Taking back a copyright you signed away: the 35-year termination right

The contract will say the grant is perpetual, irrevocable and for the full term of copyright including renewals and extensions. That drafting is normal and it is not a trick. It is simply overridden, in one narrow respect, by 17 U.S.C. § 203(a)(5): termination may be effected "notwithstanding any agreement to the contrary".

This is a different mechanism from the reversion clauses negotiated into deals — the out-of-print trigger in a book contract, the term expiry in an ordinary licence. Those are contractual, and a contract can take them away. Section 203 is statutory and cannot be signed away in advance. Until it is exercised, though, § 203(b)(6) says the grant carries on as written for the whole term. Nothing reverts on its own.

What the right actually attaches to

Section 203 covers the exclusive or non-exclusive grant of a transfer or licence of copyright, or of any right under a copyright, executed by the author on or after 1 January 1978, otherwise than by will. Four limits sit in that sentence. The author must have signed personally, not an heir and not a company the author owns; a bequest is outside it; it must grant copyright rights rather than sell a physical object; and the work must not be a work made for hire.

Non-exclusive licences are included, which surprises people. So is a "gap grant" — a pre-1978 agreement covering a work created later, which the Copyright Office treats as terminable under § 203 on a notice reciting the creation date as the date of execution.

Counting to 35, and the date you actually work backwards from

Under § 203(a)(3), termination may take effect at any time during a five-year period beginning at the end of 35 years from the date the grant was executed. Where the grant covers the right of publication, the period begins instead at the end of 35 years from publication under the grant, or 40 years from execution, whichever ends earlier. A publishing or record deal normally falls into that second measure, and the "whichever ends earlier" is a ceiling: a book still unpublished at year 40 does not push the window out indefinitely.

Shift the same grant into the publication measure and the arithmetic moves. A 1996 contract under which the book was published in 2000 gives 35 years from publication (2035) against 40 from execution (2036); the earlier governs, so the window is 2035 to 2040. The Copyright Office publishes tables for all three calculations, and they are worth using.

Section 203 or section 304 — and why most readers are in 203

Two regimes exist. Section 203 governs grants executed by the author on or after 1 January 1978. Section 304(c) governs pre-1978 grants by the author or the author's heirs where copyright was secured before 1978; its window is five years from the end of 56 years after copyright was secured. Section 304(d) added a second bite for a narrow band of older works and is now closed: the last day to serve was 26 October 2017, and such a notice had to be recorded before 26 October 2019.

Who has to sign, once the author has died

A living author terminates alone. Where two or more authors of a joint work signed the same grant, a majority of those who executed it must act. The difficulty arrives with succession: § 203(a)(2) fixes the shares by statute, and the author's will has no say in who holds them.

Section 203(b) softens this at the other end: the rights revert to everyone holding a termination interest, "including those owners who did not join in signing the notice". A sibling who refuses to sign still receives their statutory share. Refusing costs them nothing, which is why holdouts happen.

Serving and recording the notice

The mechanics are set by § 203(a)(4) and 37 CFR 201.10. There is no official form for the notice itself, but its contents are prescribed, and a notice that fails on service or recordation terminates nothing.

1. 1

   Fix the effective date

   Choose a date inside the five-year window. Every other deadline runs backwards from it, so this is the first decision.

2. 2

   Establish who must sign

   More than one-half of a deceased author's interest, or a majority of the joint authors who executed the grant. Each handwritten signature needs the signer's name and address; an agent must identify who they act for.

3. 3

   Investigate who currently owns the rights

   Serve the grantee, or the successor in title where there is reason to believe the rights moved. A reasonable investigation includes a Copyright Office records search and, for a composition licensed through a performing rights society, a report from it naming the owner.

4. 4

   Draft to the prescribed contents

   It must say it is made under section 203, name each grantee and service address, give the execution date (and publication date where publication rights were covered), identify the works, authors and grant, state the effective date and list the heirs — complete on its face, no incorporation by reference.

