The statutory provisions governing the termination (or recapture) of grants of copyright interests under the Copyright Act of 1976 seem relatively simple on their face, but the application of those provisions has raised numerous issues of considerable importance to creators and purveyors of copyrighted material. There has been some clarification through litigation, but many significant issues remain unresolved.
In brief, the termination provisions were added by Congress to copyright law to give creators of copyrighted materials a "second bite at the apple." These provisions give creators (and their heirs) a chance to renegotiate disadvantagous grants or to enter into entirely new grants to take advantage of the value of creative material that may not have been apparent at the time of the original grant.
Over the next several weeks, I will post a series of short articles to address many of these open issues, to provide some practical guidance to how these provisions work and to give warnings as to the traps and pitfalls that may be encountered.
In the posts to follow, I will cover the following issues (among others):
- Where can I find the statutory provisions concerning copyright termination?
- What kinds of grants can be terminated and recaptured?
- When can they be terminated (i.e., which grants are currently or soon to be subject to termination rights)?
- Which grants can no longer be terminated (i.e., the statutory period has passed)?
- Who can terminate them?
- What do you have to do in order to terminate them?
- What happens after they are terminated?
- What happens to grants that are downstream from the original grant (i.e., licenses from a grantee)?
- What happens to derivative works that were created under a license once that license is terminated?
- Can I contract away my right to terminate? Or give that right to another person or entity? How and when might this happen?
- What’s all of this I am hearing about works for hire and whether they can be terminated?
- What are the advantages and disadvantages to creating or licensing works via a loan-out company or similar entity?
- What happens to grants regarding the foreign exploitation of a work?
- What is happening with the class actions I have been hearing about, especially those concerning copyright in music?
So please watch this space for articles to come!