Questions About the Law

What are the “termination of transfers” provisions?

The termination of transfers provisions are sections of the U.S. Copyright Act that give an author (and in some instances their family members or representatives), a statutory process by which they can get back their rights to a copyright protected work that has been sold or licensed away to another entity.

Copyright law protects creative expressions—such as books, films, music, arts, computer software, websites, and computer games. Copyright grants the creator of these works exclusive rights to control (subject to important exceptions like the U.S. doctrine of fair use) certain activities in relation to their work, such as copying, adapting, distributing, performing it. Control of these exclusive rights can be valuable—an author of a book can grant a publisher the exclusive right to publish the book in exchange for an advance and royalties on the sale of copies; the same author can also grant a filmmaker the right to adapt the book into a film based on the book (again for a fee), and license someone else to adapt the book by translating it into other languages (also for license fees, and possibly royalties).

An issue arises, however, if an author sells or licenses their copyright before they or their work are well-known. Authors at the start of their careers may not be as sophisticated in their negotiating skills, which means that they might sell or license their copyright for much less than it is ultimately worth. The commercial windfall of a successful work is then enjoyed by the entity that exploits those rights, not the original author.

This is where the termination of transfers provisions come in. The U.S. Congress decided that it was important to provide a mechanism under which rights that have been previously sold or licensed could be returned to the original author or their family members. So the termination of transfers provisions were enacted to, in the words of the U.S. Congress, safeguard “authors against unremunerative transfers,” which is necessary because “of the unequal bargaining position of authors, resulting from the impossibility of determining a work’s prior value until it has been exploited.”

It is important to distinguish between these termination of transfers provisions and the regular termination provisions that exist in many contracts. The termination of transfers provisions are a statutory mechanism that applies to transfers of right that are permanent (such as a sale of copyright ownership) or transfers that are long-term (such as a lengthy exclusive license). If an author has entered into an agreement that is for a short period or includes contractual termination provisions that easily allow the author to get back rights that were licensed to someone else, then in many cases it will be preferable for the author to exercise his or her contractual rights, rather than go through the statutory termination of transfers process.

 

How do the termination of transfer provisions operate?

The general process for terminating agreements involves the following steps:

1. Confirm that the agreement falls into one of the categories of agreements that can be terminated (for more details, see What kinds of agreements can be terminated? and What kinds of agreements cannot be terminated? below);
2. Confirm who is authorized to terminate the agreement (e.g., an author, joint authors, an author’s successors, an author’s authorized representatives—see I am not the original author or artist; can I still take advantage of the termination of transfer provisions? below for more details);
3. Calculate when the “termination window” (see the glossary) arises (this is a five-year period during which the agreement can be terminated);
4. Calculate the “notice window” (see the glossary) (this is the period during which a termination notice can be served) which is a period no more than ten years before the “termination window” arises and not less than two years before the “termination window” closes;
5. Serve a valid and proper termination notice by the person(s) authorized to terminate the agreement during the “notice window,” identifying a date within the “termination window” as the date on which the agreement will terminate, among other things (see Authors Alliance’s guidance and templates for more information on how to provide notice of termination to rightsholders);
6. Submit a copy of the termination notice, fee, and Form TCS to the U.S. Copyright Office (see Authors Alliance’s guidance and templates for more information on how to record the termination with the U.S. Copyright Office);
7. Wait for the “termination date” to arrive when the rights revert back to the author.

If this sounds complex and like a lot of work—it is. And this process is further complicated by the fact that important details for following this process differ depending on whether the agreement is dated before January 1, 1978 or after January 1, 1978 (for an explanation of why these dates matter, see Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below).

This tool was created by Authors Alliance and Creative Commons to simplify this procedure (as we explain in describing how the tool works at What does this tool do for authors that they can’t do by themselves? below) and make it more author-friendly and accessible. To date, there have not been many attempts by authors to terminate agreements, even though their copyright grants may qualify for termination. Authors Alliance and Creative Commons are providing this tool to make it easier for authors and their successors to know if they may be eligible to terminate agreements in the hope that more will exercise their termination rights.

