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

* In no event will the termination window begin later than 40 years after the date of the grant.

Copyright © 2012 by Lisa A. Alter, All Rights Reserved.
Third Edition. Lisa A. Alter, Esq.

Show 1 footnote

  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.