Milestone Passed In US Copyright Practice

In 1976, US copyright legislation was amended to include termination rights that allow authors of copyrightable works such as music, books, paintings and photographs to terminate prior assignments of copyright interest entered into by the author. Where the author has died, certain family members or the author’s estate can also bring a termination claim.

At the heart of the US amendments was a desire to acknowledge and address the unequal bargaining power that can exist early in an artist’s career. By providing artists, their estates or their families with termination rights, the legislation grants powerful leverage that can be used in the renegotiation of early deals made between authors and publishers that may now be heavily in the publisher’s favour. However, the need to take precise steps in order to exercise a termination right requires foresight and careful planning.

For assignments entered into by authors on or after January 1, 1978, the right to terminate is provided in 17 USC §203 and begins 35 years after the assignment (Section 203 Termination). As a result, the first group of 1978 assignments became ripe for Section 203 Termination beginning January 1, 2013.

In order to complete a Section 203 Termination, an author (or, if the author has died, certain family members or the author’s estate) can terminate copyright assignments made by the author by meeting strict criteria:

  • the author was the first owner of copyright (where ownership of the copyright automatically vests in another – such as in a work-for-hire, for example – the author would have no interest to assign);
  • the assignment was made on or after January 1, 1978;
  • the assignment was other than by will;
  • 35 years have passed since the assignment;
  • termination notices were filed at least two years, but not more than 10 years, prior to filing a claim for termination; and
  • a claim for termination was filed in the first five years following the 35-year term.

In Canada, s 14(1) of the Copyright Act creates a reversionary right which differs somewhat from the US termination right. Unlike the US termination right, the Canadian reversionary right is created upon the author’s death and initially vests in his or her estate and is unavailable to the author himself of herself. The Canadian reversionary right can terminate an assignment only where the following are true:

  • the author was the first owner of copyright;
  • the assignment was made on or after June 4, 1921;
  • the assignment was other than by will;
  • the author has died; and
  • 25 years have passed since the author’s death.

For reports on termination rights litigation, follow these links: Bruce Springsteen, Bob Dylan and Others May Regain Control of Copyrights; Village People Singer Wins a Legal Battle in Fight to Reclaim Song Rights; Ray Charles’ Foundation Sues His Own Children In Copyright Fight; and Heirs of Joe Shuster Denied Termination Rights for Superman Assignment

Summary by: John Lucas

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