 

How does getting back the copyright help authors?

Getting the copyright grants back under the termination of transfer provisions can assist authors in two ways.

First, after an author serves a valid termination notice on the person to whom the author sold or licensed his or her rights (“grantee”), the grantee may enter into a new and better arrangement with the author to maintain the use of those rights after the termination takes effect. The author can try to do a better deal. The ability to terminate the agreement should give the author some additional bargaining leverage in negotiations. Also, because the market will have developed and the author will be able to see how successful his or her work has been, he or she can use this important information in the subsequent negotiations.

Secondly, the author regains control of his or her rights. The author can then do as he or she wishes with them, including entering into new agreements and relationships in relation to his or her work with a (hopefully) stronger bargaining position. The author may also consider making terminated works that have outlived their commercial life but are nonetheless historically and culturally valuable available to the public on open terms.

 

What kinds of agreements can be terminated?

For an agreement to be capable of termination, it needs to be a certain type of agreement. In addition, for agreements dated after January 1, 1978, the agreement must last for more than 35 years (for more information about why this date is important, see Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below). However, there are several exceptions of agreements or transfers involving copyright that cannot be terminated. These are discussed more in the next question, (What kinds of agreements can be terminated?).

The types of agreements that can be terminated include:

• A transfer of ownership of copyright of either the whole copyright or of specific rights in copyright. This is often referred to as an “assignment;”
• An exclusive license of one, more or all of the copyright rights, such as an exclusive license to publish a book;
• A non-exclusive license of one, more or all of the copyright rights, such as a non-exclusive license to play a song on the radio;
• A mortgage or other security on copyright;
• And, in the words of the U.S. Copyright Act, “any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in copyright.”

All of these agreements—with the exception of non-exclusive licenses—must be in writing, so if an author has a copy of an agreement, then he or she should be able to identify what type of transfer it is by reviewing the agreement. To learn more about where to find out details about the type of agreement, check out our List of Useful Documents.

One additional requirement applies to agreements entered into after January 1, 1978 to be terminable: The agreements must continue for more than 35 years. If a post-1978 agreement runs for a period of less than 35 years, then it cannot be terminated because the earliest termination window that arises for a post-1978 agreement is 35 years after the date of the agreement (or from the date of publication of the work if the agreement includes the right of publication). Consequently, authors should ensure that they obtain proper legal advice if publishers or other organizations wishing to exploit their rights try to enter into multiple, rolling agreements for less than 35 years; or if a publisher seeks to get them to agree to voluntarily terminate an agreement that lasts for 35 years or more, and enter into a new one that lasts for the same or a shorter period of time. To learn more about why there is a difference between pre- and post-1978 agreements, see Why does the tool make a distinction between things that happened before January 1, 1978 and after January 1, 1978? below.

Finally, to qualify for termination, an agreement must not fall into one of the excluded categories. These are discussed in the next question, What kinds of agreements cannot be terminated?

 

What kinds of agreements cannot be terminated?

There are four kinds of agreement that cannot be terminated under the termination of transfer provisions:

1. a transfer of rights that occurs by reason of the work being a “work made for hire;”
2. a transfer of rights in a will;
3. post-1978 agreements signed by someone other than the author; and
4. certain grants of “common law copyright.”

(1) Works made for hire

Under the U.S. Copyright Act, copyrighted works that qualify as “works made for hire” are subject to special rules that govern who becomes the first owner of copyright in a work. For regular works, the person who creates the work becomes the first owner of copyright. However, for “works made for hire” either the employer or person who commissioned the work becomes the first owner of copyright. Neither of these transfers of rights from the author to the employer or commissioning party, which occur by operation of the Copyright Act, nor any subsequent agreements entered into by the employer or commissioning party in relation to the work, may be challenged by the author or their family members.

A copyrighted work qualifies as a “work made for hire” in two circumstances. The first is when the work is created in the course of the author’s employment. To learn more about when a work is created in the circumstances of employment, see our explanation of this concept in the glossary.

