. The panel held that the F oundation d id not have standing to challeng e the termination notices as a beneficial owner. Nonetheless, the F oundation

was a real p arty in interest because the termination notices affected its rig ht to roy alties, a n d its claims fell within the statutory z one of interests

. A c c o rding ly
, it had standing to

sue to challeng e wh e t h e r the underly ing works were works made for h ire and thus not subject t o t h e termination

* T h e Ho n orab l e Dav id B ry an Sen telle, Sen io r Circu i t J u d g e f o r th e U .S. Co u rt o f A

pp eals fo r t h e District o f Co lu m b ia Circu it, s ittin g b y d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 3

provisions of 17 U.S.C. §§ 203 and 304(c). The panel remanded the case for further proceeding s.

COUNSEL

Mark Daniel Passin ( arg ued), Y akub Haz z ard, and Daniel G

. Stone, Robins
, K a plan, Miller & Ciresi L L P, L os Ang eles, California, for Plaintiff-Appellant.

Marc Toberoff (arg

ued), Toberoff & A s sociates, P.C., Malibu, California, for Defendants-Appellees.T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 4

OP INION

CHRI STEN, Circuit J udg e:

W h en music leg end Ray Charl e s died, he left behind remarkable leg acies in music and philanthropy . This appeal arises f rom the intersection of the two. Seven o f C h arles’s heirs purported to terminate copy rig ht g rants that C h a rles conferred while he was alive. The Ray Charles F oundation, the sole beneficiary of Charles’s estate, filed suit to challeng e the terminations. The district c ourt dismissed the suit for lack of jurisdiction, and the F o undation now appeals. W e reverse the district court’s order a nd remand for further proceeding s.

BACK G ROUND 1

I. Charles’s Copyright Interests

I n the 1950s, Ray Charles Robinson, y oung and early into his career, entered into several contracts with music publisher Atlanti c R ecords and its subsidiary
, Prog ressive Music Publishing Co. The c o ntracts ind i cated that Charles was an employ e e o f the publishers, who owned all copy rig ht interests in Charles’s work. Under the contracts, Charles was entitled to advance pay

ments and future roy

a lties.

B y 1980, Charles had achieved considerable success a nd

renown. T hat y ear, he r eneg otiated his copy rig ht g rants with

1 B ecau s e t h e Fo u n d atio n ap p eals th e d istrict co u rt’ s d ecisio n o n a

m o tio n to d ism iss, w e “ accep t all alleg atio n s o f f a ct in th e co m

p lain t as tru e an d co n stru e th em i n th e lig h t m o s t f av o rab le to th e plain t i ff[ ]

. ” W a rren v. Fo x Fa mily W

o rld wid e , I n c

. , 3 2 8 F.3 d 1 1 3 6
, 1 1 39 (9 th Cir. 2 0 0 3 ).T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 5

Prog r es sive’s successor in interest. The reneg otiation pertained to song s Charles had previously convey ed to Prog r essive, as well as published a nd unpublished works that he had not y et assig n ed to any publisher. The 1980 g rant entitled Charles to roy alties and another advance pay ment.

Charles founded a nonprofit corpora t i o n now known a s T h e R ay Charles F oundation. The F oundation was established for “scientific, e ducational[ ,] and charitable purposes.” I t provides research and scholarship g rants for the benefit of deaf, blind, and underprivileg ed y ouths.

A t t h e time of his death, Charles had twelve ad u l t children, seven of whom are involved in this case a s Defendants-Appellees. 2 I n 2 0 02, Charles informed a ll o f his he i r s t h at he would establish irrevocable trusts of $500,000 for e ach of them if they ag r eed to waive further claims to his
estate. Each of the heirs, including all of the Terminating Heirs, sig ned a contract providing :

My f ather, Ray Charles Robinson, has told me that h e will set up an irrevocable trust for my benefit, to be funded w ith $500,000. This g ift is my entire inheritance from him and I understand that I wi l l n ot inherit a ny thing further under my father’s estate plan and that I am waiving any rig ht t o m ake a claim
ag ainst his estate.

2 W e u se th e term “ T erm in atin g Heirs” to ref er to th e sev en Def

en d an tsA p pellees w

h o serv ed th e term in atio n n o tices. W e u se “ Ch arles’ s h eirs”
to ref er to all tw elv e o f th e a r tist’ s ad u lt ch ild ren , in clu d in g th ose n o t in v o lv ed in th is su it.T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 6

Charles p assed away i n 2 0 04. According to the

c o m p laint, Charles’s will named the F oundation a s his so l e beneficiary and devised “all o f [ Charles’s] rig hts in his works and rig hts under contracts, i n c luding the compositions that

a r e the subject of this action, to The F oundation.” T h e F oundation is precluded from a ccepting p rivate donations. I t relies on roy alties from Charles’s works to fulfill “the wishes of Ray Charles and [ t] he F oundation’s purpose.”

II. Relevant Statutory P rovisions

Sections 203 and 304 of the Copy rig ht Act of 1976
g overn termination of copy r ig ht g rants. 17 U.S.C. §§ 203, 304(c), 304(d). The provisions were desig ned to “safeg uard[ ] authors ag ainst unremunerative transfers

. . . needed because of the unequal barg aining position of authors, resulting in part from the impossibility

of determining a work’s value until it has been ex ploited.” H.R. Rep. N o. 94-1476, at 124 ( 1 976);

see also 3 Melville B

. Nimmer & David Nimmer, Nimmer on Copy rig ht § 11.07[ E] [ 4 ] [ b] (Matthew B ender, rev. ed. 2 014) (observing that the provisions w ere intended to prot ect “a u thors and their spouses, children, and g randchildren

a g ainst unremunerative transfers and improve th ei r barg a ining position”).

