Statutory Termination of Transfers/“Recapturing Copyrights”: Post 1977 Grants

Section 203 Termination

Grants of works executed by the author on or after January 1, 1978, may be terminated under Section 203 of the Copyright Act under slightly different conditions from those applicable to pre-1978 grants. Unlike termination pursuant to Sections 304(c) and 304(d), Section 203 termination is based on the date of the grant rather than the date of initial registration or publication of the work. Accordingly, Section 203 termination may be available to a work regardless of whether it was initially created or copyrighted before, on, or after January 1, 1978, as long as the grant was executed by the author on or after January 1, 1978. Moreover, the termination provisions of Section 203 are limited to grants executed by the author. This means that any grants or licenses executed by the author’s successors on or after January 1, 1978, are not subject to statutory termination. The Section 203 termination right does not apply to a grant of rights in a work made for hire or a grant made under will.

Grants executed by the author on or after January 1, 1978, may be terminated during a 5-year period beginning 35 years after the date the grant was made; or, if the grant includes the right of publication of the work, during the 5-year period beginning on the earlier of (i) 35 years after the date of publication under the grant, or (ii) 40 years after the date of the grant. Note that for grants of rights in subsisting, previously published, copyrights, the date of the grant will generally be contemporaneous with the date of publication under the grant. A different result may occur if the work was out of publication as of the date of the grant.

If the author dies prior to serving notice of termination under Section 203, the termination interest vests in the author’s heirs, who are defined by statute to include the author’s widow or widower, children, or grandchildren, or, in the event the author’s widow or widower, children, or grandchildren are not living, the author’s executor, administrator, personal representative, or trustee.

If the composition subject to termination is a joint work and the grant was executed by two or more of its authors, then the termination must be effected by a majority of the authors who executed the grant (in the case of a deceased author, the termination notice may be executed by his/her heirs). This means that in the case of a grant executed by 2 authors of a work, those authors or their heirs must work cooperatively to serve notice of termination.

Notice of termination under Section 203 must conform to the procedures for notice and recordation outlined by the Copyright Act and Copyright Office Regulations. Notice of termination under Section 203 must be served on the grantee or the grantee’s successor in interest no more than 10 nor less than 2 years before the effective date of termination. That is, notice must be served any time during the period beginning 25 years after the date of the grant and continuing until 38 years after the date of grant; provided, if the grant includes the right of publication of the work, notice must be served during the earlier to occur of (i) the period beginning 25 years after the date of publication and continuing until 38 years after the date of publication, or (ii) the period beginning 30 years after the date of the grant and continuing until 43 years after the date of the grant.

The right of termination accorded under Section 203 of the Copyright Act is not limited to circumstances in which an author has failed to exercise the right to terminate a prior grant under Section 304(c). Imagine, for example, an author who registers a song for copyright on March 1, 1930, assigns the right to a music publisher in April of that year, and serves notice of termination on the music publisher pursuant to Section 304(c) effective March 1, 1986. After serving notice of termination, the author reassigns the copyright in the song to the original music publisher.1 Beginning in April 2011, the author or his heirs may serve notice of termination pursuant to Section 203 on the publisher effective April 1, 2021.

The earliest effective date of termination of a grant made by an author on January 1, 1978, is January 1, 2013.

Terminating Grants Under Section 203

  SERVING NOTICE RECAPTURE DATES
  Notice of termination may be served as Termination will be effective as
If the copyright date is: EARLY as TEN years before LATE as TWO years before EARLY as publication date +35 years* LATE as publication date +40 years* years
1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 2034 2035 2036 2037 2038 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 2034 2035 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 2034 2035 2036 2037 2038 2039 2040

  1. In this example, the author may assign the rights to a third-party music publisher but must wait until the effective date of termination has occurred. The grant to the third-party music publisher will be subject to termination under Section 203.