Agreement of Transfer
When used in this tool, this term means any agreement under which the author of a copyrighted work grants another person or entity some or all of the copyright rights in relation to that work. An agreement can refer just to one particular use of a copyrighted work, such as a license of the right to publish the work; or it can refer to the entire copyright, for example, an assignment of copyright ownership. The kinds of agreements or transfers 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, for example, an exclusive license to publish and distribute a sound recording;
- A non-exclusive license of one, more or all of the copyright rights, for example 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, the author 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.
Since 1978, U.S. copyright law defines the term “children” to include a person’s immediate offspring, whether legitimate or not, and any children legally adopted.
Prior to January 1, 1978 the definition may vary because it depended on applicable state law. When using the tool, if the agreement is dated before January 1, 1978, it’s probably best to treat the term “children” as broadly as possible in order to determine the broadest possible termination windows. In this instance, it would be important for an author to raise the issue with the attorney assisting with the termination claim.
This term means a collection of materials or data that is co-ordinated, selected or arranged in such a way as to create a new copyrighted work in the collection. The specific examples given in the U.S. Copyright Act include catalogs, directories, and software programs; but the term extends beyond just written works to include all types of compilations of copyrighted works.
This term means a combination of works, which are each themselves independent and separate works protected by copyright. The specific examples given in the U.S. Copyright Act include a magazine, an anthology, or an encyclopedia, but the term extends beyond just written works to include all types of compilations of copyrighted works.
Copyright grants protection to certain categories of creative, expressive works. Generally, works that are protected by copyright are: written works such as books, scripts, websites, lesson plans, and any other forms of writing; visual works such as photographs; audiovisual works such as films, videos and video games; music such as musical compositions and sound recordings; and artistic works such as artworks, paintings, sculptures and architectural works.
That said, not everything is eligible for copyright protection. For example, copyright law does not protect ideas or factual information. The U.S. Copyright Office provides more information about the scope of copyright law here.
The protection that the law gives to copyrighted works is in the form of exclusive rights. These exclusive rights give the owner of copyright in a work the ability to control who may exercise those rights and engage in certain activities with their work. Under U.S. copyright law, these activities include copying, distributing, performing to the public, adapting, displaying in public, or transmitting the work online.
Copyright registration number
This is the number that is given by the U.S. Copyright Office on the certificate of registration; the certificate of registration confirms that a copyright work has been registered with the U.S. Copyright Office. See the U.S. Copyright Office’s website for more information about registration.
Creation (of the Work)
A work that is protected by copyright law is “created” when it is first recorded, stored or fixed in a material form from which it can be again reproduced, perceived or communicated. This means, for example, that a copyright protected work is created when an author puts pen to paper, hits save on a computer, or records on a video camera.
Duly authorized agent
This term refers to anyone who has authority to act for the owner of a termination interest. The term is not defined in the U.S. Copyright Act, but it would seem that a person can be a “duly authorized agent” for someone else for termination purposes either by express appointment or by operation of law.
In the case of an express appointment, this would mean that the person entitled to terminate an agreement under the termination of transfer provisions took steps to authorize someone else to act for them in relation to their termination interest. It is not required that the authority be in writing, but it can be prudent, so that it is clear what the precise parameters of the authority are and so that it is easy to prove, if challenged.
In the case of a person becoming a duly authorized agent by operation of law, the U.S. Congress made clear that the term “duly authorized agent” is also intended to cover a legally appointed guardian for children below the legal age or anyone appointed to represent the interests of a person incompetent to sign because of age or mental disability.
Employment, work created within the scope of
There is no clear rule as to when a work is created within the scope of a person’s employment and when it is not.
Prior to 1978, typically a court would consider that the employer was the author and first owner of copyright in all works that were created by an employee during the regular course of business. In addition, a person or company that hired someone else to create a work would be the first owner of copyright if they had the right or ability to supervise the creation of that work.
From 1978 onwards, a court will consider a range of factors to determine whether a work was created within the scope of employment including: the ability of the hiring party to control the manner and means of creation of works; the skill required; the provision of employee benefits; the tax treatment of the hired party; and whether the hiring party has the right to assign additional projects to the hired party. If the hiring party has a large degree of control of the tasks performed and can assign additional projects on an ongoing basis and the hired party receives employee benefits and being taxed as an employee, then it is more likely that a work is created within the scope of employment. Other factors may include who provides the tools and equipment (the hiring or hired party), the location of the work, the duration of the relationship between the parties, whether the hiring party hires and pays assistants and whether the work is part of the regular business of the hiring party.
Both tests are highly circumstance-specific. When using the tool, it is best to assume that the work was not created within circumstances of employment (works created in circumstances of employment qualify as “works made for hire” are not eligible for termination; see What kinds of agreements cannot be terminated? for more details) and continue to use the tool to see if a termination right otherwise arises. It is important for an author who is unsure whether a work in question was created within the circumstances of employment to get legal advice on this issue before proceeding with a termination claim.
When used in the context of pre-1978 agreements and transfers that are signed by someone other than the author, this term refers to executors only. An executor is a person who is designated in the author’s will to act on the author’s wishes as set out in their will.
