Copyright Recapture and Terminations of Copyright Transfers

With the passage of the 1976 Copyright Act, Congress created an entirely new property right under U.S. law – the right of authors and their successors to recapture ownership of valuable copyrights by “terminating” past assignments and licenses of those works after a prescribed period of time, even if the original grant was for the entire life of the copyright.  After termination (sometimes called “copyright recapture”), the author (or, if deceased, his/her heirs and/or statutory successors) will assume ownership of the copyright for the remainder of the copyright.

Authors, their heirs and successors need to educate themselves about terminations and be certain not to allow precious termination rights to lapse.  Publishers, distributors, recording companies, producers, studios and any other parties granted any interest in copyrighted works need to familiarize themselves with the law and plan for the future.

To help provide a basic understanding of this legal area, this website provides links to two articles on terminations written by Bill Gable. “Introduction to Terminations of Copyright Transfers,” reprinted from the California Copyright Conference April 2008 newsletter, explains generally how terminations work, and was primarily written for music industry professionals (including musicians).  “Taking It Back,” reprinted from the June 2008 issue of Los Angeles Lawyer Magazine, discusses the basic mechanics of terminations law, and was primarily written for practicing attorneys having little or no experience with terminations.  (Note that the Steinbeck case discussed in “Taking It Back” was later overturned in part by the Second Circuit, and that additional case law has developed since these articles were written.)

Since neither of these articles was written specifically with authors in mind, the discussion below focuses on their needs.

Copyright Recapture For Authors, Heirs and Their Statutory Successors

It is difficult to benefit from the law of terminations without some knowledge of how terminations work.  Please read Bill's articles.  A little knowledge and preparation can help a client keep legal costs down. Here are a few basic principles to keep in mind:

First, who is an “author?”  Many different kinds of works are protected by copyright, and are therefore subject to copyright recapture.  Eligible “authors” include songwriters, composers, recording artists, novelists, screenwriters, painters, illustrators, comic strip creators, photographers, poets, architects, choreographers, software programmers – in short, any creator of an original musical, literary, artistic or other creative work that is protected under copyright law.

Second, where an author is deceased, who are the “heirs” or “statutory successors?”  “Heirs” means people inheriting copyright interests under a will or under intestacy statutes.  The definition of “statutory successors” is contained in the Copyright Act and it will vary depending on the circumstances, but it can mean anything from a widow(er), children or next of kin, to a trustee or other representative.  It is sometimes the case that statutory successors – and not an author’s heirs – actually own a deceased author’s copyright termination rights.  Although too complex to address here, authors and their heirs or successors should utilize copyright terminations as a part of estate planning, and any heirs or statutory successors of a deceased author should consult with a qualified professional before assuming they control termination rights.

Third, what kinds of contracts may be terminated?  Generally speaking, contracts entered into before 1978 may be terminated 56 years after the copyright date of the affected work.  And contracts entered into in 1978 and later may be terminated 35 years after the date of the contract.  Keep in mind how long copyrights last. Copyrights in works copyrighted before 1978 last up to 95 years.  Copyrights in works created in 1978 and later last for the life of the author plus 70 years.  So termination allows the author, heirs or successors to recapture ownership of the copyright for many years and even decades to come.

Fourth, terminations are subject to various limitations.  “Work made for hire” contracts cannot be terminated.  That said, the law in this area is complicated and far from settled, and just because a contract says a work is a “work made for hire” doesn’t always make it so.  Until the law is clarified, termination notices for many of these works must unfortunately be filed.  Another limitation is that termination generally only recaptures U.S. rights, not rights outside the U.S.  This obviously affects the amount of revenues that will be recaptured through termination, and is worth keeping in mind.  Finally, rights to derivative works created by others using your work that were created with your consent prior to termination cannot be terminated. 

Fifth, it is important to realize that the termination provisions are very technical.  An author or his/her successors must exercise the right of termination within a specified period of time – no more than 10 and no less than 2 years prior to the effective date of termination.  And the "effective date of termination" varies, depending on the work.  Termination notices must be drafted to carefully comply with the statute, regulations and case law.  Those notices must then be served on the terminated party and filed at the Copyright Office.  If all of these requirements are not met, in most cases the right to terminate will be lost forever.  It is therefore an unusual situation in which an author should attempt to effect a termination without using a qualified professional.  Bear in mind that if you file a defective notice the receiving party knows is invalid, that party is under no obligation to advise you of that fact.

Sixth, if you are interested in recapturing your copyrights, there is a lot you can do to help yourself. This begins with collecting documents and information that will obviously be needed for the termination.  Since a “termination” always involves the termination of a specific contract (which may be written or oral), a potential client should do all they can to locate a copy of the contract (if possible) that will be terminated, and to locate paperwork identifying the name and address of the current “grantee” or party who should receive the termination notice.  For works copyrighted prior to 1978, copies of copyright registrations (where existing) or other documents and information showing when the work was first published or registered for copyright will be helpful.  Certain situations involving joint or deceased authors can require additional document and information gathering.  Bill provides his clients with helpful checklists for situations that are more complicated. 

Finally, if you are thinking about terminations, it’s time to perhaps do some strategic planning.  What should you do with a copyright once you have recaptured it? Some thought should be given to this, even if the answers aren’t readily apparent.  Using songwriters as an example, does the client want to recapture rights to as many songs as possible and then self-administer rights, or allow someone else to?  Or to assemble as many copyrights as possible and then sell the catalog? Or simply to enter into a new single song agreement with the old publisher, perhaps on better terms?  Or to sign with a different publisher?  Have revenues been sufficient to justify ordering an audit of the entity whose rights would be terminated, prior to evaluating whether you would be willing to continue doing business with them?  Are the copyrights at issue not worth enough to justify the expense of termination in the first place, and are you willing to live with that assessment knowing failure to timely terminate will cause the right to expire?  Are there problematic relationships between various co-authors or among heirs or statutory successors that could create difficulties exercising the termination rights?  It is helpful if the client has given some thought to these and any other relevant issues prior to contacting the attorney.

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The materials contained on this website are intended for general informational purposes only, may not be taken as legal advice and are expressly conditioned on and subject to the Disclaimer. (Please read the Disclaimer to better understand why it is impossible to render legal advice over this website.) Obtaining Bill Gable’s legal services requires a signed engagement letter following appropriate interviews, clearance of conflicts and payment of a retainer based upon the scope of work contemplated.