Copyright Office Takes Steps to Close Termination Gap for Pre-1978 Works

A copyright owner who transfers or sells the copyright in his work can terminate the transfer and reclaim his copyright after a number of years.

What’s the Termination Gap?

Two provisions of the Copyright Act address termination rights. Section 203 of the Copyright Act allows you to reclaim the copyright in a work you assigned on or after January 1, 1978. Section 304 of the Copyright Act allows you to reclaim the copyright in a work that existed prior to January 1, 1978. There is a narrow gap in that neither of these sections explicitly address termination rights for a work assigned prior to January 1, 1978 but not actually created until after January 1, 1978. I discuss and give examples of this termination gap in a previous blog posting.

Clarified Copyright Regulations

The Copyright Office recently took a baby step towards closing the termination gap by amending its regulations governing the required Section 203 termination notice. The Copyright Office will accept and record section 203 termination notices even if (i) the work was assigned prior to January 1, 1978 and (ii) the work was created on or after January 1, 1978. The Copyright Office rationalizes that these so-called gap grants can be terminated pursuant to Section 203 because it is not legally possible to transfer a copyrighted work until the copyrighted work actually exists.

More Work to Do

That’s where the Copyright Office stopped its official efforts to resolve the termination gap. According to the Copyright Office, any additional disputes over whether copyrighted works falling in the gap can be terminated under Section 203 must be settled by the courts or by Congress.