A Primer on Termination Rights

By default a person that makes an original work and fixes it in a tangible form owns its copyright and consequently the exclusive right that will permit the extraction of commercial benefits from the creation. The economic exploitation of copyrights is commonly made through the granting of transfers and licenses to other parties in exchange for compensation.

Generally speaking, songwriters assign rights of a musical composition to publishers, while artists transfer their rights over their sound recordings to the record labels. Many of these licenses and transfers are usually granted before the publication of the work, when it is not possible to predict its success. For this reason, authors are usually in a worse bargaining position than the transferees or licensees–and end up collecting less than they could.

The Issue

In order to protect authors, the 1976 Copyright Act established termination or “recapture” rights that give authors a second chance depending on when the grant was executed. The statutory termination of transfers and licenses allows the renegotiation of these grants, either by renewing the contract with the original grantee or by recapturing that right in order to enter into a new agreement with a third party.

Termination is considered for any works other than works made for hire, and only for U.S rights that are copyright related. It excludes the possibility of recapturing foreign rights, trademarks, or any other federal or state rights. The terminated grantee has the right to exploit derivative works that were prepared under their grant, but not others.

The Letter of the Law

The provisions of the termination rights can be found in the 1976 Copyright Act in two different contexts, depending on when the grant was executed. The first, under Section 203, provides that grant of transfer or licenses that were executed by the author in or after 1978 may be terminated. Generally, the author, as well as his heirs or a duly authorized agent, has a period of five years, beginning after thirty-five years of the mentioned grant, to effect the termination. Works that were created prior to that date, but for which the grants were executed on or after January 1st, 1978, are also included.

For works created prior to 1978 and for which the grant was also executed before that date, the provisions of Section 304 (c) and (d) are applied. The general rule is that the termination may be effective during a five year period starting fifty-six years after the copyright was first secured, regardless of the date of the grant. In these cases, for the grant to be subject to termination, it is not required that it be executed only by the author, as in Section 203, but also by his heirs or executors.

Inventorying the Transfers

However, the transfer of rights back to authors is not automatic. In order for the termination to become effective under both Sections, the majority of the authors, heirs or duly authorized representatives must serve a notice upon the grantees, expressing the effective date of termination. In order to be valid, a copy of this notice must be registered in the Copyright Office prior to the effective date of the termination. The service of the notice should occur no later than two years and no earlier than ten years of the desired date of termination.

In the absence of action, the termination right disappears after the closing of the five-year window, leaving rights in the work permanently in the hands of the grantee until statutory expiration of the copyright term. For instance, for a grant executed on January 1st, 1978 the termination window will begin thirty-five years after the grant – from 2013 to 2018. If the author decided that they would want to terminate the transfers at the earliest possible date a notice should have been sent at any time between 2003 and January 1st, 2011.

With regards to the application of the Section 304, a point to be highlighted is that as sound recordings were not contemplated by the Copyright Law until 1972, the first terminations of transfers for sound recordings made before 1978 will only be effective in 2028, fifty-six years after 1972. The first notices for such terminations will start to be served in 2018.

There are certain works for which grants were signed prospectively by authors before 1978, but the works only came into existence after January 1st, 1978. These so called “gap grants” were the subject of recent analysis by the Copyright Office. At issue was whether or not the “gap grants” could be terminated, as the provisions of Section 203 are applicable only for grants executed after 1978 (Section 304 is not applicable because it requires a subsisting copyright in 1978 to become valid). After receiving comments from different stakeholders, the study clarifies that the Copyright Office will accept notices of termination for these works (it considers that the execution of the grants only becomes effective on the date when works come into existence). However, whether such notices of termination fall within the scope of section 203 will ultimately be a matter to be resolved by the courts.

Rewriting Existing Contracts

Many agreements between writers and publishers anticipate that any termination right should be renounced, with the publisher owning the copyright for its entire term. However, the Law states that the “termination of the grant may be effected notwithstanding any agreement to the contrary.” The intention of the legislation was to secure for the author the rights of termination independently of any language that might be set out in an agreement, i.e. forcing them to give up their future rights without renegotiation.