The second is when a work is specially commissioned or ordered (see an explanation of that concept in our glossary). In certain circumstances, copyright ownership in a specially commissioned work may transfer to the person who specially commissions the work, not the author.

The rules governing the specially commissioned category of “works made for hire” changed in 1978.

To learn more about the reason for the distinction between pre- and post-1978 works, see Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below.

Prior to 1978, the courts looked to what the parties intended to see if copyright ownership should pass from the creator to the commissioning party. For the most part, courts assumed that the parties did intend copyright ownership to be transferred; consequently, in the absence of persuasive evidence to the contrary, it is highly likely that copyright in a commissioned work will be owned by the party who commissions the work. There does not have to be any written agreement for copyright to transfer for pre-1978 commissioned works, although obviously if there is an agreement, it can provide evidence of the parties’ intent.

For post-1978 agreements, there are three requirements for a work to qualify as a “work made for hire.” The work must be specially commissioned and come within one of specifically provided categories, and there must be a written agreement signed by both parties agreeing that the work will be a “work made for hire.”

The nine categories of work that can qualify are:

1. A contribution to a collective work;
2. A part of a motion picture or other audiovisual work;
3. A translation;
4. A supplementary work;
5. A compilation;
6. An instructional text;
7. A test;
8. Answer material for a test; and
9. An atlas.

The terms “compilation,” “collective work,” “instructional text or graphics,” “motion picture or other audiovisual work,” and “supplementary work” are explained a little more in the glossary.

(2) Transfers by will

As a property interest, the rights that a person enjoys in a copyrighted work can pass, when an individual author or copyright owner dies, by will or by the laws of the applicable state regarding intestate succession.

If the transfer of rights that is contested is a transfer that occurred in a will, the termination of transfer provisions cannot be utilized to have the rights revert. So, for example, if when an author dies they leave the rights to their copyright to a friend, a surviving wife or child of the author will not be able to cancel the gift of copyright to the friend because it occurred in the author’s will.

(3) Post-1978 agreements signed by someone other than the author

Agreements executed after January 1, 1978 can only be terminated if they were signed by the author. This is different from agreements executed before January 1, 1978, which can be terminated if they were signed by the author or the author’s successor renewal claimants (usually family members). The reason for the broader category of agreements that are terminable prior to 1978 is because U.S. copyright law that governed prior to 1978 recognized the ability of an author’s relative to sign away a future interest they may obtain in the author’s copyright.

For more information about the reason behind the distinction made between agreements entered into before 1978 and after 1978, see Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below.

(4) Certain Grants of Common Law Copyright

This is a very technical exception to the termination of transfer provisions that is unlikely to apply to the majority of agreements. Under U.S. copyright law prior to 1978, copyright was secured by registering for an initial term of copyright protection and then renewing the copyright registration prior to the expiry of the initial term for a second term.

The termination of transfer provisions only grant the right to terminate agreements entered into prior to 1978 if those agreements related to a renewal copyright interest (i.e., a grant in relation to a work in its second copyright term). Because of this limited application of the pre-1978 termination provisions, agreements that do not relate to the renewal copyright interest may not be capable of being terminated. The copyright interest to which such agreements will relate is known as a common law copyright (i.e., the copyright arises by virtue of common law as distinct to statute). An example of a pre-1978 agreement that would not be able to be terminated is an agreement that relates to the original copyright term, or a pre-1978 agreement that relates to an unpublished work. (Prior to 1978, a work was protected by U.S. state law (as distinct from U.S. federal law) from creation until publication; upon publication it either had to be registered to secure copyright protection, or else it fell into the public domain). To learn more about why a distinction is made between pre- and post-1978 works, see Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below.

 

The author created work with another person or a group of people. Do the termination provisions still work for that one author?

Yes, if the author created a work he or she can still take advantage of the termination of transfer provisions. However, the rules about how that happens vary depending on whether the agreement the author is seeking to terminate was entered into before January 1, 1978 or after January 1, 1978. To learn more about why a distinction is made between pre- and post-1978 works, check out Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below.

