Whether collateral estoppel bars an affirmative defense based on 17 U.S.C. § 304(c)(5) in a second litigation, when the first litigation involving different copyright termination rights never decided if the agreement at issue—purporting to transfer control over future termination rights before those rights vested—is unenforceable under § 304(c)(5)

QUESTION PRESENTED The Copyright Acts of 1976 and 1998 granted an author and certain heirs a contingent “right of termination” that allows the author or the heirs to terminate a previous license to the copyrighted work. See 17 U.S.C. §§ 203, 304. The right to terminate a copyright license is a contingent right that can enable authors and their heirs to capture the full value of the copyrighted works. To ensure that authors and their heirs did not prematurely assign away contingent rights, Congress specified that the rights will not vest until certain actions are undertaken during particularly specified time periods. Congress also instructed that “[t]ermination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.” 17 U.S.C. § 304(c)(5). Termination rights are frequently exercised decades after the original license of the copyrighted work. A single copyrighted work can lead to different termination rights that vest at different times and may be owned by different heirs, once vested. The unique statutory scheme presents a challenge for traditional principles of estoppel, including res judicata and collateral estoppel. The question presented is: Whether collateral estoppel bars an affirmative defense based on 17 U.S.C. § 304(c)(5) in a second litigation, when the first litigation involving different copyright termination rights never decided if the agreement at issue—purporting to transfer control il over future termination rights before those rights vested—is unenforceable under § 304(c)(5).