In prior posts, I provided a very brief overview of copyright termination followed by a description of where to find the statutory provisions governing termination and a discussion of which types of grants can be terminated.
Now, let's turn to the question of when a grant of an interest in a copyright can be terminated. Here, the timing is completely different depending upon whether the grant in question was made before or after January 1, 1978.
Timing of Pre-1978 Grants
For pre-1978 grants, termination may be made effective for a five-year window between 56 and 61 years after copyright was secured in the subject work. 17 U.S.C. § 304(c)(3). Copyright for these works is deemed to have been secured on the date that it was published with the required notice. This often, but not always, can be determined by copyright office records. And note that unlike the term of copyright in general, which under current law extends to the end of the year in which copyright otherwise have expired, the termination requirements are calculated to the specific anniversary date, as in the example below.
To put this in concrete terms, a grant of rights in a work that was published on July 1, 1970 can be terminated effective between July 1, 2026 and July 1, 2031. In an upcoming post, I will talk about the mechanics of notice of termination, which must be given at least two years, but not more than ten years prior to the effective date.
Timing of Post-1978 Grants
For post-1/1/78 grants, termination may be made effective between 35 and 40 years after the grant was made. Except that if the grant included a right of publication, the five-year window begins on the earlier of 40 years from the grant or 35 years from publication of the work. This provision was designed to address the common situation where an author grants to a publisher rights in a work that has not yet been created (e.g., a writer enters into a deal with a book publisher for a book yet to be written). This gives the publisher a little bit more time between publication of the book and the beginning of the termination window in which it is certain it can exploit its rights.
Again to put this into concrete terms, a grant of copyright made on July 1, 1990 can be terminated effective between July 1, 2025 and July 1, 2030. But if the grant includes a right to publish, and the book that is the subject of the grant was not published until July 1, 1992, the termination window would be between July 1, 2027 and July 1, 2032. In other words 35 years after publication. And if, under this same grant, the book was not published until July 1, 1997, then the window would begin 40 years after the grant, July 1 2030, and extend until July 1, 2035.
Gap Grants
For those of you reading this and thinking that this reminds you of a nightmarish law school exam, consider the situation where a grant was made before January 1, 1978 but the work was not created until after that date. Which statutory provision does that fall into? This will be covered in a post to come.
Notice Requirements
Next up will be a discussion of when notice of termination must be given. Some good news: the rules are the same for both pre-and post 1/1/78 grants.
For Post-1/1/78 grants: "Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier." 17 U.S.C. § 203(a)(3)
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