Section 203 pertains t o g r a nts and transfers made a fter 1978: “ I n the case of any w ork o ther than a wo r k m ade for hire
, [ 3 ] the

. . . g rant o f

. . . a n y r ig ht under a copy rig ht,

3 A w o rk m ad e f o r h ire is:

(1 ) a w ork p rep ared b y an em p lo y ee w ith in th e sco p e of h is o r h er em

p lo y m en t; o rT H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 7

ex e c uted by the a

uthor

. . . , otherwise than by will, is subject
to termination under [ specified] conditions.” 1 7 U .S.C. § 203(a) (emphasis added). Under this statute, termination o f

a c o p y r i gh t g rant may be effected at any time during a fivey ear period, starting 35 y ears after the ex ecution of the g rant. Id. § 203(a)(3). B ecause the 35-y ear p eriod beg an with g rants made in 1978, opportunities to ex ecute termination n o tices under § 203 started to accrue “for the first time on J anuary 1, 2013.” U.S. Copy

rig ht Office, Analy sis of Gap Grants under the Termin at i o n Provisions of T itle 17 at 8 (Dec. 7, 2010), available at http://www.copy rig h t.g ov/reports/g ap-g rantanaly sis.pdf.

Subsection 304(c) covers g rants made before 1978:

I n the case of any copy rig ht subsisting in

e i t h e r its first or renewal term on J anuary 1
, 1978, o ther than a copyright in a work made for h ire
, the ex clusive or nonex c lusive g rant

o f a transfer or license of the rene w al
copy r i ght or any rig ht under it, ex ecuted before J anuary 1, 1978, b y any of the persons desig nated by s u b section ( a ) (1)(C) of this

(2 ) a w o rk sp ecially o rd ered o r co m m issio n ed f

o r u se as

a co n trib u tio n to a co llectiv e w o rk
, as a p art of a m o tio n p ictu re o r o th er au d io v isu al w o rk
, as a tran slatio n , as a

su pp lem en tary w o rk
, as a co m p ilatio n , a s an in stru ctio n al tex t, as a test, as an sw er m aterial f o r a test,

o r as an atlas, if th e parties ex pressly ag ree in a w ritten in stru m e n t s ig n ed b y th em th at th e w o rk sh all b e

co n s id ered a w o rk

m ad e f o r h ire.

1 7 U.S.C. § 1 0 1

.T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 8

s ection, otherwise than by will, is subject t o termination under [ specified] conditions.

1 7 U.S.C. § 304(c) (emphasis added). The subsection i s “ a close but not ex act counterpart of section 203.” See H.R. Rep. No. 94-1476, a t 140. Under § 304(c), terminations may be effected during a five-y ear period starting 56 y ears from the d ate the copy

rig ht was secured, or J an u a r y 1, 1978, whichever is l a t er

. 17 U.S.C. § 304(c)(3). Most ex isting

case law on copy

rig ht termination pert ains to § 304(c) because opportunities to terminate c opy rig ht g r a nts became ripe under this statute earlier than g rants subject to § 203. 4

The Copy rig ht Office’s reg

ulations provide:

A copy of the n otice of termination sh a l l be

rec o r d ed in the Copy

rig ht Office before the effective date of termination, as a condition to its taking effect. However, the f a c t that the Office has recorded the notice does not mean t h a t it is otherwise sufficient under the law

. Recordation of a notice of termination by the Copy rig ht Office is without prejudice to an y pa rty claiming that the leg a l and formal requirements for issuing a valid notice have
not b e e n met, including before a court o f competent jurisdiction.

4 T h er e a r e s o m e o th er d i stin ctio n s b etw een th e term in atio n rig h ts

co n f erred u n d er § 20 3 an d § 3 0 4(c), b u t t h ey are n o t relev an t to th is
ap p eal. S ee H.R. Rep

. No

. 9 4

- 14 7 6 at 1 4 0

– 4 2 (d iscu ssin g d if f eren ces). A th i rd term in atio n p ro v i sio n n o t relev an t to th is case ex ists in 1 7 U.S.C. § 3 0 4 (d ).T H E R A Y C H A R L E S F O U N D

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N S O N 9

37 C.F .R. § 201.1 0(f)(6). Effective termination c auses “ all rig hts

. . . t h a t w e re covered by the terminated g rants [ to]
revert to the author, authors, and other persons owning termination interests [ a s provided in previous clauses]

. ” 17 U.S.C. § 2 03(b). A deceased “author’s surviving children

. . . own the author’s entir e termination interest unless there is a widow or widower

. . . .” Id. § 203(a)(2)(B ); see a lso id. § 304(c)(2)(B ).

B oth § 2 03 and § 304(c) a r e silent on who may challeng e the validity

of termination notices.

III. The Subject Term ination Notices

I n March 2010, the T e r m i nating Heirs filed 39 notices under § 203 and § 304(c) to terminate pre- and post-1978
g rants authoriz ed by Charles. They s er v e d the n o tices on

v a r i o u s p a r t i e s , i n cl u d i n g W a r n e r / C h a p p e l l M u s i c , Prog r essive’s successor in interest. The n o t i c es served on W a r ner/Chappell pertain to the 51 comp o s itions at issue in this case. Those works include some of Charles’s g reatest hits, such as “I Got A W oman,” “ A Fo ol for You,” “B lackjack,” “L eave My W oman Alone,” and “Hallelujah, I L ove Her So.” The notices have st ag g ered effective dates,
rang ing from April 1, 2012 throug h S eptember 28, 2019. Each notice specifies a date o n which it purports to terminate

a ll rig h ts tied to the copy r ig ht g rants, at which point tho s e rig hts 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 n otices for som e o f the compositions, thereby purporting to subject individual works
to multiple termination dates. F or ex ample, three termination notices were issued for the song “Mary Ann,” each assertingT H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 10

a d ifferent termination date: A pril 1
, 2012, November 15
, 2015, and May

3, 2019.

The Copy rig ht Office recorded the termination notices in J anuary 2012. See U .S. C o p y r i g ht Office, Public Catalog
, Recorded Document Nos. V3603D883 (§ 203 notices), V 3 6 0 3 D 8 8 4

– 8 9 8
, V 3 6 0 3 D 9 0 4

– 9 0 5
, V 3 6 0 3 D 9 0 9

– 9 1 0
, V 3603D914, V3603D916–917, V3603D919, V3603D924, V3604D349 (§ 304 notices); see a lso Harris v. Cnty. of Orange
, 682 F .3d 1126, 1132 (9th Cir. 2012) ( “W e may take judicial notice of undisputed matters of public record.”).

IV. District Court P roceedings

I n March 2012, the F o undation b roug ht suit to challeng e the termination notices. I ts complaint a sserts state law c laims for breach of contract and breach of the implied covenant of
go o d f aith and fair dealing
, and a federal c laim for declaratory and injunctive relief. The d istrict court g ranted the Terminating Heirs’ motion to dismiss the state law c laims under California’s anti-SL APP statute, a n d the F oundation does not appeal that ruling

.

