October 14, 2013
This year, a window has opened providing composers, artists, photographers, writers and other creators of certain copyright protected works the opportunity to reclaim ownership of their works. In order to assert those rights, however, the original creators must take action within a limited period of time.
The Copyright Act of 1976 included a provision granting the authors of works created after 1977 the opportunity to recapture copyrights in those works that they may have transferred to other parties. This right is commonly recognized as a “termination right” which enables the original copyright owner to terminate ownership transfers that he or she granted for those post-1977 works.
The termination right is exercisable thirty-five years after the creation of the work. Accordingly, the first group of creative works subject to the termination rights, those created in 1978, reach the recapture period in 2013.
Termination rights must be exercised within a five year period from the date when the work is first eligible for recapture. Additionally, advance notice of at least two years must be provided to the party currently in possession of the rights for the work when invoking the termination right. Thus, notice of the exercise of the termination rights for the 1978 works must be provided by 2016.
Termination rights are not granted to “works-made-for-hire.” Accordingly, those who were commissioned to create the work in question can not reclaim ownership of that material.
From this point on, a new generation of copyright protected works will become eligible for recapture each year. The creators of those works should recognize the opportunities presented to them by termination rights. They should take an inventory of their post-1977 works and identify those they desire to reclaim. Prompt action is important in order to ensure that notice of exercise of the right is provided on a timely basis.
Parties who have acquired ownership of post-1977 works should also inventory the materials they possess that are subject to the termination right. They should develop processes to support effective management of termination notices they receive. They should also develop a strategy to deal with the exercise of termination rights.
As artists become increasingly active asserting their termination rights, a critical issue will be the determination of whether or not a specific work is work-made-for-hire. Both artists and the parties who acquired original works must carefully review the documentation associated with the transfer of those works in order to evaluate accurately the status of all materials in question.
The rise of termination rights complicates copyright management strategies and practices. It provides an important tool for creative artists, enabling them to re-assert artistic and commercial control over their work. It also presents a challenge to parties who acquire control over those works.