“Copyright Termination” is the legal term for the right of an author of a copyright to terminate any transfer of interest of that copyright. For our purposes, the most common examples of transfers that may be terminated are publishing agreements, administration agreements and co-publishing agreements. Terminations of Transfers are often referred to conversationally as “Terminations”, which is what we’ll call them from here on out.

Put simply—At a certain date, the author (or, in some cases, his/her heir or heirs) has the legal right to take back whatever rights have been transferred in the document, provided that some very specific rules are followed.

Why don’t publishers just get the author to assign away his or her Termination rights in the original transfer document so that the author can’t Terminate later?

Termination rights are inalienable, that means they cannot be transferred by the author, no matter what the language says in the transfer document. However, beware--they can be transferred by heirs in some instances.

Wait--Aren’t there different copyright acts?

Yes, there are two bodies of U.S. copyright law that are very different. The Copyright Act of 1909, which we’ll call the “Old Act”, governs all copyrights originally registered on December 31, 1977 or earlier. The Copyright Act of 1976, which we’ll call the “New Act”, governs all copyrights originally registered on January 1, 1978 or after. The New Act can be confusing because of the year discrepancy (“1976” vs. “1978”), so the best way to keep it all straight is remember that the Copyright Act of 1976 became effective as of 1/1/78.

So, how does the Old Act work?

Copyrights governed by the Old Act have four separate periods of protection. The first term of protection is called the “Initial Term” or “Original Term” and lasts 28 years from the date of registration. The second term of protection is called the “Renewal Term” and also lasts 28 years. The third term of protection is called the “Bonus Term” and lasts 19 years. The fourth term of protection is called the “Extended Term” or “Bonus Extended Term” and lasts 20 years.

Under the Old Act, it used to be the case that if an author (or his or her publisher) did not affirmatively renew a copyright, it fell into the public domain (i.e., lost all protection) and therefore, was only protected for the Initial Term. Because a lot of authors were losing their rights solely because their publisher was “asleep at the wheel”, the law was changed. Now, any copyright originally registered between January 1, 1964 and December 31, 1977 automatically renews, no matter what. For the remainder of this Q&A, we will assume that the Old Act copyrights in question were properly renewed, be it affirmatively or automatically, and gained protection for the other terms of protection.

Ummm, OK, now what about the New Act?

Copyrights governed by the New Act have one period of protection: Life of the author plus 70 years. Therefore, when an author dies, his or her copyright is protected for another 70 years past the date of death. It’s a lot easier because there are not multiple periods of protection. Therefore, there are no renewal issues with New Act copyrights.

So do the two Acts work differently for Terminations?

Not Necessarily. The key thing to determine is the date of execution of the transfer document you wish to terminate. If the execution date occurred on or before 12/31/1977, then you must use the time periods set forth in the Old Act to determine the effective Termination Date. If the execution date occurred on or after 1/1/78, then you use a set period of 35 years from the execution date to determine the effective Termination Date.** Therefore, Terminations regarding transfer documents executed after 1/1/78 will not be of concern until 1/1/2003 at the earliest (full explanation below).

Yeah, that’s great and all, but how does an author terminate?

Well, an author has to do two separate things to effect a Termination, regardless of the execution date of the transfer document:

(1) First, a notice of termination has to be given to the previous publisher at least 2 years (but not more than 10 years) prior to the Termination Date.

(2) Second, a copy of this notice has to be filed with the Copyright office before the Termination Date.

If an author fails to do either one of these, then the rights stay with the previous publisher.

And when does this happen?

Well, for transfer documents executed on or before 12/31/77, an author can Terminate at any time during two separate 5 year periods:

(1) Beginning at the expiration of the combined Initial & Renewal Terms (i.e., 56 years past the original registration date), which will return the rights to the author for the remainder of the Bonus & Extended Terms combined (i.e., a maximum of 39 years); or

(2) If the author did not terminate after 56 years, then there is another opportunity for Termination during a period of 5 years, beginning at the expiration of the Bonus Term (i.e., 75 years past the original registration date), which will return the rights to the author for the remainder of the Extended Term (i.e., a maximum of 20 years).

For transfer documents executed on or after 1/1/78, an author can Terminate during only the 5 year period, beginning at the 35th anniversary of the date of execution of the original transfer document.** For transfer documents executed after 1/1/78, it does not matter when the work was registered for copyright protection. Since the earliest possible date an agreement following these rules could be signed is 1/1/78, we cannot Terminate any agreement regarding transfer documents executed after 1/1/78 until 1/1/2013.

But I thought that you said that we had to start worrying about transfer documents executed on or after 1/1/78 in 1/1/2003, not 1/1/2013. What gives?