The federal claim is the only one a t issue in this appeal. I n it, the F o undation requests “a judicial determination of the valid i t y a nd effectiveness of the termination notices and its rig hts a nd oblig ations.” I t also seeks a declaratory judg ment establishing :

(1) the composit i o n s at issue are ex cluded from the termination provisions because they

were w o r ks made for hire; (2) if the compositions w ere not works mad e for hire, then the 1980 ag reeme n t constituted aT H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 11

reneg otiation of the t ransfer of most of the
song s, satisfy ing the statutory r i g ht o f termination; (3) the noti c e s p ertaining to unpublished works a

re invalid because the

r i ght of p ublication of those song s were n o t

ex e rcised within f

ive y ea r s of the 1980
agr e e m e n t ; (4) the 1980 ag reement constituted

a new transfer and all termination deadlines

s h ould be calculated from that date; a n d (5) the Court s h ould determine which of the mul t i p l e t e r m i n a t i o n n o t i c es for e ach composition is operative, if any

. [ 5 ]

F urther, the F oundation seeks to e njoin the Terminating Heirs from claiming that they are, or wi ll become, the rig htful

owners of the copy

rig ht interests; entering any ag reement that would transfer those interests; and using the compositions in
way s not permitted by parties who d o not o w n copy rig ht interests.

The Terminating Heirs moved to di s m i s s

. They a rg u ed that the F oundation lacked standing to bring its f ederal claim because it was really asserting the r ig hts of W arner/Chappell, Prog r essive’s successor in interest and the current copy rig ht

o w n er. The Terminating Heirs relied in part on th e inalienable n ature of termination r ig hts, whi c h c annot be waived throug h contract. See 17 U.S.C. §§ 203(a); 304(c)(5)–(6)(B ). They hig hli g hted the fact that Cong ress

e n a cted the current statutory termination provisions when i t

5 T h e co m

plain t also seek s a d ecl a r atio n th at th e T erm in atin g Heirs b reach ed th eir co n tracts w ith Ch arles. B ecau se th e d istrict co u rt d i s m issed th e state law co n tract c l a i m , it also d ism i ssed th e req u est f o r th at d eclaratio n . T h e Fo u n d atio n d o es n o t ap p eal th ese d ecisio n s.T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 12

ex tende d copy

rig ht renewal terms because it intended to benefit authors and their statutory heirs, not g ran t e e s

. See H.R. Rep. N o. 94-1476 at 140. I n opposition, the F oundation asserted that it alleg e s injury to itself, and tha t there is no authority supporting the Terminating Heirs’ position that
copy rig ht ownership is a prerequisite for challeng ing a termination notice.

During o ral arg ument on the motion to d i s miss, the F oundation alternatively arg u e d that even if the 5 1 works
were not created as works made for hire, the F oundation is a beneficial owner 6 with standing to sue f or copy righ t infring ement and that it should therefore hav e standing to challeng e the termination notices

. T he Terminating Heirs
arg ued that the con c ep t of beneficial ownership is not relevant here because beneficial ownership pertains o n l y to copy rig ht infring ement. After oral arg ument, the district court ordered supplemental briefing on two issues:

(1) Assuming that the works at issue were not works made for hire and the F ound a t i o n is a “beneficial owner” of the copy r ig hts, does the F o u n d a tion have standing under the Copy rig h t Act to c halleng e the termination notices under §§ 304(c) and 203(a) a s a “g rantee” of an “ex clusive or nonex clusive g rant of a transfer

or license” of any

rig ht under the copy

rig hts?

6 B en ef i c i a l o w n e r s in clu d e, “ f

or ex am p le, an au th o r w

h o h ad parted

w ith leg al title t o t

h e co p y rig h t in ex ch an g e f

o r p ercen t ag e ro y alties b ased

o n sales or licen s e f

ees.” W a rren v. Fo x Fa mily W o rld wid e, In c. , 3 2 8 F.3 d 1 1 3 6, 1 1 4 4 (9 th Cir. 2 0 0 3) (q u o tin g H.R. Rep

. No

. 9 4

- 1 4 7 6
, at 1 5 9 ).T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 13

(2) Given the a ll e g ations in the current complaint, can the F o undation alleg e 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 g ranting the motion to dismiss, concluding that the F oundation lacked standing to bring this action. The court first observed tha t t h e T erminating Heirs did not c halleng e the F oundation’s constitutiona l standing and “the F oundation h as at least plausibly alle ge d that it

ex ists here.” The court then moved to what i t termed “prudential stand i n g .” A pply ing the z one-of-interests test, the court concluded that the F oundation’s asserted interests were not among

those protected by

§ 203 and § 304(c). The
court reasoned: “Those sect ions d o not define who may challeng e termination n otices, althoug h, by their terms, they

o n l y c ontemplate that certain parties will be involved in the termination process.” The court noted that the sections do not mention parties that acquire by bequest th e r i gh t to receive future roy alty streams. T he d istrict c o u rt concluded that this “indicate[ s] that only authors, statutory heirs o w n i n g a termination interest, and g rantees of transfers a nd their

successors f

a l l w ithin the ‘z one of interests’ Cong ress contemplated in enacting

these provisions.”

Thus, the c ourt reasoned th a t the F oundation could only claim third-party standing b ecause it was “only asserting W arner/Chappell’s interests in the termination notices,” n o t its own. The d istrict court did n o t a d d r e s s the F oundation’s interest in the continued receipt o f roy alties. Be c a use the F oundation did not show that it had a close relationship with W a r ner/Chappell, or that W arner/Chappell w as incapable of protecting its own inter ests, the court concluded that theT H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 14

F oundation did not have third-party standing to challeng e the termination notices. S

ee Powers v. O hio
, 499 U .S. 400, 410–11 (1991) (“W e have r ecog n iz ed the rig ht of litig a nts to bring actions on b ehalf of third parties, provided three i m p ortant criteria are satisfied: The litig ant must h a v e suffered an injury in fact thus g iving him or her a sufficiently
concrete interes t in the outcome of the issue in dispute; the litig ant must have a c lose r elation to the third party ; and there
must ex ist some h indrance to t he third party ’s ability to protect his or her own interests.” (citations an d internal quotation marks omitted)).

