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Termination of copyright transfers

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1909 Copyright Act Edit

Under the 1909 Copyright Act, the copyright in a work reverted to the author, if living, or if the author was not living, to other specified beneficiaries, provided a renewal claim was registered in the 28th year of the original term.

1976 Copyright Act Edit

The 1976 Copyright Act gives authors (and some heirs, beneficiaries and representatives who are specified by statute) the right to terminate certain grants of transfers or licenses, subject to the passage of time set forth in the statute and the execution of certain conditions precedent.

Termination rights (also referred to as recapture rights) are equitable accommodations under the law. They allow authors or their heirs a second opportunity to share in the economic success of their works. Codified in sections 304(c), 304(d) and 203 of Title 17, respectively, they encompass grants made before as well as after January 1, 1978 (the effective date of the 1976 Copyright Act). (The provisions do not apply to copyrights in works made for hire or grants made by will.)

Termination provisions provide authors with a long-term insurance policy on the value of their copyrights. The House Report accompanying the 1976 Copyright Act states that the provisions are "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."[1] Termination rights are put in motion by serving notice on the grantee. The notice must state the effective date of the termination and must be served on the grantee not less than two or more than ten years before that date.[2] The Register of Copyrights, through regulations, has set forth additional core elements that must be included in the notice, among them a statement as to whether termination is being made under sections 304(c), 304(d) or 203.[3]

Section 304(c) governs older works, specifically works in which a copyright was subsisting in its first or renewal term as of January 1, 1978. It provides for termination of the exclusive or nonexclusive grant of a transfer or license of the renewal copyright (or any right under it) executed before January 1, 1978. Termination may be exercised at any time during a five-year period beginning at the end of fifty-six years from the date copyright was originally secured. Section 304(d) governs a smaller subset of pre-1978 works for which the termination right under section 304(c) expired (and was not exercised) on or before the effective date (October 27, 1998) of the Sonny Bono Copyright Term Extension Act, which extended copyright terms by 20 years. It provides for termination of the exclusive or nonexclusive grant of a transfer or license of the renewal copyright (or any right under it) at any time during a five-year period beginning at the end of 75 years from the date copyright was originally secured.

Section 203 governs grants made under the "new law." It provides for termination of the exclusive or nonexclusive grant of copyright (or any right under copyright) executed on or after January 1, 1978 (regardless of whether the copyright was secured prior to or after 1978). Termination may be exercised at any time during a period of five years beginning at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever is earlier. Unlike section 304, the termination right in section 203 applies only to grants executed by authors. Section 203 terminations may be exercised as of January 1, 2013, provided notice has been served no less than two years prior.

Once the notice is served, a copy of the notice must be recorded with the Copyright Office prior to the effective date of termination.[4] Upon receipt of the notice, the Copyright Office undertakes a review of certain facts, including whether the notice has been executed in a timely manner. Because lateness is a fatal mistake under the law,[5] the Copyright Office reserves the right to refuse recordation of a notice of termination if, in the judgment of the Copyright Office, such notice of termination is untimely.[6]

References Edit

  1. H.R. Rep. No. 94–1476, at 124 (1976).
  2. 17 U.S.C. §§304(c)(4)(A); 304(d)(1); 203(a)(4)(A).
  3. 37 C.F.R. 201.10(b)(1)(i) and (b)(2)(ii).
  4. 17 U.S.C. §§304(c)(4)(A); 304(d)(1); 203(a)(4)(A).
  5. By contrast, the regulations provide accommodations for certain harmless errors. 37 C.F.R. 201.10(e)(1)–(2).
  6. 37 C.F.R. 201.10(f)(4). If a document is submitted as a notice of termination after the statutory deadline has expired, the Copyright Office will offer to record the document as a "document pertaining to copyright" pursuant to §201.4(c)(3), but the Copyright Office will not index the document as a notice of termination. Whether a document so recorded is sufficient in any instance to effect termination as a matter of law shall be determined by a court of competent jurisdiction.

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