Copyright Termination: A Primer

I. WHAT DOES “COPYRIGHT TERMINATION” MEAN?

Copyright termination refers to the termination of a grant—or transfer—of one’s copyright rights. Following termination, those rights that were transferred under the grant return to the creator of the copyrighted work. This termination right allows content creators to renegotiate the terms of their original agreements, or enter into new agreements, effectively giving them a second chance at a better deal when they may not have had the opportunity previously. Not all rights return, however: derivative works previously created under authority of the grant before its termination can continue to be exploited. And, only creators’ U.S. rights revert; to the extent a grant of copyright rights includes foreign rights, such foreign rights do not return to the creator upon termination.

The highly technical provisions of the Copyright Act governing copyright termination, 17 U.S.C. §§ 203 and 304, contain a number of potential pitfalls for those attempting to understand and comply with the Act’s statutory requirements. This post provides an introduction to copyright termination, identifying its basic elements.

II. WHICH WORKS ARE ELIGIBLE FOR TERMINATION?

Generally, any grant of copyright rights can be terminated, but there are several types of grants that cannot be terminated under each provision:

A. Section 304: Works That Cannot Be Terminated

  • If the author is still living, grants made by person(s) other than the author
  • If the author is not living, grants made by person(s) other than certain statutory heirs, a list of individuals identified in § 304(a)(1)(C)
  • Grants made by will

B. Section 203: Works That Cannot be Terminated

  • Grants made by person(s) other than the author
  • Grants made by will

Additionally, the Copyright Act’s termination provisions do not apply to works made for hire (a determination which, in and of itself, can be challenging and is highly dependent on the facts of each particular case).

 III. WHEN CAN A GRANT BE TERMINATED?

 A. Copyright Grants Executed On or After January 1, 1978

The termination of a copyright grant executed on or after January 1, 1978 is governed by 17 U.S.C. § 203. The “termination effective date”—the date on which the grant is officially terminated and rights revert—is up to the person(s) terminating the grant. Any date may be selected during the five-year window from the thirty-fifth anniversary of the execution of the grant, if the grant does not cover the right of publication.

Example: Grant Does Not Cover Right of Publication

Date of grant: January 1, 1980

Date of grant plus thirty-five years: January 1, 2015

Termination Window: January 1, 2015 – January 1, 2020

Using the above example, the effective termination date can be any date between January 1, 2015 and January 1, 2020.

The calculations are slightly different under § 203 if a grant covers the right of publication. In that case, the termination effective date must be a date during the period of five years from the earlier of thirty-five years from the date of the work’s first publication, or forty years from the date of execution of the grant.

Example: Grant Covers the Right of Publication

Date of grant: January 1, 1980

Date of first publication under the grant: January 1, 1982

Date of publication plus thirty-five years: January 1, 2017

Date of execution of grant plus forty years: January 1, 2020

Termination Window: January 1, 2017 – January 1, 2022

Because January 1, 2017 is earlier than January 1, 2020, the termination effective date window is calculated, in this example, using the date of publication.

Conversely, if the date of publication is more than five years from the date of execution of the grant, the termination effective date window would be calculated using the execution date.

 Example: Grant Covers the Right of Publication

Date of grant: January 1, 1980

Date of publication: January 1, 1987

Date of first publication plus thirty-five years: January 1, 2022

Date of execution of grant plus forty years: January 1, 2020

Termination Window: January 1, 2020 – January 1, 202

B. Copyright Grants Executed Before January 1, 1978

 Works Published On or Before January 1, 1978:

The termination of a copyright grant executed before January 1, 1978, in connection with a work published on or before January 1, 1978, is governed by 17 U.S.C. § 304(c). The terminating party may select any date during the five-year window from the fifty-sixth anniversary of the date on which the copyright was originally secured.

 Example:

Date of first publication: January 1, 1975

Date of first publication plus fifty-six years: January 1, 2031

Termination Window: January 1, 2031 – January 1, 2036

Using the above example, the effective termination date can be any date between January 1, 2031 and January 1, 2036.

Works Published After January 1, 1978: “Gap Grants”

The termination of a copyright grant executed before January 1, 1978, in connection with a work published after January 1, 1978, is not squarely addressed by the Copyright Act. Section 304(c) applies only to those works protected by federal copyright as of January 1, 1978 (which would require publication of the work by January 1, 1978). At the same time, Section 203 applies only to grants executed on or after January 1, 1978.

The Copyright Office has indicated that it will accept for recordation purposes notices of termination of these so-called “gap grants” under Section 203. In order to calculate the proper termination date pursuant to this section, the grant is deemed “executed” on the date on which the work was created. However, as the Copyright Office has itself acknowledged, whether such notices of termination fall within the scope of Section 203 will ultimately be a matter to be resolved by the courts.

Example:

Date of execution of grant: January 1, 1977

Date of creation of work: January 1, 1979

Grant deemed “executed” as of: January 1, 1979

IV. HOW IS A COPYRIGHT GRANT TERMINATED?

In order to terminate a copyright grant, a notice of termination must be served on the party (and successors in interest) to whom rights have been granted. A notice of termination may be served up to ten years before the selected termination effective date, and must be served no later than two years before the selected termination effective date.

Example:

Termination Effective Date: January 1, 2030

Termination Notice Window: January 1, 2020 – January 1, 2028

In the example above, a notice of termination may be served no earlier than January 1, 2020 (January 1, 2030 minus ten years), and must be served no later than January 1, 2028 (January 1, 2030 minus two years).

If an author is still living during the termination notice window, the author him- or herself must serve the termination notice. If the author is deceased, his termination interested will be considered to be owned by certain family members as outlined in 17 U.S.C. § 203(a)(2) and § 304(c)(2), respectively, and the notice of termination must be served by those of the author’s relatives entitled to more than 50% of the author’s termination interest.

It is important to note that, in the case of a grant executed by two or more authors of a joint work, termination of the grant can only be effected by a majority of the authors (and if any joint author is deceased, that author’s termination interest can be exercised by surviving relatives.)

The notice of termination must comply with certain statutory requirements—for instance, the notice must explicitly identify the termination effective date—and must be filed with the Copyright Office prior to the termination effective date selected by the terminating party. In the next installment of this tutorial, we will discuss the required, statutory components of termination notices in greater depth.

COPYRIGHT TERMINATION: WHEN IS A WORK ELIGIBLE FOR TERMINATION?

While seemingly straightforward in concept, copyright termination is complex in practice.  The following flow chart provides a simplified visual representation of the termination windows that may be helpful as a quick reference.

flow-chart