I n r esponse to the F oundation’s alternative t h e o r y that it has standing as a beneficial owner of the copy rig ht interests, the district c ourt concluded that because t h e Foundation’s complaint alleg ed that the compositions were created a s works for hire, it was not a beneficial o wner and thus did not have standing to challeng e the termination no t i c es. 7 The
court denied leave to amend, pretermitting whet her the F oundation could amend its complaint to alleg e t h a t t he compositions were not works made for hire because in either event, the F oundation’s interests did not fall within the termination provisions’ z one of interests, and the F oundation lacked third-party standing t o a ssert the interests o f W a r ner/Chappell.

The F oundation timel y appealed. W e have jurisdiction under 2 8 U.S.C. § 1291, and we r everse the district court’s decision.

7 A creato r o f a w o rk m ad e f o r h ire do es n o t q u alif

y as a b en e ficial

o w n er ev en if h e o r sh e is en titled to ro y alties. S ee W a rren , 3 2 8 F .3 d at 1 1 4 4

– 4 5

.T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 15

STANDARD OF REVIEW

“W e review de novo a district court’s order d ismissing a complaint for lack of jurisdiction under Rule 12(b ) ( 1 )

. ” W arren v. Fox Family W

orldwide, Inc.
, 328 F .3d 1136, 1139 (9th Cir. 2003). At this stag e, the F oundation “ need only show that the facts a lleg ed, if proved, would confer standing upon” it. Id. at 1140.

ANALYSIS

There is no challeng e to the F oundation’s A r t i cl e I I I

s t a nding

. The “irreducible constitutional minimum of standing ” requires that (1) the F oundation suffer a concrete, particulariz ed, and actual injury in fact; (2) there be “a causal connection b etween the injury and the conduct complained of”; and (3) a favorable d ecision will li k el y redress that injury

. Lujan v. Defenders of W ildlife
, 504 U.S. 5 55, 560–61 (1992). The F oundation ’ s complaint satisfies these requirements: it establishes that the Fo u ndation relies on roy alties f

rom the c opy

rig ht g rants; t h e Terminating Heirs’ notices soug ht to terminate those g rants; the terminations, if valid, would deprive the F oundation o f its income stream; a nd

a declaration of the termin at ions’ invalidity w ould redress that deprivation.

Althoug h neither party

arg ued ripeness, “it is o ur duty to consider sua sponte whether [ a s u i t ] is ripe, because ‘the question of ripeness g oes to our subject matter jurisdiction to hear the c ase.’” Haw. Newsp aper Agency v. Bronster
, 103 F .3d 7 42, 745 (9th Cir. 1996) (alteration omitted) (quoting Shelter Creek D ev. Corp. v. City of Oxnar d
, 838 F .2d 3 75, 377 (9t h C i r. 1988)); see also Ctr. forT H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 16

B i o l ogical D iversity v. Kempthorne
, 588 F .3d 701, 708 ( 9t h Cir. 2009) (“[ R] ipeness . . . is not waivable.”).

The F oundation’s suit is ripe. The F oundation’s c laims
per t a i n to termination notices for g rants g overning 51 different w orks, ex ecuted in d ifferent contracts, at d if ferent times. Termination notices do not automatically te rm i nate g rants; the effective d ates of termination depend on the date of e a c h g rant and the validity of the notices. See 17 U .S.C. §§ 203(a)(3), 304(c). The Terminating Heirs issued t he termination notices in March 2010, the Copy rig ht Office recorded the notices in J anuary 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 W oman,” one o f Charles’s most famous song s. The F oundation filed its complaint on M a r ch 28, 2012, a nd the district court g ranted the Termi nating Heirs’ motion to dismiss on J anuary 25, 2013. The asserted termination dates for 1 2 of the 51 works had passed by the time of the d i s t r i ct court’s order, and the dates for a tota l of 23 works have elapsed as of the issuance of this opinion.

The F oundation alleg es t h a t the notices of termination immediately clouded its abi l ity to a ssess its future income
stream and to rel y o n t he roy a lties. I ts complaint presents questions r eg arding the nature of the underlying works, such

as whether they were works made for h ire, and i f so, when their respective termination dates would be effective. Review

o f these questions does not require us to eng ag e in abstr a ct inquiries about speculativ e injuries. See W olfson v. Brammer
, 616 F

. 3d 1045, 1057 (9th Cir. 2010) (“The ripeness doctrine is peculiarly a questi o n of timing
, desig ned to separate

m a t t er s that a

re premature f

o r review because the injury is speculative and may never o ccur from those cases that a r eT H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 17

appropriate for federal court action. T h roug h avoidance o f premature adjudication, the ripeness doctrine prevents courts from becoming entan gl e d in abstract disag reements.” (alteration, citations, and internal q uotation marks omitted));

see also id. at 1058 ( identify i n g t h e question of ripeness a s “whether the issues presented are ‘definite and concrete, not hy pothetical or abstract’” (quoting T h o mas v. Anchorage Equal Rights Comm’n
, 220 F .3d 1134, 1139 (9th Cir. 2 000) (en banc))). W e accept as true the F o undation’s alleg ation that the effects of t h e termination notices “have been felt in

a concrete way ” b ecause the n o t i ces have “created an enormous cloud over the future copy rig ht ownership” of the 5 1 w o r k s and made it “very difficult, if not impossible, to

ex p loit the valuable c opy rig hted assets.” The F oundation ’s complaint is there f

o r e n ot p remature. I t would be an inefficient use of judicial resources to compel the F oundation
to file a different suit after each termination date h as passed.

W e recog niz e that, as in cases in which suits were f ound unripe for a djudication, the record contains no determination by the Copy

rig ht Office of the validity of the termination notices. See Smith v. Casey
, 741 F

. 3 d 1236, 1244–45 (11th Cir. 2014). B ut the parti e s made clear in the district court that “there [ i] s nothing pending before the Copy rig h t O ffice” because the Office does not ty pically hold p r o c e eding s to adjudicate the validity of termination n otices. The Copy rig ht Office has ex pressly stated “it does not issue o r e n f orce notices of termination,” b ut “ o nly serves a s an office o f public record for such docu ments.” Compendium of Copyright Office Practices III § 2305 ( 2014). “The fact that

a document has been recorded is not a determination b y the U.S. Copy

r ig h t Office c o n cerning the validity or the effect o f that document. That d

ete r m i n a tion can only be made by a court of l a w

. ” Id. ( emphasis added). And “the fact that theT H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 18

[ Copy rig ht] Office has recorded the notice does not mean that i t i s otherwise sufficient under the law”; recordation “ i s without prejudice to any party claiming that the leg al and formal requirements for issuing a valid n otice have not been met, including before a court o f competent jurisdiction.” 37 C.F .R. § 201.10(f)(6).

