Statutory Termination of Transfers/“Recapturing Copyrights”: Pre-1978 Grants

Section 304(c) Termination

Under Section 304(c) of the Copyright Act,1 grants or licenses of pre-1978 copyrights executed before January 1, 1978, by the author or his/her heirs may be terminated during a 5-year period beginning 56 years after the earlier of registration or publication. This 5-year period is commonly referred to as the “termination window.” Any exclusive or non-exclusive grant may be terminated, with the exception of a grant of rights in a work made for hire or grants made by will.

A grant may be terminated even if the original contract states that the grantee shall be entitled to retain its rights for the entire term of the copyright, including renewal and extended terms, because the statutory termination right overrides the contract.

If the author dies before exercising the termination right, 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. Termination may be exercised only by following the procedures for notice and recordation outlined by the Copyright Act and Copyright Office Regulations.

Notice of termination must be served on the grantee or grantee’s successor in title no more than 10 nor less than 2 years before the effective date of termination. That is, notice must be served anytime during the period beginning 46 years after the original copyright date and continuing until 59 years after the original copyright date.

It is important to note that while renewal applications may be filed at any time during the calendar year in which the 28th anniversary of copyright occurs, the date of the start and close of the 5-year termination window corresponds with the original month and day of copyright. For example, if the original copyright date is April 29, 1955, then the earliest possible effective date of termination is April 29, 2011. In this case, the earliest possible date for serving notice of termination is April 29, 2001. The latest possible effective date for termination in this example is April 29, 2016, and the latest possible date for serving notice of termination is April 29, 2014. While it is recommended that the author or statutory heir(s) serve notice of termination on the earliest date possible, notice is timely if it is served at any time up until the date 2 years before the end of the 5-year termination window. Absent proper notice of termination, rights in the work will remain with the grantee.

Terminating Grants Under Section 304(c)

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 copyright date +56 years LATE as copyright date +61 years
1947
1948
1949
1950
1951
1952
1953
1954
1955
1956
1957
1958
1959
1960
1961
1962
1963
1964
1965
1966
1967
1968
1969
1970
1971
1972
1973
1974
1975
1976
1977
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
2036
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
2036
2037
2038

Section 304(d) Termination—A Second Bite at the Apple?

Section 304(d) of the Copyright Act affords the author or the author’s heirs another opportunity to terminate pre-1978 grants under copyright in the following limited circumstances: (i) the work was originally registered or published on or before October 26, 1939; and (ii) the author or heirs failed to exercise termination rights under Section 304(c). Any exclusive or non-exclusive grant that meets the foregoing criteria may be terminated with the exception of a grant of rights in a work made for hire or a grant made by will. Termination under Section 304(d) may be effected at any time during the 5-year period beginning 75 years after the original copyright date (the “Section 304(d) Termination Window”).

Similar to Section 304(c) termination, if the author dies before exercising the termination right, 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. Termination may be exercised only by following the procedures for notice and recordation outlined by the Copyright Act and Copyright Office Regulations. Included in the Copyright Office Regulations is a provision that the Section 304(d) termination notice must specify that notice of termination was not served pursuant to Section 304(c). This precludes the termination claimants from recapturing rights under Section 304(c), re-conveying the recaptured rights, and then once again serving a notice of termination.

Notice of termination under Section 304(d) must be served on the grantee or the grantee’s successor in title no more than 10 nor less than 2 years before the effective date of termination. That is, notice must be served at any time during the period beginning on the date 65 years after the original copyright date and continuing until 78 years after the original copyright date.

As with Section 304(c) terminations, the date of the start and close of the 5-year termination window under Section 304(d) corresponds with the original month and date of copyright. For example, if the original copyright date is June 1, 1935, then the earliest possible effective date of termination is June 1, 2010. In this case, the earliest possible date for serving notice of termination will be June 1, 2000. The latest possible effective date of termination in this example is June 1, 2015, and the latest possible date for serving notice of termination is June 1, 2013.

While it is recommended that the author or statutory heir(s) serve notice of termination on the earliest date possible, notice is timely if it is served at any time up until the date 2 years before the end of the 5-year termination window. Absent proper notice of termination, rights in the work will remain with the grantee.

Terminating Grants Under Section 304(d)

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 copyright date +75 years LATE as copyright date +80 years
1928
1929
1930
1931
1932
1933
1934
1935
1936
1937
1938
1939*
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019

* Provided that the work was originally copyrighted on or before October 26, 1939.

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

Show 1 footnote

  1. 17 U.S.C. § 304(c).