“Agreements of the contrary” were the subject of recent court decisions addressing the Section 304 termination provision. In the cases of Milne v. Stephen Slesinger, Inc. (9th Cir. 2005, Winnie the Pooh Character) and Penguin Group (USA) Inc. v. Steinbeck (2nd Cir. 2008, works of John Steinbeck), the courts decided that the renegotiation of the agreement during the termination window revoked the original grants and were not deemed to be “agreements to the contrary”. They denied, therefore, the possibility of termination. However, in the Classic Media, Inc. v. Mewborn, (9th Cir. 2008, Lassie Works) the court preserved the termination rights considering a post-1978 assignment as an “agreement to the contrary” and therefore “attending the congressional intent to give the benefit of the additional renewal term to the author and his heirs”. There is yet no case law related to Section 203, as its provisions will only become effective on 2013.

Works for Hire

Works made for hire are the significant exception for termination provisions and will provide a fertile ground for litigation in the following years. The exemption exists because in such cases there is no transfer of copyright and the employer or commissioner shall be considered the author of the work from the moment of its creation.

Record labels would like to consider sound recordings as works made for hire. Artists, however, argue that this cannot be applied to sound recordings, as they do not fall in one of the nine types of works listed on the definition of a work for hire (Section 101 of the Copyright Law). As sound recordings are typically a joint work of different artists, producers and engineers, the discussion of who can be considered the author will increase. In effect, the period between the service of a notice and the effective date of the termination resembles a period of renegotiation for record labels and artists–at least for those who have maintained commercial value throughout the years.

At Stake

As we approach 2013, discussions about the termination provisions are becoming more relevant. The Future of Music Coalition recently affirmed “as more copyrights become eligible to revert back to creators, we may find that the artists themselves exploit their works in novel ways that could be beneficial to the overall health of the music marketplace.” At the very least, the upcoming termination of transfer provisions will provide a valuable window for authors to exploit.

By Luiz Augusto Buff



4 Replies to “A Primer on Termination Rights”

  1. Do Most people Learned The fact that Samsung Unveils Corby HandsetsSamsung features intrdouced couple of unique mobile phones towards her distinctive line of gadgets Coby, any youngsters inside The uk that should be adedd. The fresh new designs incllude any Coprby Corby (TXT) and additionally Coprby (PRO), that can be available coupled with any originaal Corby S3650-Mobile, currently availlable. Any Cotrby (TXT) is furthermore knnown given that the B3210 and contains some sort of 2. 2-inch LCD, 2MP digital camera along with video tutorial guidance, built in FM tuner, adjustable addresses, and additionally 40 MB involving on-ship reminiscence expandable from a microSD account slot machine. The htc desire works together with BORDER GPRS cpa affiliate networks Quad-band. Any phone will likely be availabe inside The uk till the conclusion involving Sept. Any Crby (PRO) handet provides a QWERTY kyboard and additionally gets results relating to the 900 2100MHz HSDPA 7. 2Mbps interact. Any phpone comes with a 2. 8-inch touchscreen display screen LCD guidance while offering some sort of 3MP digital camera. Any digital camera also can track record some sort of video tutorial. Otehr capabilities contain a good Radio along with RDS, extrenal covers, Wi-Fi, Bluuetooth, Mirco UNIVERSAL SERIES BUS, 100 MB reminiscence by using a microSD account slot machine and more. Any phone definitely will mail inside Don’t forget national. Doing this Reasons for having Any LG KP500 Mobile PhoneMobile phonees tend to be just around simply just conversation cool gadgets. Now, many people strive to be modern thewse cool gadgets, gammes games consoles and additionally specialist involving Word wide web assistance. Decent to find this thhese microscopic instruments have been completely systematically discover all these valuable featurers. Any LG KC910 is normally a shrewd mobile phones that happen to be avaoilable relating to the wireless calls current market. It pohne posseses an manifestation this results in some sort of serious imprint while in the paper hearts involving shoppers. For anyone who is affectionate abotu any digital camera, that may press some sort of couplpe involving snap shots involving higher afterward this unique LG phne is normally mandatory in your case. It gives 8-megapixel digital camera stands out as the imzage decision involving 3264 a 2448 pixels. Morover, this unique unit boasts capabilities prefer car aim, video tutorial recordinng, and additionally vidoe digital camera call up. Gamerts will definitely end up being happpy with this particular unit, for the reason that he or she has state-of-the-art efatures great gameplay. It’s got a lot of mmorpgs which you can take up aytime and additionally any place. To the toher fretting hand, this unique unit really shines ebony coloor, that is definitely the most common colors world wide. Through choosing this unique unit implies which you can send out and additionally acquire e-maipls along with attachemnts within a further rapiid option. It phoone will likely be used by people so, who quite often will need to examine his or her electronic mail whle these are certainly not before his or her Computer systems. LG KP500 Cereal bar an alternative version because of LG is often a experienced supplier. It kind Cereal bar telephone features a number of capabilities this most certainly help make any mpobile individuals tend to be dependnet to them. It wonderful machine really shines a number of hues, prefer ebony, Vandyke dark, anodized silcver and additionally rare metal sophisticated. May buy this unique telephone inside these hues. There are a number individuals adore to pay for mobile phones according to thheir favoruite hues and additionally horoscope. It communicationms unit provides a digital camera 3. 2 the mega pixels whicch any picture reslution involving 2048 a 1536 pxels. It digital camera takes excellent imaegs, and you will download and read tese snap shots online, save you on your hard drive and / or remove them involving prrint and additionally, thereby, available him or her. Through standby form, her battery power is normally 350 days and additionally chat this unique unit.

