Designers and creators have numerous copyrights under their umbrella due to the nature of their job. The situation is marginally different for creators who work as freelancers because the copyrights of those creative works are transferred to the entity that hired the services.
A drawback often spotted in this field is that the creators are not aware of the value of their work. They often under-negotiate for their rights during the sale or licensing of their work, ranging from simple digital art to songs, large-scale artwork, photography, novels and even software codes.
This blog will focus on copyright termination and how you can recover rights under the said termination as a creator.
What is Copyright Termination?
The Copyright Act of 1976 was enacted to recognise and grant the creators new rights for their work through copyright transfer. In the aforementioned Act, artists and creators engaged in long-term contracts with companies or individuals were entitled to “copyright termination”. Under this right, artists and creators whose work was made after 1978 can terminate the transfer of rights they had given to any person or company within the jurisdiction of the U.S. However it is not an absolute rule because there are exceptions to it as well.
As soon as the creator transfers the rights to the client, a 35-year clock automatically starts from that point after which copyright termination will take place i.e., the rights will be reverted to the creator after the timer ends.
The Process: How Creators Can Recover Rights Under Copyright Termination?
The termination process requires a proper notice, called the Notice of Copyright Termination, to be sent at the right time. The law stipulates that parties should be informed of the reversion of their rights at least 2 years before the termination occurs.
There are a number of ways to calculate the termination date – if you require more information in this regard, you can contact a copyright attorney.
Step 1: Identifying the “grant of rights” for your Copyright
The first step as an author or creator (or their heirs) is to locate the exact “grant of rights” which permitted the other party to use the original work in the U.S. The grant could be in the form of a design agreement, music publishing agreement, or any other written contract that transferred the rights to another party for using, publishing, reproducing, or distributing the copyrighted work.
Step 2: Confirming that the rights are eligible to be terminated
The second step in the process is to check if the rights being pursued are eligible to be terminated or not. Bear in mind that according to section 203 of the Act, the protection applies to all grants signed by the author on or after January 1, 1978, regardless of the fact that the registration of the copyright was acquired before or after the aforementioned date.
There are conditions for terminating the rights. If the work has only one creator, then they can terminate the grant on their own. However, if there are multiple creators, then the rights have to be terminated by the majority of those creators. If the rights are being revoked by the creator’s heirs, they can be terminated by a single heir, or the majority of the heirs if there are two or more of them. Rights can also be terminated by the author’s executor or trustee in case the deceased creator has no heirs.
This can be understood by a simple example. If a novel has three authors, then the rights can be terminated if two of the three authors agree to sign the Notice of Termination.
Step 3: Re-confirming the copyright dates
The creators should confirm and re-confirm the copyright dates so that the process is carried out within the termination window. For the ease of copyright holders, the Copyright Office offers several charts to help identify the correct dates.
Step 4: Filing the Notice of Copyright Termination
As the title suggests, the final step is to file the notice of termination with the Copyright Office. Ensure that you have read the cover sheet before proceeding with the notice.
When is the Rights Reversion not available?
There is no doubt about the fact that the copyright reversion process is a powerful tool and shield in the hands of the authors, however, there are certain limitations to it. In certain circumstances, the termination right is not available to the author.
One of those situations is when the work is created for work-for-hire. If you have authored something during your job, during company hours, and by using the apparatus or resources provided by the company, such kind of work would most likely fall under ‘work-for-hire’. Here, the employer is automatically termed as the ‘author’ of the work, and not the original creator/employee.
The rights can also be not terminated if the situation involves derivative works. If you had transferred rights to someone to make ‘derivative work’ from your creation, then you cannot stop that party from using the derivative work even after their rights to the original creation are terminated.
This can be understood from the example of a digital artist who has made an animation based on a character’s still portrait/picture. The subsequent animation created by the artist would be considered as the derivative work of the original portrait and so the rights to the former will be vested with that digital artist.
Keep in mind the time frame for Copyright Termination Notices
One last thing which you must keep in mind is to keep in view the termination window for the notice. The timeframe as per the Copyright Act requires you to send it at least two years but not more than ten years before the termination date. Failing to abide by the deadlines would nullify the right and you cannot terminate the agreement anymore.
Final Word
The termination process can be a daunting task due to the complexities involved in it. However, by hiring professional services, your burden will be considerably eased from your shoulders. Book a free consultation today with Drishti Law to learn how our experienced principal attorney can guide you in your copyright matters.
Sahil Malhotra
Sahil Malhotra is an Intellectual Property Attorney, who founded Drishti (“vision”) law because of his vision in protecting dreams and ideas.
He provided individuals and small businesses with an opportunity to enhance their IP’s value by helping them register trademarks and successfully argue against office actions. In addition to his training and experience, he has been deeply involved in the multifaceted IP portfolio at UIC and continues to be associated with IP organizations and conferences.
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