Possible Gap in Termination Provisions


The Copyright Act gives authors (and some heirs, beneficiaries, and representatives who are specified by statute) the right to terminate certain grants of transfers or licenses, subject to the passage of time set forth in the statute and the execution of certain conditions precedent. Termination rights (also referred to as “recapture rights”) are equitable accommodations under the law. They allow authors or their heirs a second opportunity to share in the economic success of their works. Codified in sections 304(c), 304(d) and 203 of Title 17, respectively, they encompass grants made before as well as after January 1, 1978 (the effective date of the 1976 Copyright Act). (The provisions do not apply to copyrights in works made for hire or grants made by will.)

In order to allow opportunity for interested persons to provide their views, the Copyright Office sought comments regarding the application of Title 17 to the termination of certain grants of transfers or licenses of copyright, specifically those for which execution of the grant occurred prior to January 1, 1978 and creation of the work occurred on or after January 1, 1978. The Copyright Office sought comments because the deadlines for serving notices of termination for 1978 grants began to expire in 2011, and some stakeholders raised questions with the Office and some Congressional Offices.

On Monday, March 29, 2010, the Copyright Office published in the Federal Register a Notice of Public Inquiry and Request for Comments regarding the “Gap in Termination Provisions”. Initial comments were due by 5:00 p.m. eastern time on Friday, April 30, 2010, and reply comments were due by 5:00 p.m. eastern time on Friday, May 14, 2010.