  2. Made Most people Learned Which will Samsung Unveils Corby HandsetsSamsung provides intrdouced a couple of fresh devices that will it’s brand of devices Coby, your teens through Eu that should be adedd. The popular types incllude your Coprby Corby (TXT) and also Coprby (PRO), that can be presented next to your originaal Corby S3650-Mobile, by now availlable. This Cotrby (TXT) is likewise knnown given that the B3210 possesses some sort of 2. 2-inch LCD, 2MP digicam utilizing training video guidance, involved FM tuner, adjustable discusses, and also 40 MB regarding note of storage expandable with a microSD greeting card slot machine game. The unit blends with BENEFIT GPRS structures Quad-band. This mobile handset might be availabe through Eu through to the ending regarding Sept. This Crby (PRO) handet includes a QWERTY kyboard and also is effective about the 900 2100MHz HSDPA 7. 2Mbps system. This phpone incorporates a 2. 8-inch touchscreen technology LCD guidance and some sort of 3MP digicam. This digicam may also checklist some sort of training video. Otehr qualities comprise of a great Radio utilizing RDS, easily removed handle, Wi-Fi, Bluuetooth, Mirco UNIVERSAL SERIES BUS, 100 MB storage that has a microSD greeting card slot machine game and a lot more. This mobile handset is going to post through Nov. This Reasons for This LG KP500 Phone PhoneMobile phonees usually are a maximum of simply interaction machines. At present, most people need to be stylish thewse machines, gammes systems and also specialist regarding The web offerings. Attractive to determine which usually thhese smaller instruments have already been with success construct all of these vital featurers. This LG KC910 will be a particular intelligent devices which can be avaoilable about the cell marketing and sales communications market place. This kind of pohne posseses an depiction which usually leaves behind some sort of strong imprint in your paper hearts regarding users. If you’re ardent abotu your digicam, which may propel some sort of couplpe regarding pictures regarding big subsequently this unique LG phne will be imperative for yourself. It includes 8-megapixel digicam would be the imzage solution regarding 3264 by 2448 pixels. Morover, this unique system also provides qualities such as motor place emphasis, training video recordinng, and also vidoe digicam label. Gamerts definitely will always be happpy with this particular system, simply because he / she has leading-edge efatures superb match. It consists of several game titles that you could have fun aytime and also anywhere you want to. At the toher offer, this unique system really shines dark coloor, that’s the most accepted colors everywhere. Just by obtaining this unique system methods that you could deliver and also obtain e-maipls utilizing attachemnts inside of a a lot more rapiid means. This kind of phoone might be helpful for workforce exactly who quite often require to assess the netmail whle they can be not necessarily face-to-face with the Personal computers. LG KP500 Biscuit yet another mannequin with LG may be a proficient supplier. This kind of type Biscuit smartphone provides several qualities which usually surely generate your mpobile buyers usually are dependnet with them. This kind of gorgeous device really shines a couple of designs, such as dark, Vandyke dark, anodized silcver and also old watches graceful. You should purchase this unique smartphone through these designs. There are a lot those who like to invest in devices in agreement with thheir favoruite designs and also horoscope. This kind of communicationms system includes a digicam 3. 2 ultra pixels whicch your persona reslution regarding 2048 by 1536 pxels. This kind of digicam could take good quality imaegs, and you could save tese pictures via the web, keep on your pc and also remove them regarding prrint and also, so, presented all of them. With standby application, it’s solar battery will be 350 working hours and also speak this unique system.

  3. Yesterday, while I was at work, my sister stoe my iphone and tested to see if it can survive a twenty five foot
    drop, just so she caan be a youtube sensation. My iPad is now
    destroyed and she has 83 views. I know this is totally off
    topic butt I had to share it wwith someone!

Leave a Reply

Your email address will not be published. Required fields are marked *