Satisfied that this suit meets the threshold requirements o f constitutional standing and ripeness, w e p r oceed to the only remaining issue: whether the F oundation may sue to challeng e the termination notices.

I.

The F oundation arg ues t h a t it has standing to challeng e the termination notices as a beneficial o wner. I t bases this
arg ument on its status as the sole beneficiary o f C h arles’s will. 8 T he F oundation reasons that because the Copy rig ht A ct accords standing to beneficial owners in t h e c ontex t o f infring ement, beneficial owners have standing in the c ontex t of termination. W e disag r ee. The te r m “ b e neficial owner”

comes from 1 7 U.S.C. § 501, which is titled “I nfring ement o f
copy rig ht.” Subsection 501(b) provides th at a beneficial

owner is entitled “to institute an action for any infring ement.” See also Silvers v. Sony Pictures Entm’t , 402 F .3d 881, 885 (9th Cir. 2005) (en banc) (reasoning that only a leg al o r beneficial owner may sue for infring ement). T h e d i strict

8 I f s o m e o r a ll o f th e w o rk s w ere n o t m ad e f o r h ire, th en Ch arles w as lik ely a b en ef

icial o w n er of th o s e w o rk s b ecau se h e w o u ld h av e b een “ an

au th or w h o h ad p arted w ith leg al title t o th e co p y rig h t in ex ch an g e f

or p ercen t ag e ro y alties b ased on sales o r licen se f ees.” W a rren v. Fo x Fa mily W o rld wid e, In c. , 3 2 8 F.3 d 1 1 3 6
, 1 1 4 4 (9 th Cir. 2 0 0 3 ) (q u o tin g H.R. Rep

. No . 9 4

- 1 47 6 , at 1 5 9 ) (in tern al q u o tatio n m ark s o m itted ).T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 19

court relied in part on the concept o f b e neficial ownership when it g ranted the motion to dismiss, b ut the F oundation’s claims are about termination of c opy rig ht g rants, not copy rig ht infring ement. Th e arg ument that the F oundation
may be a beneficial owner lends n o support to its cla i m to standing

.

II.

The T erminating H ei r s arg ue that the F oundation must satisfy the requirements for third-party standing because the complaint actually ass e rts the interests o f W arner/Chappell. The F oundation arg u e s that it is a “real party in inter e s t and [ that it is] not asserting rig hts of a third p a r ty .” We ag r ee with the F oundation.

Historically
, courts have treated the lim i tation on thirdparty standing as a prudential principle that requires plaintiffs
to assert their own leg al rig hts. See Er w i n Chemerinsky
, F ederal J urisdiction § 2.3.4 (6th ed. 2012). “[ E] v en when the plaintiff has alleg e d injury sufficie n t to meet the ‘case o r controversy ’ requirement, th[ e Supreme] Court has h e ld that the plaintiff g enerally mus t a s s e rt his own leg al rig h ts a nd interests, and cannot rest his c laim to relief on the leg al rig hts

or interests of third parties.” 9 W a rth v. Seldin
, 422 U.S. 490,

9 Lexma rk In tern a tio n a l, In c. v. S t a tic Co n tro l Co mp o n en ts, In c. , 13 4 S. Ct. 1 3 77 (2 0 1 4 ), rem o v ed th e zo n e- o f

- in terests i n q

u iry f ro m th e p ru d en tial
stan d in g d o ctrin e, b u t L exma rk did n o t p ertain to th ird

- p arty stan d in g

. Id

. at 1 3 8 7 n .3 (“ T h is case d oes n o t p resen t an y issu e o f th ird

- p arty stan d in g , an d co n sid eratio n o f th at do ctrin e’ s p ro p er p lace in th e stan d in g f irm am en t

can aw ait an o th er d ay .”). W e co n clu d e, in u n iso n w ith all o th er co u rts to h av e sp o k en o n th e issu e, th at th e th i rd

- p arty

- s tan d in g d o ctrin e co n tin u es to rem ain in th e realm

o f p ru d en tial s tan din g

. S

ee, e.g

. , Ho meAwa

y In c.

v. City & C

n ty. o f S .F
., No

. 1 4

- cv

- 0 4 8 5 9

- JCS, 2 0 1 5 W L 3 6 7 1 2 1
, at * 7T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 20

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 o f issues upon which the court so larg ely depends for illumination of difficult c o nstitutional [ or statutory ] questions.” Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc.
, 368 F .3d 1053, 1057 (9th Cir. 2 004) (internal quotation marks omitted).

I t is un d i sputed that copy rig h t ownership lies with W a r ner/ Chappell, but just as the termination notices affect W a r ner/Chappell’s o wnership of copy righ t s, they also directly affect the F oundation’s r i ght to roy alties. See 1 7 U.S.C. §§ 203(b), 304(c)(6); Larry Spier, Inc. v. Bour n e Co.
, 953 F .2d 7 74, 780 (2d Cir. 1992). The F oundation is the

so l e recipient of roy alties f lowing from Charles’s copy rig ht
g rants and effective termination would deprive it of the rig ht
to receive prospective roy alties. See Larry Spier
, 9 53 F .2d at 780. W e thus have little difficulty co n c l uding that the F oundation is litig ating its own stake in this controversy

.

