The Copyright Act provides authors and enumerated family members with the power to terminate certain grants upon the completion of paperwork. The termination provisions, 17 U.S.C. §§ 203, 304(c) and 304(d), apply to, among other things, exclusive licenses, non-exclusive licenses, assignments, mortgages, and conveyances. The termination provisions, however, do not provide the right for an author or family members to terminate a "work made for hire" or grants made by will.
Congress enacted the termination provisions to give an “author a second chance to control and benefit from his work" and to "secure to the author's family the opportunity to exploit the work if the author died." Stewart v. Abend, 495 U.S. 207, 218 (1990).
Included below is a calculator designed to help people evaluate the status of termination rights. The Copyright Act’s termination provisions are among the more complex areas of the statute. The calculator does not address all of the issues necessary to make an evaluation of whether an individual or group may terminate a copyright grant. Most notably, the tool does not address the number and structure of decadents needed to terminate a pre-1978 grant when an author passed without a will. The tool should nonetheless provide a decent starting point. If you are an individual or publisher who is interested in evaluating the status of termination rights you should seek the counsel of an attorney with a background in copyright law.
Termination Calculator
Enter the date of the grant (MM/DD/YYYY):
You entered that the date of the grant was .
The grant was made by the:
author or authors.
author's widow or widower, grandchildren, executor, administrator, personal representative, or trustee.
You entered that the date of the grant was
and that the grant was made by the author's widow or widower, grandchildren, executor, administrator, personal
representative, or trustee.
Pursuant to 17 U.S.C. § 203, you will not likely be able to effect a termination. Grants made on or after January 01, 1978 must be "executed by the author" to be terminable. 17 U.S.C. § 203(a).
You entered that the date of the grant was and that the grant was made by the author or authors.
Did the grant include the right of publication?
yes
no
You entered that the date of the grant was , that the grant was made by the author or authors, and that the grant did not include the right of publication.
Pursuant to 17 U.S.C. § 203, the grant may be terminated between and . The termination is effected by serving advance written notice on the grantee between two and ten years before the termination date, and recording the notice with the Copyright Office before the termination date. 17 U.S.C. § 203(a)(4)(A).
You entered that the date of the grant was , that the grant was made by the author or authors, and that the grant did not include the right of publication.
Pursuant to 17 U.S.C. § 203, the grant may be terminated between and . The termination is effected by serving advance written notice on the grantee between two and ten years before the termination date, and recording the notice with the Copyright Office before the termination date. 17 U.S.C. § 203(a)(4)(A).
You entered that the date of the grant was , that the grant was made by the author or authors, and that the grant included the right of publication.
Enter the date of publication (MM/DD/YYYY):
You entered that the date of the grant was , the grant was made by the author or authors, the grant included a right of publication, and that the date of publication was .
Pursuant to 17 U.S.C. § 203, the grant may be terminated between and . The termination is effected by serving advance written notice on the grantee between two and ten years before the termination date, and recording the notice with the Copyright Office before the termination date. 17 U.S.C. § 203(a)(4)(A).
Was the work created on or after January 01, 1978?
yes
no
You entered that the date of grant was
and that the work was not created on or after January 01, 1978.
What was the date that federal copyright was registered/secured (MM/DD/YYYY)?
You entered that the date of grant was and the work was created after January 01, 1978.
The status of these works is unclear. The Copyright Office recently issued a Request for Comment to determine what termination provision, if any, governs these works. The Copyright Office in its request included two examples of this situation:
Example 1: A composer signed an agreement with a music publisher in 1977 transferring the copyrights to future musical compositions pursuant to a negotiated fee schedule. She created numerous compositions under the agreement between 1978 and 1983, some of which were subsequently published by the publisher transferee. Several of these achieved immediate popular success and have been economically viable ever since. The original contract has not been amended or superseded.
Example 2: A writer signed an agreement with a book publisher in 1977 to deliver a work of nonfiction. The work was completed and delivered on time in 1979 and was published in 1980. The book's initial print run sold out slowly, but because the author's subsequent works were critically acclaimed, it was released with an updated cover last year and is now a best seller. The rights remained with the publisher all along and the original royalty structure continues to apply.
You entered that the date of grant was ,
that the work was created before January 01, 1978,
and that the federal copyright was registered/secured on .
Pursuant to 17 U.S.C. § 304(c), you may be able to terminate the grant between and . The termination is effected by serving advance written notice on the grantee between two and ten years before the termination date, and recording the notice with the Copyright Office before the termination date. 17 U.S.C. § 304(c)(4)(A).
Has the author or owner of the termination right previously terminated a grant?
yes
no
You entered that the date of grant was ,
that the work was created before January 01, 1978,
that the federal copyright was registered/secured on ,
and that the author or owner of the termination right previously terminated a grant.
Pursuant to 17 U.S.C. § 304(d), you are unlikely to be able to terminate the grant because the author or owner of the termination right previously terminated the grant. The Act allows an author or owner of the termination right to exercise the right if they have "not previously exercised such termination right . . ." Id.
You entered that the date of grant was ,
that the work was created before January 01, 1978,
that the federal copyright was registered/secured on ,
and that the author or owner of the termination right has not previously terminated a grant.
Pursuant to 17 U.S.C. § 304(d), you may be able to terminate the grant between and . The termination is effected by serving advance written notice on the grantee between two and ten years before the termination date, and recording the notice with the Copyright Office before the termination date. 17 U.S.C. § 304(d)(2), referencing 17 U.S.C. § 304(c)(4).
Two children of a comic book illustrator sent a series of copyright grant termination notices to Marvel Comics. Marvel contended that the illustrator’s drawings were works made for hire, and as such, the children were not able to terminate the grants. After unsuccessful negotiations, Marvel brought suit seeking a declaratory judgment finding that the works were made for hire. The two children moved to dismiss the New York action arguing that the court lacked personal jurisdiction, and filed a second suit in the Central District of California.
New York’s long arm statute provides that a party is subject to personal jurisdiction if it “transacts any business in the state or contracts anywhere to provide goods or services in the state” if the cause of action arises from the transactions or business. CPLR 302(1). The S.D.N.Y. (McMahon, J.) found that the two children had transacted business in the state by virtue of sending the termination notices. According to the Court:
Defendants dispatched a multitude of self-executing Termination Notices to Marvel entities and licensees in New York in September 2009. This constitutes “transacting business” under section 302(a)(1). By virtue of having mailed the transaction notices to Marvel [the two Kirbys who live in California] “project[ed] themselves into New York and the local stream of commerce.” John Wiley & Sons, Inc., 2009 WL 1766003 at *5.
Notice: The opinions expressed on this blog are mine alone and do not necessarily reflect those of any of my current
or former clients. Any information you submit to me via email will not be considered an attorney-client communication or otherwise be treated as confidential or privileged in absence of a pre-existing express agreement by us to the contrary.
The content on this site is commentary and should not be considered legal advice.