For pre-1978 agreements, any joint author who executed an agreement can terminate that agreement. However, the termination is effective only to the extent of that joint author’s interest. In other words, if three authors—Alejandra, Benito and Carlos—create a work and then grant an exclusive license to Company Domingo, Alejandra can, if she wishes, terminate the exclusive license. Company Domingo will still enjoy the rights it obtained from Benito and Carlos but now exercises them together with Alejandra (transforming the exclusive license a non-exclusive license in the process).

By contrast, post-1978 agreements operate on a majority rule. This means that if the author seeking termination is a joint author of a work, that author needs to have a majority of joint authors who executed the post-1978 agreement join him or her in terminating it. Note that the majority is counted in relation to the authors who executed the grant (not the majority of the total authors of the work). This means that if there were seven joint authors of the work but only five of them got together to sign the agreement, the majority requirement would be satisfied when three of those five exercised their termination right. Also note that the effect of such a termination would be that the entire agreement would be over. It would not cease only with respect to the three who exercised their termination rights and continue in relation of the two of them who did not (which is the opposite of what happens in relation to pre-1978 agreements for jointly authored works).

Of course, if one of the authors with whom the author created the work is no longer living, their “termination interest” (i.e., the right that author holds to be able to terminate an agreement) may be exercised by those of their surviving family members who are recognized by the termination provisions. Read more about which surviving family members are recognized in the next question (The person seeking termination is not the original author. Can he or she still take advantage of the termination of transfer provisions?).

To understand more about why there are differences in the treatment of pre- and post-1978 agreements, read Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below.

 

The person seeking termination is not the original author. Can he or she still take advantage of the termination of transfer provisions?

The answer to this question depends on two things: firstly, whether the author who created the work is still living; and secondly, on who signed the original agreement that is subject to termination.

If the author is no longer living and they are the person who signed the agreement that someone is seeking to terminate, then the answer is yes (subject to certain conditions). To briefly explain: If the original author is no longer living but transferred or licensed away their rights during their lifetime, the law recognizes the right of certain family members to terminate agreements entered into by the author. Those family members who may be eligible to exercise such a “termination right” are:

1. An author’s surviving spouse: S/he owns the entire termination interest if there are no surviving children or grandchildren. If there are surviving children or grandchildren, then the surviving spouse owns one-half of the termination interest with children or, if one of the children is no longer living, any grandchildren sharing the deceased children’s interest.
2. An author’s surviving children: Own the entire termination interest equally divided among them if there is no surviving spouse. If there is a surviving spouse, they enjoy a one-half termination interest equally divided among them.
3. An author’s surviving grandchildren: If one of the author’s children is not still living at the time the author dies, then any surviving children of that child enjoy that child’s termination interest in equal shares.

The entitlement to exercise a termination right is governed by two majority rules.

The first majority rule requires that those surviving family members who are entitled to terminate an agreement, must do so by majority action. The majority is calculated on a “per stirpes” basis according to the rules set out by the termination of transfer provisions.

The second majority rule applies to the exercise of the interest of any grandchildren (if relevant). The termination of transfer provisions state that the termination interest of the grandchildren may only be exercised by a majority of them.

To give some examples of the two majority rules in operation: if the author is no longer living but is survived by their spouse and two children, then a majority of the surviving spouse (given s/he owns one-half of the interest) and one surviving child is needed to terminate. However, if there the author’s spouse does not outlive the author, then the termination interest must be exercised by a majority of the surviving children; but if one of two children has predeceased the author and the child who predeceased the author has three children (which are the author’s surviving grandchildren), then the agreement of at least two of the three grandchildren is needed in order to be able to terminate the agreement.

If there is no surviving spouse nor any surviving children or grandchildren, then the author’s executor, administrator, personal representative, or trustee (see the glossary for an explanation of these terms) may exercise the termination right.

If an agreement was signed by someone other than the author and the agreement is dated after 1978, then the answer is no. For post-1978 agreements only those executed by the author can be terminated.

