Introduction to Rules for Reclaiming Copyrights Under U.S. Copyright Law
Under the US Copyright Act, authors of copyrights are allowed to terminate transfers or licenses of their copyright if certain conditions are met. This is a highly complex area of law, and unfortunately for authors, the provisions for termination are complicated and not author-friendly. However, they can be navigated with the help of a qualified copyright lawyer, and they provide a means for authors to reclaim copyrights that the author may have earlier signed away. This article serves as a basic introduction to some of the elements of a statutorily-permitted termination of a transfer or license. Note also that this article addresses terminations of transfers or licenses where the transfer or license was executed by the author on or after January 1, 1978. These types of terminations are addressed in 17 U.S.C. § 203.
Assuming the transfer is one that is subject to the termination provisions, one must, as an initial matter, determine when the termination may take place. This in turn, requires determining whether the original grant covers the right of publication. If the original grant did not cover the right of publication, then termination may be effected during a five-year window that begins at the end of thirty five years from the execution of the grant. If the original grant did cover a right of publication, then the five year termination window begins at the earlier of (a) the end of thirty five years from the date of publication of the work under the grant; or (b) the end of forty years from the date of execution of the grant. Regardless of whether the grant covered the right of publication, a failure to effectuate termination during the relevant 5 year period will result in the loss of the right to terminate pursuant to Section 203.
The mechanism for effectuating termination is the providing of a notice of termination, which must be served by first-class mail or personal service. There are very specific rules governing this notice. Timing of the notice is critical. The notice must state the effective date of termination, and must be served not less than two years and not more then ten years before the effective date of termination. There are many other requirements for the notice as well. These include, but are not limited to, the following:
the name of each grantee whose rights are being terminated, or the grantee’s successor in title, and each address at which service is being made
the date of execution of the grant being terminated and, if the grant covered the right of publication of a work, the date of publication of the work under the grant
For each work to which the notice applies, the title and name of the author or, in the case of a joint work, the authors who executed the grant being terminated; and, if possible and practicable, the original copyright registration number
a brief statement reasonably identifying the grant to which the notice applies
Determining the appropriate party(ies) on whom to serve the notice may also prove challenging, particularly since so much time will have passed since the original grant, and during which time the title to the work may have changed hands, sometimes on multiple occasions. In regard to determining the parties to be served, the service provisions of Section 203 will be satisfied if, before notice is served, the person executing the notice makes a “reasonable investigation” as to current ownership of the rights being terminated, and based on such investigation, (a) if there is no reason to believe there has been a transfer of rights, the notice is served on the grantee, or (b) if there is reason to believe the rights were transferred to a particular successor in title, the notice is served on such successor in title. A “reasonable investigation” includes but is not limited to a search of copyright office records.
In addition, after the notice is served, it must be recorded with the Copyright Office. There are additional requirements governing the submission of the notice for recordation, and the Copyright Office has a special form to be used in connection with such submission. There is also a fee.
Finally a termination, pursuant to Section 203, of a transfer or license does not terminate a grantee’s (or successor in title’s) rights to continue to exploit a derivative work that was, prior to the termination, created under the original grant. However, it does prevent the grantee (or the grantee’s successor(s) in title) from creating new derivative works, which can be a valuable right for authors.
As noted in the introduction, this is a highly complex and specialized area of law. Because this article serves only as a general introduction to the concept, there are many requirements which are not discussed above. For these reasons, and others, anyone looking to terminate a transfer or license pursuant to US Copyright law is advised to enlist the help of a qualified copyright lawyer. But while the process is complex, it can be navigated, and many, many authors have already reclaimed their works pursuant to copyright law, while others will undoubtedly do so in the future.
NOTE: This article is presented for informational purposes and represents the author's personal opinion only. It does not constitute legal advice and no attorney-client relationship exists between the reader and the author. If you would like legal advice concerning this issue, you should speak with a qualified attorney who can evaluate the particulars of your matter.