Notices of Termination
The Copyright Act permits authors or their heirs, under certain circumstances, to terminate the exclusive or nonexclusive grant of a transfer or license of an author’s copyright in a work or of any right under a copyright. These termination provisions are set forth in 17 USC §§ 203, 304(c), and 304(d), with the applicable provision depending on a number of factors, including when the grant was made, who executed it, and when copyright was originally secured for the work. These provisions are intended to protect authors and their heirs against unremunerative agreements by giving them an opportunity to share in the later economic success of their works by allowing authors or their heirs, during particular periods of time long after the original grant, to regain the previously granted copyright or copyright rights. Note that grants made via a will or involving a work made for hire may not be terminated under these provisions (for more information about works made for hire, refer to Circular 30). Additionally, there is a limitation on termination where derivative works are concerned. A derivative work prepared pursuant to a grant before its termination may continue to be utilized under the terms of the grant after its termination, but the post-termination rights to authorize new uses of the derivative work that are not covered by the grant and to prepare new derivative works revert to the authors or their heirs.
To terminate a grant, a written, signed notice of termination must be served on the relevant grantee (i.e., the individual or entity that received the grant that is being terminated) or the grantee’s successor in interest, and a copy of the as-served notice must be properly recorded with the Copyright Office. For more information about notices of termination, including their required form and content, see 17 USC §§ 203, 304(c), or 304(d), as applicable; 37 CFR § 201.10; and the Compendium of U.S. Copyright Office Practices (Chapter 2300: Recordation).
Eligibility to Terminate
To terminate a grant, one must be eligible under one of the termination provisions of Title 17, section 203, 304(c), or 304(d). Determining which provision applies depends on a number of factors, including when the grant was made, who executed it, and when copyright was originally secured for the work.
- Section 203 applies to grants executed by the author on or after January 1, 1978, regardless of whether the copyright in the author's work was secured before or after that date.
- Section 304(c) applies to grants executed by the author or the author's heirs before January 1, 1978, and only if the copyright in the work was secured before January 1, 1978.
- Section 304(d) applies to grants executed by the author or the author's heirs before January 1, 1979, and only if the copyright in the work was secured between January 1, 1923, and October 26, 1939.
- Additionally, the grant may be a "gap grant." These occur where an author made a grant before January 1, 1978, involving a work created on or after that date. The Office has concluded that gap grants may be terminated under section 203 because, as a matter of copyright law, a transfer that predates the existence of the copyrighted work cannot be effective (and therefore cannot be executed) until the work of authorship (and the copyright) come into existence. In the case of gap grants, the Office may record a notice of termination under section 203 if the notice states that the date of execution for the grant is the date that the work was created.
Who May Terminate
Identifying the person or persons who may terminate a grant depends on a number of factors, including whether the author or the author's heirs made the grant, whether there are multiple authors, and which termination provision applies. Generally, a living author can terminate a grant he or she made. If a grant was made by more than one author on or after January 1, 1978, it can be terminated by a majority of such authors. But if a grant by more than one author was made prior to that date, then any one of those authors can terminate the grant to the extent of his or her own share. Where an author is deceased, a grant executed by the author can generally be terminated by a majority interest of the author's heirs, and if there are no heirs, by the author's executor, administrator, personal representative, or trustee. Where a grant was executed by one or more of the author's heirs, the grant can be terminated by the surviving person(s) who executed the grant.
When to Terminate
Grants may only be terminated during a specific statutory window of time and must specify the date that the termination goes into effect. The effective date must fall within a five-year "termination period," which is based on factors set forth in sections 203, 304(c), or 304(d), as applicable. The notice must be served no less than two years and no more than ten years before the effective date and must be recorded with the Office before the effective date. The Office has developed a series of tables that may be useful in identifying the correct termination period, selecting an effective date of termination, calculating deadlines for service, and recording a notice of termination:
Grants Executed by the Author on or after January 1, 1978 (17 USC § 203):
- Grant Did Not Convey Right of Publication
- Grant Conveyed Right of Publication (Calculation Based on Date of Publication)
- Grant Conveyed Right of Publication (Calculation Based on Date of Execution)
How to Record a Notice of Termination with the Copyright Office
Any notice of termination submitted to the Office for recordation must comply with the Copyright Act’s statutory requirements (17 USC §§ 203, 304(c), 304(d)) and the Office’s regulations (37 CFR § 201.10(f)) and instructions, including the following:
- The submitted notice must be a true, correct, complete, and legible copy of the signed notice of termination as served on the grantee or successor in title. 37 CFR § 201.10(f)(1)(i)(A).
- The submitted notice must be accompanied by a statement setting forth the date on which the notice was served and the manner of service, unless such information is contained in the notice itself. 37 CFR § 201.10(f)(1)(i)(B).
- The submitted notice must have been timely served and must have an effective date of termination that is later than the date of recordation. 37 CFR § 201.10(f)(1)(ii).
- The submitted notice must be accompanied by the correct filing fee as specified by 37 CFR § 201.3(c).
Additionally, all notices submitted for recordation must be accompanied by the Office’s notice of termination cover sheet (Form TCS). Completing Form TCS helps remitters ensure that they are providing all necessary information and assists Office staff in processing the submission. Form TCS and instructions for completing it can be found here.