If the agreement to be terminated was signed by someone other than the author and the agreement is dated before 1978, then the answer depends on who executed the grant. For agreements entered into prior to 1978, agreements that were signed by the author’s surviving spouse, children, executors or next of kin (see the glossary) may be terminated but only by the surviving person who executed the agreement. So, for example, if, after the author died, the author’s spouse signed in 1970 a 50-year exclusive license, then the author’s spouse can terminate this transfer under the termination provisions but the author’s children cannot (because they did not sign the transfer). If the spouse and the author’s two children signed the pre-1978 agreement, then all three are required (or least, all of those who are still living when the right to terminate matures). The best way to think of this (if it’s not too much of a mouthful) is that non-author signed pre-1978 grants can only be terminated by the surviving majority of those who signed the agreement initially.

 

What is the effect of terminating an agreement?

If an agreement is successfully terminated, then all of the rights that were granted by that agreement revert back to the author or, if the author is no longer living, the rights revert back proportionally to those successors who were entitled to terminate. But the reversion of rights is subject to three important limitations that we explain in the next question, So, does the author get all of his or her rights back?

 

So, does the author get all of his or her rights back?

Not quite – in short, the author gets all of the rights back that were transferred under the terminated agreement as they apply in the United States, and subject to the “derivative works” exception. Let us explain each of these limitations a little more.

“You-only-get-back-what-you-gave-away” limitation – only those rights that were transferred or licensed away under the agreement will revert. This means that if the author entered into one license for the publication of a book and a separate license for the production of a movie, when the author terminates the book publication agreement, the author will get only these publication rights back. To get the movie rights back, the author needs to see about terminating the movie agreement. Also remember that the termination only takes effect with respect to the copyright interest in the agreement. Some agreements may include permissions with respect to other, non-copyrightable interests, such as ideas for storylines or titles of a work; these are not covered by a successful termination notice.

“U.S.-only limitation” – This means that the termination only has effect in relation to uses within the United States. The termination provisions specifically state that they do not affect rights arising under foreign (copyright) laws. Consequently, if the author signed an agreement that granted worldwide rights, he or she will get back only the ability to exercise those rights in the United States.

“Derivative works” exception – although a successful termination causes all of the rights to revert, this will not affect exploitation of derivative works created during the lifetime of the agreement, even after that agreement has been terminated. Once the agreement has been terminated, the grantee (see the glossary) may continue after termination to utilize “derivative works prepared under authority of the grant before its termination…[consistent with] the term of the grant” (to quote from the U.S. Copyright Act). This means that if, for example, an author granted a company a 50-year exclusive license to create a movie based on the author’s novel, that company can continue to use and exploit the movie even after the author successfully terminates the exclusive license. The company may not prepare a new movie based on the novel; it may only continue to use the existing movie that it created when the exclusive license was still current.

 

What happens if the agreement says that the author is not allowed to terminate his or her rights?

An author can still terminate his or her rights, even if the agreement that says that he or she is not allowed to terminate, or to take advantage of the termination of transfer provisions. The termination of transfer provisions specifically state that an agreement or transfer can be terminated regardless of any agreement to the contrary. In one instance, a court invalidated an agreement that sought to claim that a work was a “work made for hire” (which falls outside the termination provisions – see above, What kinds of agreements cannot be terminated?, for an explanation of “works made for hire”). So if the agreement the author is seeking to terminate includes anything that tries to get the author to agree not to exercise his or her rights under Section 203, 304(c) or 304(d) of the U.S. Copyright Act (or otherwise seeks to limit an author’s rights under the termination of transfer provisions), the author should not be disheartened. He or she should still investigate whether it is possible to terminate the agreement or transfer.

If an author signed up to an agreement after 1978 that continues for more than 35 years, and he or she then voluntarily voids or withdraws from the existing agreement before the 35-year period is up and enters into a new agreement, the termination calculation has to be made afresh. An author cannot carry a termination right from one agreement to a new agreement that he or she voluntarily enters into. Authors should obtain proper legal advice before signing any new agreements that cover rights that they have already licensed to ensure that they do not unwittingly jeopardize their termination rights.

 

Questions About The Tool

What does this tool do for authors that they can’t do by themselves?

