Sunday, April 25, 2021

Copyright Termination Basics


        The news recently broke that the original screenwriters of the Predator movie are seeking to reclaim ownership of their screenplay from Disney, who acquired the franchise when they bought 20th Century Fox. Since the concept of copyright terminations will continue to be an issue for years to come, I am going to do a quick summary.[1]


What is a copyright termination?

 The 1976 Copyright Act included provisions that allowed authors of works to terminate a previous transfer of the work. For transfers executed by the author after January 1, 1978, Section 203* of the Act states that authors can terminate the grant during a 5-year window 35 years after the original grant.

*There are two other provisions addressing terminations for works that are specific to works created or assigned before 1978. I will not be addressing those provisions here.


Why were authors granted the right to terminate copyright transfers?

 The termination provision was added as a replacement for the renewal term under the previous copyright law.[2] The provision was included as a safeguard for authors to protect against being exploited with unfavorable deals. Congress noted that the full value of a work can’t be known until it has been exploited.[3] By giving authors the ability to terminate the transfer, they have the ability to participate in the value of the work.


How can an author terminate a transfer?

The author, or his heirs or estate, may terminate a transfer by sending a written notice of the termination. It must be signed by the author, it must state the date of the termination (which must fall in the 5 year window mentioned above), and it must be served between two and ten years before the termination date. A copy of the notice must also be filed with the Copyright Office.


Can the termination provision be waived via contract?

No, the termination provision cannot be contracted around. The author cannot give up or waive the termination right before it vests.


Are there restrictions on what types of work can be terminated?

Yes, the termination provision does not apply to works-made-for-hire.


What happens after termination?

The author reclaims all rights that were transferred and can exploit the work in the future. Derivative works prepared during the term of the grant may continue to be exploited by the grantee pursuant to the original terms, but no new works may be produced.

[1] All provisions discussed can be found in 17 U.S.C. §203

[2] H.Rep. Report No. 94-1476, 124.

[3] Id.