Most creators are amazed when they hear about the termination rights made possible by the 1976 Copyright Act. By law it is possible for a creator to recapture the rights transferred by grant, such as a publishing contract, single song agreement, administration agreement, or security for a loan. Even if the creator has an outstanding balance due to advances, termination is possible. However, the right to terminate is a future contingent right, meaning you must take action at a future time to exercise your right or it will expire.
The law took effect on January 1, 1978, an important date for determining when a song can be terminated. The author can serve notice of the intent to terminate, or if the author is no longer living, his/her statutory successors can serve notice. The Copyright Office does not provide a form for notification, but is specific in their requirements of what must be included in the notice.
To give an example, we will present the most customary circumstance where a songwriter assigns his/her song to a publisher.
- For songs copyrighted prior to 1978 and assigned by transfer of grant prior to 1978 there is a five-year future time window which gives opportunity to terminate the grant. The window begins on the 56th anniversary of the earlier of either the first registration of copyright or the first date the work was published with copyright notice and extends through the last day of the 60th year. The writer is to pick a date within that window to terminate and notify the holder of the grant. Most will pick the earliest date.
- Certain guidelines are specified. The notification must be no more than ten years prior to the termination date picked by the writer, and no less than two years. Because of the two year minimum notification period, there are really only thirteen years in which to notify in order to terminate in this first window. Terminating in the first window would return the copyright to the creator for up to 39 years of remaining copyright protection.
- For an older work in its renewal term on the effective date of the Sonny Bono Copyright Term Extension Act (effective October 27, 1998), but for which the original termination window had expired, a second window is possible at the 75th anniversary as described above based on the same guidelines and extending through the last day of the 79th year. Terminating in this second window would return the copyright for up to 20 years of remaining protection.
- For songs that enter copyright protection or have a transfer of grant on or after 1978, the law provides again a five year time window for termination. The dates of the window are predicated on the date of transfer of the grant, meaning signing an assignment of the song. For an assignment that includes publishing rights, the termination window begins the earlier of 35 years from the first publication date or 40 years from signing the transfer. For an assignment that does not include publishing rights, such as a security for a loan, the five-year termination window begins 35 years after the date of signing the grant.
- Unlike for pre-1978 songs, there is no second window of opportunity. Miss the first opportunity to terminate and there is no other.
This is a simplified explanation of some of the guidelines. One has to be prepared with many specifics regarding the work to facilitate termination, including title, writers, copyright dates, copyright numbers, date of publication, agreements covering the work, the specific termination date, and possibly identification and agreement of the statutory successors. Notice must be served at the correct time.
Legacyworks, LLC is a great source for providing this service to authors and successors who recognize the great benefits the law has given them in this right to terminate.