Termination of Copyright Grants
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The document summarizes copyright termination rights under U.S. law. It discusses termination provisions for pre-1978 works under Sections 304(c) and (d) and post-1978 works under Section 203(a). These provisions allow authors and statutory successors to terminate grants and licenses made before a certain number of years, typically 35-40 years from execution or publication. The summary discusses eligibility requirements, notice periods, and exceptions to termination rights.
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Termination of Copyright Grants
- 1. Termination of Copyright Grants August 18, 2011
- 19. Comparison of §203(a) and § 304(c) and (d) Majority of joint authors can terminate Either joint author can terminate Author/successors can terminate Author/successors or surviving persons who executed grant can terminate Applies to grants by authors only Applies to grants by authors and others Measure from date grant executed Measure from date copyright secured Post-1978 grants Pre-1978 grants §203 §304
Editor's Notes
- Arguably thwarting Congresses intention by creating the renewal term - Situation developed where it was common for author to grant both initial term and renewal term by contract
- - Extended CR term meant that owners of copyright grants would receive a windfall of additional copyright term
- -Unequal bargaining position of the authors Concern for authors not knowing true value of work until exploited In fairness, authors should have a chance to recover copyrights during the extended copyright terms
- 304(c) and (d) allow authors or statutory successors to terminate pre-1978 grants by AFFIRMATIVELY serving notice of termination, effective within 5-yr windows
- As of the date of the copyright act, which is 1/1/1978
- - Remember that a grant by person other than an author must follow an earlier grant by the author
- In response to Sonny Bono CTEA of 1998, adding 20 more years, gave author second bite at the apple
- Assume copyright secured 3/1/1956 5 yr window opens 3/1/2012 5 yr window closes 3/1/2017 Effective date within 5yr window (arbitrary) 8/1/2013 Time to serve notice: 8/1/2003 – 7-31-2011
- WFH - If in business of acquiring other artists works, advantageous to get agreement as work for hire rather later grant Derivative works - If know termination is approaching, can still exploit that work by creating derivatives prior to effective date
- Twist: Effectively gives Grantee 5 yr grace-period to publish before clock starts
- -This follows Congresses intention to fix pre-1978 situation where renewal copyright term was alienable, in recognition of unequal bargaining power of authors
- Both 9 th circuit and 2 nd circuit recently come out with cases where the termination right was destroyed by a prior contract allowed grantee to rescind and re-grant for express purpose to block author’s family members from terminating license -Milne- post 1978 re-grant (in 1983) not made by author, so not subject to 203, not subject to section 304 bc grant after 1978 - 9 th circuit asserted that “termination… may be effected notwithstanding any agreement to the contrary” was not plain on its face
- Both courts applied state contract law to void original contracts (Milne – “rescinded”, Steinbeck – “cancelled”) – Professor Nimmer argues that both these cases were decided incorrectly, and that the Courts should have applied only federal copyright law and never reached state contract law. These cases clearly go against the intentions of Congress.
- Ways to get around termination rights *1 -new agreement can’t be with author *2 –exercise of unilateral right, not agreement – explicitly contemplated by Congress, evidenced by legislative history re-negotiation after notice of termination: specifically contemplated by Congress (legislative history) Work can be transferred back to original grantee AFTER notice of termination becomes effective, even BEFORE termination becomes effective – “ termination notice” is not an “agreement”, but is a unilateral right WFH – comes with authorship rights, not subject to termination
- Quirk -Present grant of future rights: Pre-1978 grant for post 1978 work: -not 203 bc not post-78 grant. -Not 304 bc 304 applies to “Works “subsisting in either [their] first or renewal term” as of 1/1/78”. -Odd scenario that we probably won’t have to deal with
- Understandable considering revenues have dwindled over last few years - Works for hire argument is weak- Artists can pursue litigation, but risk creating bad blood if win and try to re-negotiate grants Songwriter’s Guild is going full steam Article in NY Times yesterday (thanks Jack) Victor Wills of “Village People” filed to termination notice to regain “YMCA” in 2013 article 2 days ago
- *2 – successors could use as bargaining tool for new royalty rates, or