5. 5

   Serve it two to ten years ahead

   By personal service, first class mail or courier to the last known address, or one of the email routes the regulation permits. By mail, the date of service is the day of deposit with the Postal Service.

6. 6

   Record the served copy before the effective date

   Send a certified true, correct, complete and legible copy of the notice as served, a statement of the date and manner of service, the Form TCS cover sheet and the fee under 37 CFR 201.3(c). Recordation dates from receipt.

The failure mode is the last step, and the regulation spells it out. A notice is untimely where the effective date falls outside the five-year period, where it was served less than two or more than ten years ahead, or where recordation is on or after the effective date. An untimely notice is not rejected: the Office records it as a "document pertaining to a copyright" and does not index it as a notice of termination. The paper goes into the record, the termination does not, and nobody sends a warning.

The derivative works exception, which is not what it sounds like

Section 203(b)(1) is the limit that most often disappoints. A derivative work prepared under authority of the grant before termination "may continue to be utilized under the terms of the grant after its termination", and the privilege does not extend to preparing new ones. The film keeps running; a remake, or a new recording, needs a fresh licence.

The phrase "under the terms of the grant" was tested in Mills Music, Inc. v. Snyder, 469 U.S. 153 (1985), on the identically worded § 304(c) exception. The author's heirs terminated a 1940 assignment of a song; over 400 record companies had made recordings under licences the publisher issued. The Supreme Court held the publisher kept its contractual share of those royalties, because the grant whose terms survive includes the author-to-publisher grant, not only the licences downstream. Termination does not hand you the whole royalty on the existing catalogue. It hands you the right to say who makes the next thing, which is where the new licence is negotiated.

Work made for hire ends most claims before they start

Section 203 excludes works made for hire, and that exclusion defeats more prospective terminations than every deadline combined. Under § 101 a work is made for hire if prepared by an employee within the scope of employment, or if specially ordered or commissioned for use in one of nine listed categories — a contribution to a collective work, a part of a motion picture, a translation, a supplementary work, a compilation, an instructional text among them — and the parties expressly agreed in a signed written instrument that it would be one.

The real fight is almost never about the statute but about whether a contribution qualifies. A staff writer's output usually does; a freelance illustration commissioned by email usually does not, because there is no signed instrument and an illustration is not automatically within the nine categories. Many contracts recite "work made for hire" and add an assignment as a fallback — and that fallback is a grant by the author, terminable under § 203 even though the recital is not. Which limb the work sits on is the who owns the work analysis, done thirty-five years late.

The gap between serving and taking effect

Serving the notice is not a neutral act: § 203(b)(2) vests the future reverting rights on the date of service. From that moment there is something to trade, and § 203(b)(4) controls who may trade it. A further grant of any right covered by the terminated grant is valid only if made after the effective date — except that an agreement for a further grant may be made with the original grantee or its successor once the notice has been served.

That exception is the commercial story of termination. For the two to ten years between service and the effective date, the incumbent publisher, label or studio is the only counterparty who can lawfully sign a new deal for the rights coming back. Everyone else waits. It is why so many terminations end in a renegotiated assignment with the same company, and why the notice is often better leverage than exit. Under § 203(b)(3) that renegotiation needs the same proportion of owners as the termination did.

What this is worth planning for

Termination is not a remedy for a bad contract in the year you sign it, and does nothing about the decades in between. It is a scheduled, unwaivable opportunity to reprice a work whose value nobody could have known at the outset — the imbalance the 1976 Act addressed when it replaced the old renewal reversion.

The practical consequence for anyone holding old grants is small and dull. Record the execution date of every assignment and licence you have signed, and the publication date where publication rights went across, and diarise year 25. Whether the right is worth exercising is a commercial judgment for later. Whether it still exists is decided by dates already set — and the deadline nobody notices missing is the recordation.