How Copyright Owners Can Get Back Their Rights

A Passing Opportunity for Authors & Composers to Break Bad Contracts

Updated August 2018

Publishers beware.  The copyright termination time bomb is ticking away.  In 2018 alone, copyrights to thousands of the publishing and entertainment industry's cash cows -- backlist books and songs -- reverted to authors and composers.  

Some call it "contract bumping."  This powerful "re-valuation mechanism" found in the Copyright Act allows copyright owners (and their heirs) to terminate publishing and other copyright grants 35-years after execution.  

This powerful right can void even agreements that state they are in perpetuity.  Currently, if the original contract date is between 1980 and 1993 you may serve notice of termination.  Bear in mind that termination will actually occur during a 5 year period starting 35-years after the grant was signed.  The actual date of termination is calculated by the terminating party.   If the notice is sent too early (or too late), or the termination date you selected is incorrect, the claim may fail.       

The full impact of the loss of  evergreen or backlist titles is just beginning to be felt in the book, film, music, theatre and art worlds.  With the ability to recapture rights, access to self publishing tools and digital on-demand technology, the beneficiaries of the copyright termination right must decide how much faith they should place in their existing publisher and producer relationships.  

The Policy Reasons Behind the Termination Right

To protect authors of older works from having to live with a bad deal they entered into when they had little negotiating skill or leverage, the Copyright Act allows authors (and their heirs) to recapture copyrights by sending notices of termination to their publisher and producer partners. This often overlooked, but powerful right, serves as an “insurance policy” for authors who signed away their rights for less than adequate compensation.

Section 203 of the “new” Copyright Act applies to grants of copyrights signed on or after January 1, 1978 by the author -- not grants signed by an author's heirs. As long as the work being terminated is not a “work made for hire,” the right of termination cannot be waived -- even if there are contractual provisions to the contrary.   In short, copyright law trumps contract law.  One of the idiosyncrasies of the termination right, is that it does not apply to foreign grants.  However, under UK law, heirs can recapture rights twenty-five years after the death of an author.  Known as British Reversionary Rights (BRR), these rights are analogous to our recapture and termination rights.
Alert! Be very careful of what you are asked to sign by agents, publishers, producers and other copyright licensees.  If you sign a new agreement for the same rights, you may have nothing left to terminate.   Consult a copyright attorney.  The opportunity to break a contract comes around just once every 35 years.  If what you unwittingly signed is  a revoke and re-grant of rights agreement, likely, you did not enjoy the full benefit of your copyright termination right.
This lucrative right of termination does not concern itself with when a post-1977 work was registered with the Copyright Office.  Succinctly stated, “Termination may be exercised at any time during a period of five years beginning at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever is earlier.” 

Countdown to Copyright Termination (for Books, Songwriter Agreement and Recording Contracts)

The Copyright Act and the administrative rules that apply to termination and recapture of copyrights are dense and unforgiving.  Some might call them hellish.  For example, if you serve your Notice of Termination late, it is considered a fatal mistake under the law.  And, the process is not considered complete until the Notice of Termination has been recorded with the Copyright Office, which must be prior to the date of termination.  You can serve a Notice of Termination as early as ten years before the effective date of recapture, or as late as two years before the effective date of recapture.  The author (or his heirs) selects the date termination will take effect, and must send a Notice of Termination within the termination window outlined in the Copyright Act. 

Example 1:  If a novel was published in 1987, rights could be recaptured as early 2022, i.e., 35 years after the date of initial publication.  In this instance, 2012 is the earliest the Notice of Termination can be served, i.e., ten years before the recapture date.  The latest Notice of Termination could be sent is 2025 -- two years before the latest possible termination date.
In addition to serving the notice, the notice must be recorded with the U.S. Copyright Office.  Similar to filing a release of a mortgage on real property, filing a Notice of Termination enables a copyright owner to own free and clear their domestic copyright rights.  If properly filed, the Notice of Termination becomes part of the work's chain of title. If anyone reviews the Copyright Office’s database, it would explain who the controls rights. 