This tool is designed to do two things to make it easier for an author to navigate the termination of transfer provisions – (1) to educate users on copyright laws about termination of transfer by roughly estimating, based on hypothetical scenarios, whether and when a work may be eligible for termination; and (2) assist with information gathering.

Notice and termination window calculation tool – As we explain above in How do the termination of transfer provisions operate?, two key parts of being able to successfully terminate an agreement are correctly identifying when the person seeking termination can serve the notice that he or she wishes to terminate (which is during the “notice window” (see the glossary). In that notice, the person seeking termination must then nominate a date that falls within the correct period during which the agreement can be terminated (known as the “termination window” (see the glossary).

The notice window is calculated relative to when the termination window is open. For pre-1978 agreements on works that secured copyright after 1939, the termination window is open for a 5-year period beginning 56 years from the date copyright is secured or beginning on January 1, 1978, whichever is later. For pre-1978 agreements on works that secured copyright from 1923-1939, the termination window is open for a 5-year period beginning 75 years from the date copyright is secured, or beginning on January 1, 1978, whichever is later. For post-1978 agreements, the 5-year termination window period begins 35 years from the date of agreement or, if the agreement includes the right of publication, 35 years from the date of publication or 40 years from the date of execution of the agreement, whichever occurs first. (To learn more about why a distinction is made between pre- and post-1978 agreements, see Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below.)

This sounds confusing to us, and we thought it might sound confusing to others, too. So we built this tool to help authors understand how to do the calculations. The tool asks questions about information necessary to calculate these windows and, if the information is accurate and the author seeking termination has a termination right, the information sheet provided once the tool is completed will set out the likely notice window and termination window.

Information gathering – the tool also helps people seeking termination to gather information that can be relevant and useful when trying to terminate an agreement. Details about who can terminate, their relationship to the author or artist, the title of the work, the copyright registration number, and the original and current grantee (see glossary) are useful pieces of information for a lawyer who assists with the exercise of a termination right. In some cases, this information can be helpful in calculating whether a termination right exists; in others, it is information that needs to be included in the termination notice.

This tool is in no way a substitute for authors doing their own investigation and research, or finding their own legal team to assist in identifying whether they have a termination right and then using it to get back their rights.

 

Can users just test out the tool?

Be our guest! Creative Commons and Authors Alliance do not keep any records of anyone’s use of the tool, so users can test out the tool as many times as they wish.

 

Can users restart the tool from a previous session?

The termination of transfer tool does not save any information nor record any of the information that users input, so users need to start each session from the start and work their way through each question until they get a result.

 

Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978?

The tool makes distinctions between agreements that were made before 1978 and after 1978 because the law does. Effective January 1, 1978, U.S. copyright law changed dramatically.

A key component of this change was that U.S. copyright law changed from being an “opt-in” system to being an “opt-out” system. Before 1978, to own a copyright in the U.S., a creator had to register their works in order to receive copyright protection, and that copyright protection was then limited to an initial term of 28 years. Prior to the expiry of the initial term, a copyright owner could then renew their copyright for a further 28-year term. But from 1978 on, U.S. copyright law changed so that a creator automatically secured copyright protection when they created an original work and recorded it in some tangible form. Registration was no longer necessary. Also, the term of copyright was extended to life of the author plus 50 years; there was no need to renew copyright.

However, in Congress’ view the renewal provision had served as a valuable tool in helping authors and artists renegotiate any agreements or transfers they had entered into during the initial copyright term, with the benefit of the knowledge as to how popular and valuable their works had been. The belief was that this knowledge assisted authors to negotiate more favorable terms during the renewal term. With the abolition of the renewal system, Congress sought to create a new mechanism to “safeguard authors and artists against unremunerative transfers” (in the words of Congress). The termination of transfer provisions are intended to be that mechanism—provisions which give authors a second chance at negotiating agreements or transfers they signed, possibly early in their career, before they knew their work’s true value (which can generally only be determined once the work has been exploited).

However, because U.S. copyright law was very different before 1978 and after 1978, the termination of transfer provisions function very differently depending on whether the agreement in question was entered into before 1978 or after 1978. Because the law makes this distinction, the tool has to make this seemingly arbitrary distinction as well.

