It is generally believed that any grant under copyright made by an author would be subject to termination under one of the statutory termination provisions. However, there are instances in which such a grant may fall outside the scope of any of the termination provisions, and other instances in which it may not be clear which termination provision applies.
Pre-1978 Grants of Rights in Works Subsisting, but not Registered or Published Until After 1977
The United States Copyright Act accords protection for works created before January 1, 1978 but neither registered nor published prior to that date. The copyright in these works will endure until 70 years after the death of the last author to die (and if published on or before December 31, 2002, will not expire before December 31, 2047). However, grants of rights in such works made prior to January 1, 1978 do not appear to be eligible for statutory termination. Consider the following: In 1972, an author writes a composition entitled “Unsung Melody” and assigns perpetual worldwide rights in the composition to a music publisher. The work is not registered or published. The music publisher publishes the composition in 2005. The author will not be able to terminate the grant of rights to “Unsung Melody” under Section 304(c) of the Copyright Act because the work was neither registered nor published prior to January 1, 1978. The author will not be able to serve notice of termination under Section 203 because the composition was not the subject of a grant made by the author on or after January 1, 1978. A strict construction of the copyright termination provisions reveal that the grant of rights in “Unsung Melody” is not subject to termination.
Copyright Termination Gap
Under certain circumstances an author may have entered into an agreement prior to January 1, 1978 pursuant to which the author agrees to transfer to the grantee rights in works that the author will create during the course of the agreement. In the event that the agreement applies to works created on or after January 1, 1978 these post-1977 works may fall into what is known in the industry as the “Gap” in the termination provisions. Consider the following: An author enters into a term songwriter agreement with a music publisher in 1977 pursuant to which she grants to the publisher all rights under copyright to every composition she writes during the 5-year period beginning January 1, 1977. The grant is a worldwide grant for the life of copyright in each of the compositions and any renewals or extensions thereof. In 1980, the author writes a composition entitled “Three Years Together” and the publisher publishes the composition in that year. The author is looking forward to terminating her agreement with the music publisher and recapturing this composition. She may not rely upon the Section 304(c) termination right because the composition was not registered or published prior to January 1, 1978. The agreement was executed by the author prior to January 1, 1978, so an argument might be made that the author similarly does not have the right to terminate the grant under Section 203. However, the better approach is to imply a grant by the author made as of the date that the song was created in 1980 and to find that the author has the right to terminate the grant on the earlier to occur of (i) 35 years after the date of publication of the composition or (ii) 40 years after the date of creation.
In recognition of the Gap in the termination provisions, the United States Copyright Office has amended its regulations to clarify that it will record Section 203 notices of termination for works created after 1977 even when the agreement to make a grant was made before 1978. It should be noted that under these circumstances it may become important to precisely identify the date of creation of a work. According to the Copyright Act, “a work is ‘created’ when it is fixed in a copy or a phonorecord for the first time.”1 If the exact date of creation is uncertain the parties may look to the initial date of registration or publication, or the date on which a work was delivered to a publisher, record label, or performing rights organization.
Third Edition. Lisa A. Alter, Esq.