How to Terminate Your Publishing Contract (or, Strike a Better Deal)

The Copyright Act Wants You to Terminate Your Publishing Contract  

Updated August 5, 2021

The copyright termination time bomb is ticking . . . and publishers are very scared. This past year thousands of book and song titles were reclaimed by authors and composers who had the foresight (and technical skills) to serve statutory Notices of Termination on their publisher partners.  
 
Most publishing agreements specify they are for the life of the copyright, i.e., your life plus 70 years. In actuality, life of copyright contracts are unenforceable. What makes them unenforceable? To protect authors of older works from having to live with a bad deal they negotiated in their youth, the Copyright Act gives authors (or their heirs) an opportunity to get back their rights. As long as the work is not a work-for-hire, the right of termination cannot be waived -- even if there are contractual provisions to the contrary.
 
Looking to the future, a popular songwriter or bestselling author of a work published in 1990 will be able to recapture their rights as early as 2025 (or as late as 2030) by sending a properly timed statutory Notice of Termination, and recording the document with the U.S. Copyright Office.  As with many things, timing is everything. 
 
Caution! There are two very different termination roadmaps -- one for works registered or published on or before December 31, 1977, and another for contracts signed on or after January 1, 1978. Each has different windows of time when notices must go out, and different rules for when termination goes into effect. When the contract was signed, who signed it, when the work was registered or published, must also be given consideration.

Post-1977 Works (the 35 Year Rule)  

Some call it "contract bumping."  This powerful renegotiation opportunity allows copyright owners (and their heirs) to terminate copyright grants that include the right of publication 35-years after signing.  
 
Bear in mind that termination will actually occur sometime during a 5-year period starting 35-years after the grant was signed. The exact date is determined by the terminating party.  If a termination notice is sent too early (or too late), or does not comply with tedious statutory requirements of the U.S. Copyright Act, the termination right is waived.      

 
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-for-hire, the right of termination cannot be waived.
 
As a general rule, foreign rights cannot be terminated. Another exception concerns derivative works. Derivative work created prior to termination can continue to be exploited post termination - subject to a duty to account to the author. To further complicate matters there are exceptions to the exceptions. For example, under UK law, an author or composer's heirs can recapture rights twenty-five years after the author or composer's death. Known as British Reversionary Rights (BRR). these rights are available in the United Kingdom and in most former British Commonwealth countries.  While there's a commonality between UK and British Commonwealth recapture rules, the when rights revert varies from country to country.     
Alert!  If you sign a new agreement in exchange for a royalty uplift, or other consideration, unbeknownst to you, you may be signing away your termination rights. The opportunity to break a contract comes around just once every 35 years.  Before you unwittingly exchange your old contract for a shiny new one, consult with an attorney to make sure you are not leaving money on the negotiation table.  Bottom line, this is an excellent time to negotiate new terms, and ask for things such as a new jacket and promotional support.  
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 has been recorded with the Copyright Office, which must be prior to the date of termination.  You can serve a notice as early as ten years before the termination date, or as late as two years before the termination date you've selected. 
Example 1:  Novel published in 1987.  Rights can  recaptured as early 2022 by serving notice as early as  2012 or as late as 2020. The latest termination date is 2027, requiring that notice be served as early as 2017, but no later than 2025.  If the author has died, his heirs have the right to serve the termination notice.  .
In addition to serving the notice, the notice must be recorded with the U.S. Copyright Office.  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. 

Calculating the notice and recapture dates are solely the author's (or author's heirs) responsibility.  The Copyright Office cannot draft Notices of Termination or calculate notice and recapture dates for you.  You are strongly advised to consult with a knowledgeable copyright attorney.

Reclaiming Rights to Pre-1978 Works (the 56 Year Rule)
Example 2:  Novel registered with U.S. Copyright Office January 1, 1965.  The last possible reversion date is January 1, 2026, provided notice is sent prior to January 20,2024. If the author has died, his heirs have the right to serve the termination notice.
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.  In 2019, works that were copyrights between 1960 and 1977 can be noticed for termination. 

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 author 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.  
 
Copyright Office Resources
 
 

 
 
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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.  URL: www.copylaw.org.


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