Each of the statutory termination provisions (both pre-1978 and post-1977) stipulates that in the event an author dies before serving notice of termination, the author’s right of termination is owned and may be exercised by his/her statutory heirs.
- In the event that the author has a surviving spouse but no surviving children or grandchildren, then the termination right is owned entirely by the author’s spouse.
- If the author dies leaving a spouse and children then the termination interest is owned 50% by the author’s spouse and 50% by the author’s children on a per stirpes basis.
- The shares of a deceased child are owned by that child’s children on a per stirpes basis but can be exercised only by a majority of them.
In order to exercise the termination right of a deceased author, a majority of the statutory heirs must be signatory to the notice of termination. As a practical matter, this means that in the event that the author has more than one statutory heir, a certain degree of cooperation is necessary in order to recapture rights. For example, if an author dies leaving a spouse and 3 children, at least the spouse (50%) and 1 child (16.7%) must be signatory to the notice of termination. If an author dies leaving no spouse but 7 children, at least 4 of those children must be signatory to the notice of termination. It is not unheard of for rights to remain with a publisher because the author’s statutory heirs are not able or willing to cooperate to recapture rights.
Third Edition. Lisa A. Alter, Esq.