 

A user completes the tool and it says that the hypothetical work’s copyright transfer may be able to be terminated. What should the user do with this information?

If the tool indicates that a work with the characteristics provided may have its copyright agreement terminated, it will then provide an information sheet (in PDF format). This information sheet lists the user-inputted information and whether a work with those characteristics would be terminable.

There are a couple of caveats on any results from the tool. The tool is only as good as the information put into it. So if the author was unsure of some of the information, or if the information isn’t quite accurate or is open to legal interpretation, a lawyer may give a different result than the tool.

Always remember that the tool is not definitive. If it states that the author may have a termination right that means it is a possibility, not a certainty. Remember too that identifying that an author may have a termination right is just the first step. There are many more steps to actually exercising and getting the rights back. Refer to the Authors Alliance’s guidance and templates for more information on how to (1) provide notice(s) of termination to rightsholders and (2) submit the required information to the U.S. Copyright Office to effectuate the termination.

As we make clear on the tool, neither the tool nor the information sheet are legal advice or a substitute for legal advice. Because the termination of transfer provisions are complex and require quite a lot of legal interpretation, authors should always consult with a lawyer.

 

A user completes the tool and it says that it is unlikely that an agreement can be terminated. What should the user do with this information?

If information the user plugs into the tool gives a result that suggests that a transfer of a work with those characteristics is unlikely, this is not necessarily a cause for despair.

Remember, the tool is merely educational can only provide answers to hypothetical scenarios based on the information provided. It is possible that the information provided is not accurate—for example, it may be that answers led the tool to conclude that a work with the characteristics provided was a “work made for hire” when it is not. For more information about “works made for hire” see What kinds of agreements cannot be terminated? above. So if the tool says that it is unlikely that a work with the characteristics provided is terminable, double check the information and investigate some of the details surrounding the information asked by the tool.

If, after checking the information, the tool still says it is unlikely that a work with the characteristics provided is terminable, recall that the tool is not exact, and copyright termination provisions are complex. The only definite way to know whether an author has a termination right or not is to consult with a lawyer. Authors should take the material gathered in preparation for completing the tool to a lawyer for review and advice. U.S.-based authors may be able to find a volunteer lawyer who can assist on this site: http://www.starvingartistslaw.com/help/volunteer lawyers.htm.

 

A user completes the tool and it says that the work may be terminable at some date in the future. What should the user do with this information?

If the tool says that a work with the characteristics provided is likely terminable at some date in the future, this means that—based on the information provided—it is possible that the author of such works has the right to terminate an agreement or transfer, but that right does not arise until some future date. Because the tool calculates dates by years (and not by months and days – see if the user doesn’t know the exact dates, what should he or she fill in for these questions? below) the author in such situations should start reinvestigating termination prospects well before the year identified by the tool commences.

Authors in this position have several options at this stage. The author can consult a lawyer to double check if he or she may have a termination right and, if so, when it arises; or he or she can wait until closer to the date given by the tool and reinvestigate termination prospects then.

One very important caveat is that any termination right the author enjoys may change as circumstances develop and change in the future. Examples of events that may change the outcome include if the author dies, if any of their immediate family dies, or if a new agreement or transfer is negotiated. So it is always important to stay up-to-date in all circumstances that may be relevant to the author’s termination prospects and to reevaluate these on an ongoing basis.

Remember that the tool is merely educational and is only as comprehensive as the hypothetical provided. So if the user was unsure of some of the information, or if the information isn’t quite accurate or open to legal interpretation, a lawyer may give a different result than the tool.

Remember also that the tool is not definitive. If it states that the author may have a termination right at some date in the future that means it is a possibility, not a certainty that such a right will arise.

Also, we make clear on the tool, neither the tool nor the information sheet are legal advice or a substitute for legal advice. Because the termination of transfer provisions are complex and require quite a lot of legal interpretation, an author should always consult with a lawyer before relying on anything the tool generates.

 

The agreement says the work is a “work made for hire,” but the work is not listed in the tool’s categories for “works made for hire.” What does this mean?