This brings us to an explanation of the first step of effecting a Termination: Serving notice. Notice has to be given to the previous publisher at least 2 but no more than 10 years prior to the effective date of Termination. Therefore, because the earliest possible date of Termination of a transfer executed after 1/1/78 is 1/1/2013, the earliest possible date that notice can be served to the previous publisher to effect that Termination is 1/1/2003 (i.e., 10 years prior to the effective date of Termination).

Can we please get to what happens for transfers executed on 12/31/77 or earlier? You know, what concerns us now?

The same notice provisions apply to Terminations of transfer documents executed on or before 12/31/77. Notice must still be given to the previous publisher at least 2 but no more than 10 years prior to the effective date of Termination. However, the effective date of Termination for transfer documents executed on or before 12/31/77 is determined based on the original copyright registration date, not the date of execution of the agreement to be terminated. Therefore, once you’ve determined that the transfer document was executed on or before 12/31/77, it’s pretty easy to determine the effective Termination date.

This is worse than those word problems in math class. Enough of this abstract language, can I get a concrete example?

Sure, let’s go:

Let’s say that a work was originally copyrighted on June 4, 1935 and the rights were transferred under a publishing agreement executed on September 1, 1935. It’s a transfer document executed on or before 12/31/77. Therefore, you have to use the Old Act time periods to determine when you may Terminate. Consequently, a Termination can only be effected either (i) during the 5 year period beginning at the expiration of 56 years past the original registration date (i.e., from June 4, 1991 to June 4, 1996) or if that wasn’t done, (ii) during the 5 year period beginning at the expiration of 75 years past the original registration date (i.e., from June 4, 2010 to June 4, 2015).

In order to properly serve notice for the first Termination window above, the author must give the previous publisher notice between the dates of June 4, 1981 and June 4, 1994. In order to properly serve notice for the second Termination window above, the author must give the previous publisher notice between the dates of June 4, 2000 and June 4, 2013. In either event, the author must file a copy of the notice with the Copyright Office prior to the effective date of Termination.

Assuming the author does all of the above correctly, then he or she gets his or her rights back. If done during the first Termination window, then the author gets the rights back for up to a maximum of 39 years (i.e., the remainder of copyright protection after the effective date of Termination). If done during the second Termination window, then the author gets the rights back for up to a maximum of 20 years (i.e., the remainder of copyright protection after the effective date of Termination).

So, in this case we missed the first Termination window?

Yep, and those rights would stay with the previous publisher as we bide our time for the second Termination window to occur.

It looks like we only get a 13 year period instead of a 15 year period to effect a Termination. What’s up with that?

Yes, it’s true. Because of the notice requirements (i.e., at least 2 years prior to the effective date of Termination), the author effectively only has 13 years to serve notice to the previous publisher and effect the Termination. This is really terrible when you do the analysis of a copyright only to discover that you’re technically able to terminate because you’re within one of the 5 year Termination windows, but can’t actually Terminate because you can’t give at least 2 years notice before the Termination window expires. D’OH!!!

When the author effectively terminates the previous publisher, what rights does he or she get back?

The author gets back all of the rights transferred under the agreement, but there are 2 major points to remember:

(1) U.S. ONLY--Although it’s based on the same general concepts, copyright law is different in every country. Because of this, companies have taken the position that Terminations under U.S. copyright law do not have any extra-territorial effect. Whether or not one personally believes that it should be so, this is a business reality. Therefore, whenever an author effects a Termination, he or she only gets his or her rights back for the territory of the United States, even if the transfer document they terminated is for the world. Although slightly absurd, it’s the way the law is currently interpreted by business and not likely to change without litigation.

Also worth noting here is the fact that, in certain scenarios, the laws of the territories comprising the British Commonwealth (i.e., there are many, the largest of which are Canada, Australia and the U.K.) provide for an automatic reversion of the rights to the heirs of a deceased author 25 years after the death of the author. Reclamation of the rights under the laws of the British Reversionary Territories (“BRT”), is different from a Termination under U.S. law, but, like a Termination, the laws are of no extra-territorial effect outside of the BRT.

(2) FUTURE LICENSES ONLY--Warner/Chappell Music (i.e., one of the major music publishers) was involved in a lawsuit brought by one of their authors who properly effected a Termination of their rights. Once the Termination was accomplished, the author went to all of the existing licensees of the composition and demanded that they had to enter into new licensing agreements with him (on stricter terms, of course) because all of the previous licenses issued by W/C were null and void. To make a long story short, the ruling came down that licenses issued by W/C to third parties prior to the effective date of Termination were valid and would continue to remain in place. Therefore, whenever a Termination is effected by an author, all existing licensees of the previous publisher continue to have valid licenses and pay all monies due under those licenses directly to the previous publisher; the author only gets back the right to enter into and collect for future licenses.

What if the author dies before he or she can effect a Termination?

