A Writer's Guide to Copyright Termination

How to Recapture Your Copyrights

Most book publishing agreements signed within the past four decades profess to be forever. However, don't believe everything you read. There's a pro-author loophole in the Copyright Act.  Despite what a contract may say, a five-year window opens up the earlier of 35 years after initial publication or 40 years after contract signing when an author can walk away from a bad deal or attempt to negotiate a better one.  This right is a powerful right that cannot be waived.

Except for works for hire (discussed later), all copyright grants, including book contracts, film option agreements, and music publishing agreements, entered into after December 31, 1977, are terminable.

 

As they say, the devil is in the details. How you calculate the termination date, the form of notice you must send, the timing of the termination notice, and when it must be recorded with the U.S. Copyright Office is frustratingly complex. The consequence of non-compliance with these complex and arcane copyright termination rules is your publisher retains the rights.

 

Grants can be terminated during a five-year window beginning the earlier of 35 years after the date of initial publication or 40 years after the grant date. For example, provided the grant was not made by a will, a December 28, 1990 grant can be terminated as early as 2026 or as late as 2031, provided notice is timely served.

Practice Pointer. A Notice of Termination must contain the effective termination date - a date set by the copyright owner. The notice may be served up to 10-years before the effective date but no later than 2-years before it. The notice must be recorded at the Copyright Office before the termination date selected. If your calculations are off or you fail to record the notice timely, the notice is null. The termination right cannot be waived by contract.

If an author dies before serving their notice of termination, that termination right vests in their spouse (50%) and children (50%). To effect termination, a majority of the author's next of kin must sign the termination notice. Common pitfalls include missing the termination notice filing deadline, submitting notices on behalf of less than a majority of those needed to sign the notice, and failing to record the notice with the Copyright Office.

Except for works for hire, every author contract entered into on or after January 1, 1978, is subject to termination. 

Comment. Filing a Notice of Termination does not mean termination has taken place. It's a waiting game. Notices must be served upon grantees (or their successor in interest) between two and ten years before the actual termination date. If improperly done, the notice will be rejected by the Copyright Office. Finally, the recipient may challenge it.

To put the termination right in perspective, an author's copyright is protected for seventy years after their death. If not exercised, rights remain with the author's publisher or producer partner. It's worth noting that termination rights only apply to U.S. rights. Under what's called the "derivative works exception," derivative works can continue to be exploited after rights revert.  For example, a motion picture adaptation of a book may continue to be exploited after termination.  However, after the termination takes effect, the producer or studio cannot create new derivative works, whether a remake, sequel, prequel, or novelization.  

British Reversionary Rights

The U.S. is not alone in allowing an author's heirs to reclaim rights. Commonwealth Reversionary Rights, which exist in the United Kingdom and in former commonwealth nations such as Australia, New Zealand, South Africa, and Canada, allow an author's heirs to reclaim copyrights. 

Pre-1978 Creative Works

Books and other creative works published 56 years ago are also subject to copyright recapture under a less publicized but equally powerful section of the 1976 Copyright Act. For example, in 2008, the U.S. Court of Appeals for the Ninth Circuit returned rights to the 1938 children’s story Lassie Come Home to the author’s family. Unlike the “35-year rule,” here, the critical date was the date of copyright, not the publication date or date the contract or license was signed. In this instance, Congress thought it was fair to award the additional term of copyright conferred by the controversial Copyright Term Extension Act to authors and their families, not the publisher. Like the 35-year rule, it is the author’s responsibility to understand whether they are eligible to terminate. 

 

Contact attorney Lloyd Jassin, jassin@copylaw.org, tel. no. (212) 354-4442

 

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