This conclusion is buttressed by comparing the F oundation’s interests to W a r n e r / C h a p p e ll’s. The p ublisher’s i n terests will be prejudiced only if Charles’s heirs a r e

(N.D. Cal. J an

. 2 7
, 2 0 1 5 ) (u n p u blish ed ) (d eclin in g to ex t en d “ L exma rk to in v alid ate a p ru d en tial stan d i n g d o ctrin e th at it ex p licitly d id n o t reach ,”

an d o bserv in g t

h at th e h o l d in g “ is co n sisten t w ith a n u m b er o f o t h er co u rts th at h av e in terp reted Lexma rk as leav in g t h e p ru d en tial d o ctrin e o f th i rd

p arty stan d i n g u n af

f ected ”); Ch a n d ler & Newville v. Qu a lity Lo a n S erv. Co rp

. o f W a sh

. , N o

. 0 3 :1 3- cv

- 0 2 01 4

- ST
, 2 0 1 4 W L 2 5 2 6 5 6 4
, at * 4 (D. Or. J u n

. 3
, 20 1 4 ) (u n

p u b lish ed ) (“ B ecau se Lexma r k d id ‘ n o t p resen t an

y issu e

o f t h i r d -p arty stan d in g ,’ th e C o u rt d id n o t d ecid e th e ‘ d o ctrin e’ s pro per p lace in th e stan d i n g fi r m am en t,’ leav in g it as p art o f th e p ru d en tial
stan d in g in q u i ry .”).T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 21

successful in their efforts to terminate the ex isting g r ants a nd then either ag ree to gr an t copy rig ht ownership to another publisher, o r reneg otiate g rants with W arner/Ch a p p e ll on terms less f

avorable to the p u b l i s h er than the terms of the

ex isting g rants. Otherwise, it makes no difference to W a r ner/Chappell whether it continues to pay roy alties to the F oundation under the current g rants, or to Charles’ s heirs under new g rants. I n their brief on appea l
, t h e Terminating Heirs recog niz e that if they decide to r eneg otiate g rants with W a r ner/Chappell, the publisher’s interests will b e larg ely unaffected: “ A te rminated g rantee may w ell be more interested in maintaining an amicable relationship with the terminating author o r statutory heir to facilitate re-licensing

. ” I ndeed, t h e statutory termination provisions reflect W a r ner/Chappell’s inte re st in remaining friendly to the Terminating Heirs, by g iving neg otiating p r iority to terminated g rantees:

A further grant, or ag reement to make a further g rant, of any ri g h t covered by a terminated g rant is valid o nly if i t i s made after the effective date of the termination. A s

an e x ception, however, an ag reement for such

a further g rant may be made between [ a

m a jority of the statutory h e irs] and t h e orig inal g rantee or such g rantee’s successor in title, after the notice of termination has b een served as provided by clause ( 4) of subsection (a).

17 U.S.C. § 203(b)(4). B ecause W arner/Chappell’s interests

are not necessarily at risk, it has diminished reason to litig ate, particularly because challeng ing the Terminating Heirs mig ht endang er its interests.T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 22

I n this case, the par t y presenting the most concrete adverseness to the Terminating Heirs is the F oundation. The F oundation “ plainly asserts its own leg al rig hts and interests,
not those o f another, t h u s making immaterial any question abo u t the jurisdictional character of ‘third-party standing .’” See Lifestyle E

nter., I n c

. v. United States
, 751 F

. 3d 1371, 1376 (F ed. Cir. 2014) (citations omitted).

III.

W e now turn to the z one-of-interests test, which looks to the s tatutory p rovisions at issue and asks whether Cong ress authoriz ed 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 F oundation’s complaint is that § 203 and § 3 0 4(c) do n ot apply to the underly ing works because they are works made for hire. Se e 17 U .S.C. §§ 203(a) (“I

n the case of any work other than a work made for hire

. . . .” (emphasis added)), 304(c) (“I n the case o f any copy rig ht subsisting in e ither its firs t or r enewal term on J anuary 1, 1978, other than a c o pyrig ht in a work made for hire

. . . .” (emphasis added)). The Terminating Heirs arg ue that the F oundation’s suit does not f all in the termination statutes’ z one of inte r es t s because the termination statutes

were intended to benefit authors’ surviving spouses and h eirs. B ut this ig nores the central p r emise of the F oundation’s suit,

w h i ch is that the termination provisions do not apply at al l

. As the h ol d er of leg al rig hts and interests that will be truncated if the termination notices are valid, the F oundation has standing to challeng e w h ether the underlying works a re subject to the termination provisions. I f the compositions a re

wor ks made for hire, the termination statutes do not apply

. See 17 U .S.C. §§ 203(a), 304(c). F urther, as we e x plain below, even if w e assume that the compositions are not worksT H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 23

made for hire and that the u nderly ing grants are subject to termination, we would c o n c lude that the F oundation’s suit falls under the statutory

provisions’ z one of interests.

The Supreme Court first a r ticulated the z one-of-interests
test in Association of

Data P rocessing Service Organizations

v. Camp
, 397 U.S. 1 50 (1970). There, the court stated that standing “concerns, apart from the ‘case’ or ‘cont ro v e rsy ’ test, the question whether the interest soug ht to be protected by the complainant is a

rg uably within the z one of interests to be protected o r reg ulated b y the statute or con s t i t u tional
g uarantee in question.” Id. at 153. The Court later ex p lained:

[ T] he test denies a r ig h t o f review if the plaintiff’s interests are s o marg inally r elated
to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Cong ress intended to permit the suit. The test is not meant to b e e specially demand i n g; in p a

r ticular, there need be no indication of cong r essional purpose to benefit the would-be plaintiff.

Clarke v. Sec. Indus. Ass’n
, 479 U .S. 388, 3 9 9 –400 (1987) (footnote omitted).

I n the past, the Supreme Court has characteriz e d the test

as o n e p e rtaining to “prudential standing .” See, e.g. , Fed. Election Comm’n v

. Atkins
, 5 24 U.S. 11, 20 ( 1998); Bennett
, 520 U .S. at 163; cf. Erwin Chemerinsky
, F ederal J urisdiction § 2.3.6 (6th ed. 2012). B ut in Lexmark International, Inc. v. Static Control Components, Inc.
, 134 S. Ct. 1377 (2014), the Supreme Court rejected the idea that t h e t e st bears on prudential standing or jurisdiction:T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 24

Althoug h we admittedly h ave placed that test under the “ p r u d e ntial” r

ubric in the past, it does not belong there

. . . . W h ether a plaintiff c o mes within “th e ‘z one o f i n t e rests’” is an issue that r equires us t o determine, using traditional tools of statutory i n t e r p r e t a t i o n , w h e t h e r a l e g i s l a t i v e l y conferred cause of ac tion encompasses a particular plaintif

f’ s claim. As J udg e Silber m a n of the D.C. Circuit recently

o b s e r v e d
, “ ‘ p r u d e n t i a l s t a n d i n g’ i s a misnomer” as applied to the z one-of-interests analy sis, which a s k s whether “this p a rticular class of persons has a rig ht to sue under this substantive statute.”