First of all, if the author dies during the Initial Term of an Old Act copyright, then there is a separate reversion of the rights which occurs completely independently of any Termination rights. It is conversationally called an “Abend Reversion”, “Rear Window Reversion”, “Renewal Reversion” or “Death Reversion”. Keep this in mind--ABEND REVERSIONS ARE DIFFERENT!!! They follow different rules which are not applicable to this Q&A.

Now, that point having been made perfectly clear, if the author dies, then the Termination rights which are the topic of this Q&A pass on to the author’s widow (or widower) and children.

Are there any special rules regarding surviving spouses and children?

Yes. The biggest to remember are:

(1) Transfer documents executed on or after 1/1/78 are subject to Termination only if executed by the author. Therefore, if the widow or widower and surviving children of an author get the rights back for an Old Act copyright due to a previous Termination or an Abend Reversion and then execute a subsequent transfer document for those recaptured rights after 1/1/78, they cannot later get their rights back by Termination. However, REMEMBER that Termination rights are inalienable. Therefore, neither (i) an author nor (ii) an author’s widow or widower and any surviving children can give away their future Termination rights if they are entitled to them but haven’t yet effected them.

(2) Agreements transferring rights for the Renewal Term of any Old Act copyrights which were executed on or before 12/31/77 are subject to Termination if they were executed by either the author or any of the author’s statutory successors (i.e., spouse and children). It is important to remember that, although Termination rights are inalienable, possible future rights during the Renewal Term of an Old Act Copyright are transferable. Therefore, if the spouse and children signed away their rights (or possible future rights) for the Renewal Term of an Old Act copyright on or before 12/31/77, they can later Terminate the transfer document. However, if the spouse and children signed away their possible future rights for the Renewal Term of an Old Act copyright on or after 1/1/78 and the author dies before the Renewal Term, the widow or widower and surviving children cannot effect a Termination at all.

So, if the spouse and children sign away their future rights for the Renewal Term after 1/1/78 and the author dies before the Renewal Term, they’re left with squat? The previous publisher gets the rights for as long as the copyright exists?

Yep. As a matter of fact, this has lead to some downright awful behavior by publishers, who have been known to swoop in after an author has died and get the widow or widower and children to sign a piece of paper under the guise of needing to “update their address for future payments owed to (insert dead author’s name)” or some other such bunk. Of course, what the widow and children don’t realize is that the piece of paper actually conveys to the publisher all rights for the Renewal Term of all Old Act copyrights which haven’t yet entered the Renewal Term, thereby effectively giving the previous publisher the rights to the compositions for the entire life of the copyright.

For crying out loud...Anything else I should know?

Yeah. There are a few other points:

(1) There are 2 other pertinent scenarios in which Termination rights cannot be claimed:

(i) If the transfer document sought to be terminated is the last will and testament of the author; and

(ii) if the copyright is a work-for-hire.

(2) There are special circumstances for Termination of works by joint authors or if there are more than one heir, both of which are a mess. If your circumstances fall within either of these scenarios, then you should consult an attorney or someone else extremely knowledgeable about Terminations.

I’m the heir of a deceased popular author and think that I may be able to get some huge copyrights back with a Termination. How can I check it out to see if the transfer agreements are subject to Termination?

(1) Determine if any of the copyrights are works-for-hire (Watch out—This is not as clearcut as it sounds; a work may be registered as a work-for-hire and a previous publisher may consider it as such, but it still may not actually be a work-for-hire). If so, no Termination rights are possible.

(2) Determine if the transfer document sought to be terminated is a will. If so, no Termination rights are possible.

(3) Determine if the transfer document you wish to Terminate was executed by (i) the author or (ii) the spouse or children of an author.

(4) Determine whether the transfer document was executed before or after 1/1/78.

(5) If the transfer document was executed by the author at any time, then the rights are subject to Termination, go to step #14.

(6) If the transfer document was executed by anyone other than the author, the rights may or may not be subject to Termination, proceed.

(7) Determine if the transfer document was executed by the spouse and children of the author on or before 12/31/77. If so, then the rights are subject to Termination, go to step #14. (8) If the transfer document (i) granted any rights during the Renewal Term and (ii) was executed by the spouse and children of the author on or after 1/1/78, determine when the author died.

(9) If (i) the author died before the copyright’s entry into the Renewal Term of protection, (ii) the transfer document granted rights during the Renewal Term and (iii) was executed by the spouse and children of the author on or after 1/1/78, then the rights are not subject to Termination.

(10) If (i) the author died after the copyright’s entry into the Renewal Term of protection, (ii) the transfer document granted rights during the Renewal Term and (iii) was executed by the spouse and children of the author on or after 1/1/78, determine if the transfer document was executed before or after the entry of the copyright into the Renewal Term of protection.