Faulty & Late Notices

Calculating the notice and recapture dates are the author's (or author's heirs) sole responsibility.  The Copyright Office cannot draft Notices of Termination, or calculate the notice and recapture dates for you.  Therefore, it is strongly advised that you consult with a knowledgeable copyright attorney.

Reclaiming Rights to Pre-1978 Works
Example 2: For a work registered with the U.S. Copyright Office on 1/20/1965, the last possible reversion date is 1/20/2026, provided you send a notice on or before 1/20/2024.
Keep in mind that the Copyright Act also provides an inalienable right to terminate pre-1978 works.  Over time, Congress increased the term of copyright protection from 56 years to 75 years.  In 1978 Congress amended the Copyright Acts again, extending the renewal term to a full 95 years.  This subset of the Copyright Act provides for termination at any time during the five year period beginning at the end of 56 and 75-years from the date the copyright was originally secured.  

A special circumstance exists if the author of a pre-1978 work dies during the initial 28-year term of copyright.  If the author died during the initial term of copyright, their statutory heirs  have the right to reclaim the renewal copyright.  In this instance, what is at stake is the balance of the remaining copyright term or 67-years.

What is extraordinary about this right, is that it trumps an artist, writer or composer's will.
Example 3.  Miles Davis, the jazz icon, died in 1991, before the end of the 28th year of copyright of his revolutionary 1970-album Bitches Brew.  Because he died before the 28th year of copyright, his renewal term rights in the song Bitches Brew vested automatically in his four statutory successors -- two of whom were not actually mentioned in his will.   It also severed ties to his music publisher.  Today, his three sons (including the two not included in their father's will) and a daughter, jointly control the remaining 67-years of copyright in Bitches Brew and certain other songs.   Here, the Copyright Act rewrote both Miles Davis' will and his songwriter agreements.

Similarly, in 1938 Jerry Siegel and Joe Schuster, two young men from Cleveland, Ohio, signed over all of their rights to the Superman character to DC Comics for $130.00 and vague promises of future work. To address this, and similar economic injustices, Congress gave authors (and their heirs) a second chance to strike better financial deals. As a result, starting in 1999, using Section 302 of the Copyright Act, Siegel’s heirs recaptured his rights to the Superman character. Fortunately, you don’t have to be related to a man of steel to reclaim copyrights. The heirs of Hank Williams, William Saroyan, Truman Capote, Joe Young, Lorenz Hart, and many others have availed themselves of these valuable rights. 

Advice for Heirs 

While the Copyright Act was designed to provide for authors and their families, it is not in the interest of publishers or record labels to provide education about termination rights.  Further, be wary of what you are asked to sign.  It is easy to inadvertently waive this powerful right.  

If you are thinking about exercising your termination rights, or need assistance renegotiating an eligible entertainment or publishing agreement, call us.  We can help you: (i) identify which copyrights are eligible for termination; (ii) determine who is the proper party to exercise those termination rights; (iii) prepare and record your Notices of Termination; (iv) assist you recover rights to copyrighted works you thought were irrevocably assigned or bequeathed to others; (v) if you wish, use your increased bargaining power to renegotiate your existing contract; or (vi) work cooperatively with your trusts and estates attorney on reopening an estate, or seeking copyright damages that flow from a determination of ownership or co-ownership of a recaptured copyright. 

The Bottom Line

If you serve a Notice of Termination after the window closes, you forfeit your right to terminate.  

Not Legal Advice. The information contained in this blog is intended as general advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information publishing here. Be aware that the law may vary from state-to-state. Therefore, this blog cannot replace the advice of an experienced attorney. No attorney-client relationship is created by your access to or use of this website. Contacting us by email does not create an attorney-client relationship. If you wish to establish a professional relationship, it must be done through mutual agreement in writing. Please do not send us any confidential information until an attorney-client relationship has been established.


LLOYD J. JASSIN is a New York-based publishing and entertainment attorney with a special interest in copyright and trademark matters. He is co-author of The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers (John Wiley &Sons, Inc.)  He has taught publishing courses at New York University-School of Professional Studies.  For a consultation, contact:  Jassin@copylaw.com or at (212) 354-4442. His offices are located at 1501 Broadway, Floor 12, New York, NY 10036. Visit www.copylaw.org.


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