If you sell your book or song or movie, the Copyright Act’s termination provisions give you an opportunity to re-claim it after a period of years. The termination provisions are among the most complex and confusing provisions in the Copyright Act. Here’s an oversimplified rendition of the primary termination provisions:
Section 203 Termination Provision. Section 304 Termination Provision. The Gap. Example: Suppose John Writer signs an agreement with a publisher in 1977 to deliver a mystery novel. John Writer delivers the novel in 1979 and the mystery is published in 1980. The mystery is a classic and is still a best-seller in 2010. John Writer wants to re-claim the rights in his mystery novel by terminating the assignment to the publisher.
Does John Writer have the termination rights to do so? It’s unclear. Section 203 arguably doesn’t apply because John Writer executed the publishing contract prior to January 1, 1978. Section 304 arguably doesn’t apply because the copyrighted work (i.e., John Writer’s mystery novel) did not exist as of January 1, 1978.
Copyright Office Action. It doesn’t seem logical that Congress deliberately excluded a group of creators from the ability to re-claim their works. That’s why the Copyright Office is attempting to sort through the situation now. The gap is one of many problems for Section 203 terminations, the first of which will begin in 2013 (i.e., 35 years after 1978).
I smell litigation wafting gently through the air.
Section 203 of the Copyright Act provides that you may terminate an assignment and reclaim ownership of your copyrighted work after thirty-five years for any assignment you make on or after January 1, 1978. January 1, 1978 is the effective date of the current Copyright Act.
Section 304 of the Copyright Act provides that for any copyrighted work that was existing as of January 1, 1978, and that was assigned prior to January 1, 1978, you may terminate the assignment after fifty-six years.
There is a gap in termination rights for a situation in which the assignment was made prior to January 1, 1978 but the work was not created until after January 1, 1978. Here’s an example of how that can happen.