Id. at 1 387 (alteration and citations omi t ted). The Court
recast the zone-of-interests inquiry as one of statutory interpretation, holding that the question is whether a p laintiff “has a cause of action under the statut e

. ” I d

. I t f urther

ex p lained that the “ standing ” label w as misleading because “‘the absence of a valid (as opposed t o arg uable) cause o f action does n ot implicate subject-matter jurisdiction, i.e.
, the court’s statutory or consti t utional power to adjudicate the case.’” Id. at 1387, 1388 & n.4 ( quoting Verizon M d., Inc. v

. Pub. S erv. Comm’n of M

d

. , 5 3 5 U.S. 635, 642–43 (2002));

see also P it River Tribe v. B u reau of Land Mgmt.
, —F .3d—, 2015 W L 43 93982, at *8 ( 9 th Cir. 2015) (“[ T ]he [ Lexmark ] [ C] ourt

. . . made clear that w heth e r a p l a i ntiff’s c laims a re within a statute’s z o ne of interests is not a jurisd i c t i o n al question.”).

No t a b l y , the Court sug g ested that a heig htened standard for the z one-of-interests test mig ht apply in non-APA cases:T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 25

W e have made clear, however, that t he breadth of the z one of interests v a r ies according to the provisions of law at issue, so that what comes within the z o ne of interests o f

a statute for purposes o f obtaining judicial

r eview of administrative action under the
g enerous review provisions of the A P A may not do so for other purposes.

Lexmark
, 1 34 S. Ct. at 1389 ( q u o t ing B ennett , 520 U.S. at 163) (i n ternal quotation marks o mitted). The Court d id not articulate ex actly how the z one-of-interests inquiry differs for non-APA actions like this one, b u t the above passag e does
sug g est that the relevant question for such actions is whether there ex ists “a valid (as opposed to arg uable) cause o f

a c tion.” See id. at 1387–89 & n.4. This question b e a r s o n 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 L anham Act’s “‘u n usual, a nd

ex traordinarily helpful[ ] ’ detailed s tatement of the statute’s purposes.” Id. at 1389. The Court observed “the Act’s g oal of p rotecting persons eng ag ed in commerce within the control of Cong ress a g ainst unfair compet i t i o n,” and of redressing “injuries to business r eputation and present and future sales.” Id. at 1389–90 (alterations and internal quotation marks omitted). I t thus held that “to come within the z one o f i n t e r ests in a suit for f

alse advertising under § 1 125(a)
, a plaintiff must alleg e an injury to a commercial interest in reputation or sales.” Id . at 1390.

The Supreme Court also articulated a second r equirement
to bring suit for false a d v e rt i sing u nder § 1125(a) o f theT H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 26

L anham Act. I t termed this the prox imate cause requirement, and ex plained that it “is controlled by the nature of the statutory cause o f action,” a nd centers on the question “whether the harm alleg e d has a sufficiently close connection
to the c onduct the statute prohibits.” I d. ; see also id. a t 1394 (“‘W here the injury al leg e d is so integ ral an aspect of the violation alleg ed, there can be no question’ that prox imate

cause is satisfied.” (alteration o mitt e d ) (quoting Blue Shield of Va. v. McCready
, 457 U.S. 465, 479 (1982))). I n t he
contex t of the L anham Act’s prohibition on false advertising and unfair competition, the Court held “that a plaintiff suing under § 1125(a) ordinarily must sh o w e c onomic o r reputational i n

j ury f lowing directly from the deception
wroug ht by t he defendant’s a dv ertising ; and that that occurs when deception of consumers causes them to withhold trade from the plaintiff.” Id. at 1391. A p ply ing the z one-ofinterests test, the Court held that the plaintiff in Lexmark fell “within the c lass of p laintiffs whom Cong ress a uthoriz ed to

sue under § 1125(a)” because the plaintiff alleg ed injuries “to precisely the sorts of commercial interests the Act protects,” and because it “adequately alleg ed prox imate c ausation.” Id. at 1393–94.

The Copy

rig h t A c t does not ex p ressly provide f or a p r i v a t e rig ht of action under § 203 and § 304(c), but we conclude that an implied private cause of action ex ists under the termination provisions. The Supreme Court has indicated that an implied rig ht of actio n r equires 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 Ale

x a nder v. Sandoval
, 532 U .S. 275, 286 (2001)). A private rig ht and remedy are contemplated by the termination p rovisions; the statutes plainly a c c o r d a u t h o rs a nd statutory heirs the ability to terminate prior g rants a ndT H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 27

recapture copy

rig ht ownership for works that were not made for hire. See 17 U.S.C. §§ 203, 304(c). I n c o n t ra s t to schemes that can only b e enforced b y a g overnment ag ency , 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 cl a i m i n g that the leg al and formal requirements for issuing a valid n otice have not be e n m e t , including before a court of c o mpetent jurisdiction.”). 1 0 Other
courts have entertained suits challeng ing termination validity under these stat u t o r y provisions. See, e.g. , Marvel Characters, Inc. v

. Kirby
, 726 F .3d 119 (2d C i r. 2 013) (terminated g rantee’s ch a lleng e of statutory heirs’ § 304(c)
t e r m i n ation notices); Penguin Grp. ( USA) Inc. v. S

teinbeck
, 537 F .3d 193 (2d Cir. 2008) (challeng e to st a tutory heirs’ termina t i o n notice asserted by g rantee’s assig nee); Milne ex rel. Coyne v. Stephen Slesinger, Inc.
, 430 F .3d 1036 (9th Cir. 2005) (suit filed by author’s g randchild and prime b eneficiary of trust that received roy a lties from underly ing g rant, seeking declaration that termination notice was valid); L a r ry Spier, Inc. v. Bourne Co.
, 9 53 F .2d 7 74 (2d Cir. 1992) (suit b etween two publishers: one an assig nee of the author’s rig ht to renew, the other an assig n ee of the author’s heirs’ copy rig ht interests, after a termination a tte mpt); Bourne Co. v. MPL Commc’ns, I

nc ., 6 7 5 F

. Supp. 859 (S.D.N.Y. 1987) (suit b e t w e e n two publishers: the orig inal g rantee and a posttermination g rantee who received rig h ts throu g h ag reement with the beneficiary

of the author’s widow’s estate).

