Termination of Transfers

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 53

An unusual and important feature of the 1976 Copyright Act is its grant to the author or to the author's survivors of the power to terminate transfers of copyright. It will be recalled that the principal purpose of the renewal provisions of earlier U.S. copyright statutes was to give to authors the power at the end of the initial term of copyright to reclaim the copyright for a second term free and clear of any earlier transfers or encumbrances, and to afford authors an opportunity to renegotiate assignments and licenses with a better knowledge of the economic value of their works. It will also be recalled that the renewal right has been abolished for works created on or after January 1, 1978, the term of copyright protection of,whichi is now the life of the author plus fifty years. In the event a work is created, say, in 1979 and the author transfers copyright in 1980, that copyright might continue-depending on when the author dies--for another fifty or seventy br one hundred years, without any renewal term that can restore an unencumbered copyright to the author.

Congress therefore decided to grant to authors and their survivors a power to recapture the copyright, similar to the right to claim the renewal copyright provided under the 1909 Act and its predecessors. The very elaborate provisions for the termination of transfers of copyright are set forth in section 203. Given the background just recounted, the power to terminate under section 203 applies only to copyright transfers (and licenses), whether exclusive or nonexclusive, executed by the author on or after January 1, 1978. By serving a timely notice of termination, the author may effect such a termination-and recapture an unencumbered copyright-"at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant." Mindful of the controversial Supreme Court decision that held that the author could, during the initial term of copyright, validly transfer his interest in the renewal term, Congress provided to the contrary in section 203(a)(5)

with regard to the power to terminate transfers: "Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant." Although the termination power is inalienable, it must be exercised in a timely manner, through the proper procedures, and by the proper persons announced in the statute; the transfer is...