(11) If (i) the author died after the copyright’s entry into the Renewal Term of protection and (ii) the transfer document granted rights during the Renewal Term and (iii) was executed by the spouse and children of the author on or after 1/1/78 but (iv) before the copyright’s entry into the Renewal Term of protection, then the rights are subject to Termination, go to step #14.

(12) If (i) the author died after the copyright’s entry into the Renewal Term of protection and (ii) the transfer document granted rights during the Renewal Term and (iii) was executed by the spouse and children of the author on or after 1/1/78 as well as (iv) after the copyright’s entry into the Renewal Term of protection, then no Termination rights are possible.

(13) If (i) the author died before the copyright’s entry into the Renewal Term of protection, (ii) the transfer document granted rights during the Renewal Term and (iii) was executed by the spouse and children of the author on or after 1/1/78, then no Termination rights are possible.

(14) Determine whether or not a Termination has already been effected for the Transfer document. If so, no Termination rights are possible for this particular document. If not, proceed.

(15) If the transfer document was executed on or after 1/1/78, add 35 years to the execution date**. This will give you the Termination date, go to step #19.

(16) If the transfer document was executed on or before 12/31/77, determine the original copyright registration date.

(17) Once you have determined the original copyright registration date, add 56 years to the date. This will give you the first possible Termination date.

(a) If the resulting Termination date occurred more than 3 years prior to the current date, then a Termination is not possible during the First Termination window, go to step #18.

(b) If the resulting Termination date either (i) occurred 3 years or less prior to the current date or (ii) will occur within 10 years of the current date, then a Termination is possible during the First Termination window, go to step #19.

(c) If the resulting Termination date will occur more than 10 years past the current date, then a Termination is possible during the First Termination window, but you cannot serve notice yet. Wait for the notice window to open and then proceed to step #19.

(18) Add 75 years to the original copyright registration date. This will give you the second possible Termination date.

(a) If the resulting Termination date occurred more than 3 years prior to the current date, then a Termination is not possible for this document.

(b) If the resulting Termination date either (i) occurred 3 years or less prior to the current date or (ii) will occur within 10 years of the current date, then a Termination is possible during the Second Termination window, go to step #19.

(c) If the resulting Termination date will occur more than 10 years past the current date but the First Termination Window has been missed, then a Termination is possible during the Second Termination window, but you cannot serve notice yet. Wait for the notice window to open and then proceed to step #19.

(19) Prepare a notice of termination (Check with the Copyright Office #202-707-3000 for the information that is required to be on the notice) and do both of the following: (i) send a copy of the notice to the previous publisher at least 2 but not more than 10 years prior to the Termination Date; and (ii) register a copy of the notice with the Copyright Office before the Termination Date.

(20) As of the Termination Date, begin claiming the rights set forth in the terminated transfer document for all future licenses throughout the territory of the United States.

So what are the copyright registration dates that I should be looking for right now for future Terminations?

Right now, as of the current date (August 1, 2002), the range of original copyright registration dates that you should be looking for regarding possible Terminations are as set forth below. They will constantly change as each day passes:

August 1, 1924 – August 1, 1927 or August 1, 1943 – August 1, 1946: You can serve notice for these immediately and claim in 2 years.

August 1, 1927 – August 1, 1937 or August 1, 1946 – August 1, 1956: You can serve notice for these immediately, but won’t be able to claim them until the actual Termination Date, which could be up to 10 years from the current date.

Remember, you can only Terminate copyrights with original registrations falling within these dates if:

(1) The original transfer document is signed by the author; or

(2) The original transfer document was signed on or before 12/31/77 by the spouse and children of the author; or

(3) The original transfer document (i) granted renewal rights, (ii) was signed on or after 1/1/78 by the spouse and children of the author, but (iii) the author lived past the copyright’s entry into the Renewal Term;

AND

(4) There has not been a prior Termination for the copyright.

Wha!?!?!

Yeah, I know, it’s a difficult concept to grasp and highly technical in application, but once you’ve got it, it’s there to stay. Take a break and then come back and take it from the top.

**The reason why these little asterix are here is because the law is not clear if the Termination date for documents executed on or after 1/1/78 which transfer music publishing rights is (a) 35 years past the date of execution of the transfer agreement or (b) the earlier to occur of (i) 35 years past the publication date of the copyright or (ii) 40 years past the date of execution of the transfer document. Scenario (a) is the way to determine the Termination date for all transfer documents other than those conveying publishing rights. Scenario (b) was added to the copyright act at the request of book publishers and appears to apply to book publishing rights only (which is why I built scenario (a) into this Q&A). However, scenario (b) might equally apply to musical composition publishing rights due to some wonderfully ambiguous statutory language. No one will know for certain until 1/1/2013 at the earliest.**