10 T h e F o u n d atio n arg u es th at th e Co py rig h t Of f ice’ s u se o f “ an y p arty ” in stead o f “ g ran tee” co n s titu tes an ag en cy i n terp retatio n th at “ an y p arty ”

m ay ch allen g e term in atio n n o tices. W e are n o t p ersu ad ed

. T h i s p ro v isio n i n d i c ates on ly th at reco rd atio n o f a t erm in atio n n o t ice do es n o t b a r ch allen g es to th e v alid ity o f term in atio n n otices. It s ay s n o th in g ab o u t

w h o m ay b rin g su it.T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 28

B e cause we conclude that there are leg islatively conferred

causes o f action under these termi n a t ion statutes, the nex t question is whether the statutory causes of action encompass t he F oundation’s claims. See Lexmark
, 134 S. Ct. at 1 3 8 7

. W e beg in with the statutory p u rposes of the termination provisions, which were intended “to ‘safeg uard a uthors

a ga i n s t u n r e m unerative transfers’ and improve t h e ‘barg aining p osition of the authors’ b y g iving them a second chance to neg otiate more advantag eous g rants in their works after the works had been sufficiently ‘ex ploited’ to determine their ‘value.’” Milne
, 430 F .3d a t 1 0 46 (alterat i o n omitted) ( q uoting H.R. Rep. No. 94-1476, at 124). The improv e d barg a ining position and “more advantag eous g rants”
g enerally p rovide to authors a g reater share o f t he roy alties, which other courts have recog n iz ed as “the most valuable part of the termination rig hts.” See MPL Commc’ns, Inc.
, 675 F

. Supp. at 863.

The F oundation’s c laim centers on its rig h t to continue receiving roy a lties. I f it is determined that some o r all of the works are subject to the termination provisions b ecause they

were not made for hire, the F oun d a tion’s ability to maintain this a ction to challeng e the notices depen d s upon whether Cong r ess intended to allow a party receiving roy alties under

a contractua l a s s ig nment or will to challeng e the validity o f termination notices.

The Terminating H eirs arg ue that the interests asserted b y the F oundation in this case a re not a n ideal match for the leg islative intent of these p rovisions b e cause the purpose o f § 203 and § 3 04(c) was to enhance authors’ barg aining power and protect their ability to ex ploit their works. See H.R. Rep. N o

. 9 4 -1476, at 1 24; Milne
, 430 F .3d at 1046; M P L Commc’ns, Inc.
, 6 7 5 F

. Supp. at 8 63. B ecause theT H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 29

F oundation is neither the g r antee nor Charles’s statutory heir, the Terminat i n g H e irs are correct that the F oundation is not a party ex pressly mentioned in the termination statutes. B ut whether the F oundation’s interests are ex plicitly identified in the statute is not dispositive. I nstead, the central question is whether the F oundation alleg es injuries “ to precisely the sorts of

. . . interes t

s t h e A ct protects .” Lexmark
, 134 S. Ct. at 1393–9 4 (e mphasis added). B ecause the Terminating Heirs issued “multiple notices of termination p e rtaining to the same compositions, not all of which can possibly be v a l i d
, ” the F oundation alleg es that the notices make “it very difficult, if
not impossible, to ex p loit the valuable copy r ig ht assets at issue.” Thus, the F oundation a lleg es injury to its interest in continuin g t o r eceive the roy alty stream g enerated b y Charles’s works, wh i c h i s the same interest that the Terminating Heirs seek to r e d i r e ct to themselves. This interest is the one Cong ress c o ntemp l a t e d
, reg ulated, a nd protected in enacting the termination provisi o n s

. S ee H.R. Rep. N o. 9 4-1476, a t 124; M ilne
, 4 30 F .3d at 10 46; MPL Commc’ns, Inc.
, 675 F

. Supp. at 8 63. W e therefore conclude that the F oundation does “come[ ] within the zone o f interests” of § 203 and § 304(c). See Lexmark , 134 S. Ct. at 1387 (internal quotation marks omitted).

Even if we concluded that Cong ress d i d not a uthoriz e a party in the F o undation’s position to challeng e the validity o f termination notices, the F o u ndation’s complaint also seeks a judicial determination establishing when the terminations

come into effect f

or each of t he 51 different works. This determination is particularly important because the Terminating H eirs issued duplicate notices with inconsistent termination dates. As the F oundation a rg u e d in the district court, “even if the Court were to det e r m ine that th[ e] terminations are valid and effective, the F oundation would,T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 30

nonetheless, need a Declaration as to t he timing so that it

w o u ld know w hen, [ or] if a t all, its rig hts to continue t o receive the writer share of the income mig ht cease to ex ist.” W e ag ree. The F oundation is at least entitled to a declaration establishing when the righ t t o receive roy a lties reverts to Charles’s heirs.

I t is unclear whether the Supreme Court intend e d the
prox imate c a u s e test to be part of the z one-of-interests inquiry

. Compare Lexmark
, 134 S. Ct. a t 1388–90
, w i t h i d.
at 1390–91 (ass es s ing “Z one of I nterests” and “Prox imate Cause” in separate sec t i o n s )

. B ut Lexmark d id indicate that the Court “g e nerally presume[ s] t h a t a statutory cause o f action is limited to plaintiffs whose injuries are prox imately caused b y violations of the statute”; “Cong ress

. . . is familiar with the common-law rule” of prox imate cause “and does not

mean to displace it sub silentio ”; a n d “ federal causes o f action in a variety of contex ts [ are construed] to incorporate a requirement of prox imate causation.” Id. at 1390.

Prox imate cause “bars suits for alleg ed h a rm 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)). Th e re is no remoteness here. Termination, if effective, would directly ex ting uish the F oundation’s rig ht to receive p rospective r o y a lties from the current g rants. F ar from ba r r i ng the F oundation’s suit, the prox imate cause test sug g ests that the F oundation is indeed a party “whose injuries [ may h ave been] prox imately caused by violations o f the statute.” See id

.T H E R A Y C H A R L E S F O U N D

. V

. R O B I

N S O N 31

CONCLUSION

The F oundation p r o p e rly a sserts its own claims, which fall within the statutory z one of interests. W e therefore

r e verse the district court’s judg ment and remand for furt h e r proceeding s.

REVERSED AND REMANDED.