When used in the context of an agreement or transfer of any date (pre- or post-1978) where the author dies after October 27, 1998 with no surviving immediate family, this term refers to “executors, administrators, personal representatives, or trustees.” Prior to October 27, 1998 (when the U.S. Sonny Bono Copyright Term Extension Act 1998 (CTEA) passed), if the author died prior to being able to exercise their termination of transfer right and there was no surviving spouse, children or grandchildren, the termination right would lapse. With the passage of the CTEA, instead of lapsing the right could be exercised by either “the author’s executor, administrator, personal representative, or trustee.” The term executor, again, is a person who is designated in the author’s will to act on the author’s wishes as set out in their will. An administrator is a person appointed to function in place of an executor if the author leaves a will but the executor is never appointed or declines to serve. There is no express definition for the term personal representative but it would seem that it is intended to cover situations where a person has authority to represent a deceased author but lacks the formal appointment characteristic of an executor or administrator. A trustee is a person who the law recognizes as having “equitable duties” (as distinct from legal duties) to deal with property for the benefit of others; a trustee serves as a fiduciary for the others, which means that they must act in the best interest of those whom they serve. A trustee may be appointed by a copyright owner to manage their affairs.
For the purposes of the termination of transfer provisions, this term refers to any surviving children of the author’s “Children” if the author’s children died prior to being able to exercise the termination right.
Instructional text (text and/or graphics)
This term refers to a literary, pictorial, or graphic work prepared for publication with the purpose of use in systematic instructional activities. As a general rule, it is intended to refer to what might loosely be called “textbook material,” whether or not in book form or prepared in the form of a text. The basic characteristic of an instructional text is that the purpose underlying its preparation is for use in systematic instructional activities, as opposed to works prepared for use by a general readership.
Next of kin
When used in this tool, this term means an author’s “next of kin” as determined the intestacy laws of the domicile of the author at the time of his or her death; so, if the author lived in North Carolina at the time of death, the laws of North Carolina would determine the identity of the next of kin, even if the author was traveling out of state at the time he or she died.
This term is relevant to pre-1978 agreements or transfers. If a pre-1978 agreement or transfer was signed by an author’s next of kin, it may be able to be terminated under the termination of transfer provision. For post-1978 agreements or transfers, only those signed by the author(s) may be terminated.
This term refers to the period during which a termination notice can be served. The notice window opens no less than two and not more than ten years before the effective termination date selected by the person(s) eligible to terminate the agreement during the “Termination Window.”
Publication (of the Work)
This term is defined by copyright law to mean the distribution of copies of a work to the public in some manner such as by sale or lending. The public performance or public display of a work does not constitute a publication. This means, for example, that selling copies of a book or video to the public is a publication; but performing a play in a theatre is not a publication because no copy is distributed to the public. Offering to distribute copies of a work to a person for the purpose of further distributing, performing or displaying it to the public does, however, constitute a publication. This covers, for example, offering a film to a broadcaster or movie theatre to show to the public.
This term means a work that is created and relates to an existing work by another author or artist. Examples include forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies and appendixes that refer to an existing work.
This is a 5-year period during which the agreement may be terminated. The person(s) eligible to terminate the agreement may select a date within this window as the effective termination date of the agreement or transfer.
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.
When used in this tool, this term means the surviving spouse of the author. For post-1978 agreements, the term is defined to mean the surviving spouse according to the law governing in the author’s domicile at the time of the author’s death, regardless of whether the spouse later remarries. For pre-1978 agreements, there is no precise definition of this term, and it is unclear as to whether a spouse who later remarries still qualifies as a widow(er). If divorce occurs, then the surviving spouse probably does not qualify as a widow for the purposes of this tool regardless of the date of the agreement.
If unsure about whether a person qualifies as a “widow(er)” or not, it’s probably best to start with an interpretation as broad as possible. In any case, it is important for authors to raise this issue with an attorney.
This term refers to a person’s last will and testament. Because copyright is a form of personal property, it can be bequeathed to people by an author (or one of their successors) in their will.
Work (protected by copyright law)
The technical meaning for this term is an original, creative expression that is embodied in a tangible form. Under U.S. copyright law, this means that the work must have a minimum “spark of creativity” and must be recorded somehow, either written down, saved to disc, filmed, or recorded in such a fashion that it can be reproduced again.
Works made for hire
This terms means either a work created in circumstances of employment, or a work specially ordered or commissioned as one of the nine categories specified by the U.S. Copyright Act for works made for hire, and the parties agreed and signed in writing that the work was a “work made for hire.” The nine categories set out by statute are: (i) a contribution to a collective work, (ii) as part of a motion picture or other audiovisual work, (iii) a translation, (iv) supplementary work, (v) as a compilation, (vi) an instructional text, (vii) a test, (viii) answer material for a test, (ix) an atlas. For more information about “works made for hire,” please see What kinds of agreements cannot be terminated?.
When used in this tool, this term means a document or some other form of writing that records the parties’ agreement. As a general rule, the term means that the entire or a substantial part of the agreement between the parties is recorded in the one document. Sometimes there may be more than one document, if, for example, the parties have later varied their agreement by a new document that serves as an addendum, appendix or some other variation of the original document or an exchange of correspondence.