There may two explanations as to why the agreement says a work is a “work made for hire,” but the work does not seem to fall into one of the categories listed in the tool.

The first explanation may be that the author may have misinterpreted the legal classification of the nature of the work in question. For example, it may qualify under the law as a compilation or a contribution to a collective work or a supplementary work, even though this doesn’t seem intuitive or obvious to anyone who isn’t intimately familiar with the law in this area. In that case, the user may want to investigate this issue further, answer the tool as though the work is not a “work made for hire,” or consult a lawyer.

The second explanation may be that the grantee (see glossary) may have included a statement in the agreement asserting that the work was a “work made for hire” just in case they could take advantage of these provisions, even though they are not able to do so. One of the benefits of the “work made for hire” provisions is that they remove a work from the termination of transfer provisions, and so the grantee has the benefit of the rights for as long as they can negotiate under the agreement. This is one of the reasons many grantees try to characterize an agreement as a “work made for hire” when it may not be. To illustrate how contentious the issue of “works made for hire” can be, it is interesting to observe that sound recordings are notably absent from the categories of works that qualify as “works made for hire.” Record companies tried unsuccessfully to lobby the U.S. Congress on several occasions to have sound recordings included as a category in the “work made for hire” provisions. In anticipation of being successful in their lobbying efforts, many recording contracts refer to the works artists create as “works made for hire” even though they are not. Of course, some sound recordings may otherwise qualify as a “work made for hire” by being a contribution to a collective work, a compilation, or an employee created work; but if this is not the case, then the tool should be completed as though the sound recording is not a “work made for hire.”

 

If a user doesn’t know the exact dates, what should he or she fill in for these questions?

The tool only requires that the author input details of the year in which a relevant event occurred. It does not ask for the month or the day. The reason for this is that we have designed the tool to be as inclusive as possible, so that where there is a choice between whether to calculate that a person may have a termination right or may not have a termination right, the tool errs on the side of assuming that a termination right may exist. The actual periods for any “notice window” or “termination window” will ultimately have to be calculated down to the year, month and day, but for the purposes of the tool, we felt it was more user-friendly and gave sufficient guidance at this preliminary stage of the termination process to base it on the year.

If exact dates, including the month and year, are known, it will be handy for consulting with a lawyer.

If the exact year is uncertain, try running the tool using each different year to see if there is a different result occurs for any year. Authors who are unsure about exact dates should seek advice from a lawyer.

A user who does not even know an approximate time period for a relevant event will need to do some more digging for relevant information. The termination of transfer provisions are very date-specific so this is vital information for determining if a termination right exists.

 

Can those not based in the U.S. still use this tool?

Yes, even if a user is not based in the U.S., he or she can still use this tool to learn about U.S. laws about copyright termination of transfer—but remember that the tool is only useful to learn about U.S. law. Also remember that, as explained above in So, does the author get all of his or her rights back?, the termination of transfer provisions only take effect with respect to use within the U.S. This means that the agreement or transfer an author is seeking to terminate must relate to a territory that includes the U.S., whether it’s U.S. only, North America or worldwide.

 

How does the Termination of Transfer Tool calculate notice and termination windows where there is ambiguity in the statute governing termination?

Where there is ambiguity in the statute, the Termination of Transfer Tool follows existing guidance issued by the U.S. Copyright Office.  For example, when grant was made before 1978 and the work was not created until after January 1, 1978 (so-called “gap grants”), the Termination of Transfer Tool follows the recommendation of the Copyright Office that § 203 should govern the termination and the termination window should start 35 years from the post-1978 creation date (or 40 years if the publication rights were included). Similarly, the Termination of Transfer Tool follows the Copyright Office’s guidance on the date by which copyright must have been first secured to be eligible for a new termination right under § 304(d) (October 26, 1939).

 

Questions About Creative Commons and Authors Alliance

For more information about Creative Commons, check out our website http://creativecommons.org/.  For more information about Authors Alliance, check out our website at http://authorsalliance.org.

 

Have a question that is not answered here?

Feel free to send questions to us at info@rightsback.org.