Copyright Office issues “Gap Grant” opinion

A work created on or after January 1, 1978 becomes copyrighted as soon as it is fixed in a tangible means of expression, which essentially means the date of creation. This was a considerable change from previous requirements under old law when a work was copyrighted only when registered with the copyright office or publicly distributed with copyright notice included.  However, for the purpose of filing termination of a grant of copyright, there have remained questions regarding “gap grants”, works created on or after January 1, 1978, but bound by a term agreement prior to 1978.

In 2009, the U.S. Copyright Office requested comment on how to resolve the gap grant dilemma.  Many believe the wording of the copyright act did not specifically address how to terminate such a work, and different companies, organizations and attorneys have held conflicting views.  Legacyworks LLC contributed comments on this issue in response.

Arguably, the most persuasive view is that date of creation is the solution.   The U.S. Copyright Office issued an opinion to this effect and now accepts filing for termination for gap grant works under section 203 of the act (regarding works assigned on or after 1978).  This interpretation holds that, until there is authorship, there is no copyright interest, no transfer of that interest, and no author for whom exclusive rights (not to mention termination rights) can vest.  Still, while supporting this view, the Copyright Office makes clear that whether such notices of termination fall within the scope of section 203 will ultimately be decided by the courts or by Congress.

Creators have not generally kept records of date of creation as well as they should.  Often, publishers apply an arbitrary date chosen from when a song is turned in or a single song agreement is signed. The creator needs to be accurate as to date of creation. Good record keeping is very important.

Faced with detailed issues and interpretation such as this, creators should remember that Legacyworks LLC is a leading provider of expertise for those considering termination rights and the steps important to pursuing them.


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