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Navigating the Shoals of Copyright Termination

January 19, 2012

Peter J. Karol | Of Counsel View more articles

Peter is a member of our Trademark Practice Group and Litigation Practice Group

We have prepared a Copyright Terminations Flow Chart to help authors (or their surviving family members) determine if a termination is possible in their case.

The Copyright Act has a fairly unique provision that gives authors of a copyrighted work the ability to terminate certain transfers of their copyright long after the fact. For most works of authorship, other than works made for hire, the original author can essentially reclaim, at no cost, his or her copyright years after it was sold. Imagine if, for free, you could suddenly take back ownership of a house that you sold decades ago.

Although termination provisions have been in effect for decades for older works, an entire new class of terminations will become possible for the first time starting on January 1, 2013. Specifically, on that date, terminations will be possible for assignments, licenses or other transfers of copyright signed after January 1, 1978 (the date the current Copyright Act took effect).

If you, or an author/artist whom you survive, assigned a valuable copyright after 1978, you may soon be able to take back that transfer. The five-year window for a large number of these terminations opens 35 years after the work was originally transferred. However, as the chart shows, there are many variations and exceptions that can determine the precise window for any given work.

Time can be of the essence for any termination. Copyright law generally provides a five-year window for terminations, and requires complicated and extended notice procedures in order to effectuate the transfer. For instance, a duly signed notice of termination must be given to the current copyright owner between 10 and 2 years prior to the time of actual termination, and various documents must be recorded with the Copyright Office.

Authors or artists who intend to terminate on January 1, 2013 will have sent out notices of termination over a year ago in order to meet the two-year advance notice requirement. The attorneys in our Copyright Practice Group can explain whether and how you might be able to commence a termination.