Reclaiming Your Rights as an Author

Photo by Júnior Ferreira

You painted a masterpiece, wrote a hit screenplay, or recorded a  Billboard Hot 100 song, but you sold your copyright before your work was recognized for its great worth. What can you do now that someone else is reaping all the benefit of your creative work? Take it back!

The Copyright Act provides a means for authors and their heirs to terminate copyright agreements under certain circumstances—specifically providing the right to terminate the exclusive or nonexclusive grant of a copyright transfer or license. These so-called “termination provisions” (found in Sections 203, 304(c), and 304(d) of the Copyright Act) depend on a number of factors, including when copyright protection was originally secured for the work, when the grant was made, and who executed the grant. It is important to note that grants made via will or involving a “work made for hire” (a work that was created under an employment relationship or otherwise meets the requirements of Section 101 of the Copyright Act) may not be terminated under the Copyright Act’s termination provisions. Otherwise, follow these steps:

 Step 1: First ask, “do I have authority to terminate the grant?”

            If you are the sole author of the work, then the answer is, generally, “yes.” Go to Step 2. If you are a joint author of the work, then the following rule applies:

• If the grant was made prior to January 1, 1978, then any of the joint authors can terminate the grant to the extent of his or her own share in the work

• If the grant was made on or after January 1, 1978, then a majority of the joint authors are required to terminate the grant

If you are a widow or widower of the author, and if the author had no surviving children or grandchildren, you can unilaterally terminate the author’s grant—otherwise, you have one-half termination interest and the surviving children and grandchildren share the other half. You can also terminate the author’s grant if you are the author’s executor, administrator, personal representative, or trustee; but only if the author has no living widow, widower, children, or grandchildren. Lastly, if you executed the grant as the author’s heir, you can generally also terminate the grant.

Step 2: Next ask, “when will I be able to terminate the grant?”

The Copyright Act provides a five-year statutory window, or a “termination period,” during which a grant may be terminated.

If the author or author’s heirs executed the grant prior to January 1, 1978, then the five-year termination period begins 56 years from the date copyright protection was originally secured for the work, or January 1, 1978 (whichever is later). These rules also apply if the author executed the grant prior to January 1, 1978, but the work was created on or after the date of the grant (called a “gap grant”). 

If the author executed the grant on or after January 1, 1978, and if the grant did not include a right to publish the work, then the five-year termination period begins 35 years from the date the grant was executed. If such grant did include the right to publish the work, then the five-year termination period begins 35 years after the work is published or 40 years from the date the grant was executed (whichever is earlier). The right of termination for grants executed on or after to January 1, 1978 may only be exercised once for each copyrighted work.

Step 3: Then ask, “how do I effectuate a valid termination?”

To terminate a grant, the qualifying party in Step 1 above must (1) serve a written, signed notice of termination on the grantee (the party that received the grant that is being terminated) or the grantee’s successor-in-interest within 2-10 years prior to the proposed date of termination (the date that falls within the termination period in Step 2 above), and (2) record a copy of the notice as-served with the Copyright Office along with the required fee and Notice of Termination Cover Sheet prior to the proposed date of termination. 

If you are terminating a “gap grant” then your notice of termination must state that the date of the grant’s execution is the same date that the work was created.

Once the above three steps are correctly and lawfully executed, the termination right “vests” and the termination is effective on the stated date of termination—the prior grantee will automatically no longer have the right to use the work under the terminated grant. Importantly, however, if a grantee creates a derivative work under the grant prior to termination, the grantee may continue to use such derivative work per the terms of the original grant (but cannot create any new derivative works without a new grant). 

Many successful artists, particularly songwriters and musicians, have suffered the negative effects of granting copyrights early-on for quick cash or promises of fame. Even so, artists should not continually be punished for making these choices, but should have the opportunity to once again benefit from their creative labors. The termination process is complicated and requires strict adherence to facts and dates, but an attorney experienced in copyright law should be able to help you understand your rights. After all—it’s your work, your original creation, your valuable contribution to the arts. Reclaim what’s yours.

For more information on this article and this topic, contact Charles Wallace.