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
  1. 17 U.S.C. § 304(c).