The Copyright Act of 1976 included two provisions governing the termination of any transfer of license of copyright rights. The date of transfer at issue determines which of the two termination provisions applies.
For transfers made on or after January 1, 1978, the relevant statutory provision is § 203, captioned “Termination of Transfers and Licenses Granted by the Author.”[1] This termination provision applies to any “exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978,”[2] except for transfers by will or transfers involving works made for hire.[3]
For living authors, the mechanics of termination are comparatively uncomplicated. The author may unilaterally terminate any transfer during a five-year period that commences thirty-five years after the date of the original grant,[4] provided that the author gives the transferee at least two years advance written notice.[5] If the grant is not terminated within the five-year window, the transferee keeps the rights for the duration of the copyright, unless the parties have agreed otherwise.[6] When the termination becomes effective, the rights conveyed in the original grant revert to the author,[7] with one important exception: derivative works prepared under the terminated grant may continue to be utilized, but no new “derivative works based upon the copyrighted work covered by the terminated grant” may be created.[8]
The death of the original author complicates matters. The time period during which termination may occur (a five-year window commencing thirty-five years after the original transfer of rights) remains the same,[9] as
does the written notice requirement.[10] Different parties, however, become
- ↑ 17 U.S.C. § 203 (2006).
- ↑ § 203(a). The words “by the author” signify that the termination provisions do not govern “transfers by the author’s successors in interest[.]” H.R. Rep. No. 94-1476, at 125 (1976); see also 17 U.S.C. § 101 (defining “transfer of copyright ownership”).
- ↑ See § 203(a).
- ↑ § 203(a)(3). This general rule is subject to a proviso where the original grant of rights included the right of publication of the work. In such a case, the five-year window during which the transfer may be terminated begins at the earlier of: (1) forty years after the grant, or (2) thirty-five years after publication of the work. Id.
- ↑ § 203(a)(4). This provision of the statute also establishes requirements for the form and content of the written notice. It further provides that notice of termination may not be given more than ten years in advance. See id.
- ↑ § 203(b)(6); see also Walthal v. Rusk, 172 F.3d 481 (7th Cir. 1999) (construing licensing agreement that was silent as to duration as permitting termination at will at any time). But cf. Rano v. Sipa Press, Inc., 987 F.2d 580, 585–86 (9th Cir. 1993) (refusing to construe copyright licensing agreement as terminable at will). See generally H.R. Rep. No. 94-1476, at 128 (noting that termination provisions were not intended to limit parties’ freedom to negotiate a license for a term shorter than thirty-five years).
- ↑ 17 U.S.C. § 203(b).
- ↑ § 203(b)(1).
- ↑ § 203(a)(3).
- ↑ § 203(a)(4).
