Were you writing and publishing in 1978 when Ken Follett came out with Eye of the Needle, Frederick Forsyth wrote Day of the Jackal, and Scott Turow published One L?
If you are of a certain age, then you are in fine company. You are in that period of life when you can begin to terminate grants of copyright in your work (if your rights have not already reverted).
In 1976, Congress decided that authors needed protection against the unequal bargaining power of publishing houses. Because it is impossible to determine a work’s value until after it is marketed, writers were offered less than what their work was ultimately worth. Congress wanted to provide writers with a second opportunity to market their work after the original transfer of copyright.
Congress passed a law allowing a grant of copyright to be terminated after 35 years (Section 203 of the Copyright Act). That seems long, but for Boomers whose average age was then 23, it may turn out to be just right. Young writers (or even old writers) who granted their rights away in publishing contracts starting in the late-70’s, can now get them back.
As Boomers move into retirement, 2013 marks the beginning of The Magical Years of Copyright Reversion when the toil of youth can be recovered for use in this exciting and profitable new digital age.
Terminating a copyright grant is not difficult, but it is specific. Here’s how it’s done:
The Notice of Termination
A Notice of Termination must be written and sent to the holder of the grant (the “grantee”). This is the information that must be in the Notice:
· A statement that termination is made under section 203;
· The name of each grantee whose rights are being terminated and each address at which service of notice is being made;
· The date the grant was originally signed ;
· The date of publication of the work;
· The title of the work;
· The name of the author or authors who signed the grant;
· The original copyright registration number, if possible;
· A brief statement describing the grant (i.e., “publishing contract dated January 1, 1978”; and
· The effective date of termination.
The notice must be signed by the author or someone authorized to sign on his behalf.
Timing the Termination
There is a five-year period for termination. You must give the grantee at least two years’ notice that you are going to terminate rights and you can’t give more than ten years’ notice. If a publishing contract granted rights on January 1, 1978, for instance, the termination right begins in 2013 and expires in 2018. Notice could have been given as early as 2003. The latest the notice can be given is January 1, 2016 to allow for the two years.
Serving the Notice of Termination
Notice must be “served” on each person/company whose rights are being terminated. That means notice has to go by hand delivery or first class mail to the last known address of the person to whom the rights were originally granted and to each person who may have received rights from the original grantee. If a publishing company has merged, the new company must be served. If the author determines that rights were granted to anyone else, they must be served. For instance, if movie rights were optioned by the publisher then whoever bought the movie rights needs to get a termination notice.
Grants of Copyright that Cannot be Terminated
Copyrights in “works for hire” cannot be terminated. If you were hired to write a contribution to a collective work, for example, you will not be able to terminate that grant. Also, if you authored a piece for an employer, you will not be able to regain control of that copyright.
Filing the Notice and Paying the Fee
A signed copy of the termination notice must be filed with the Copyright Office with a statement of how service was made and the filing fee. The fee is currently $105 for one title. Additional titles are $30 for each group of ten or fewer. There is no option for online filing.
What If You Don’t Do It?
If you do not terminate the grant of rights as outlined in section 203, you will lose your right to do it.
Regaining your copyrights is an important part of estate planning. Your termination rights, like your copyrights, can be left to your heirs.
The rules issued by the Copyright Office for Notices of Termination can be found here: http://1.usa.gov/18uL1P2.
Visit Kathryn Goldman’s blog to download her free video on the Key Legal Points in Amazon’s KDP Program so you can self-publish your work with confidence.
About the Author
Kathryn Goldman has practiced intellectual property law for over 25 years working with creative individuals and businesses to protect their rights. She represents writers, artists and film makers. Kathryn served as the Chair of the Intellectual Property Section of the Maryland State Bar Association 2011-2012. She has been recognized as a Maryland Super Lawyer for 2013 and 2012; has been included in the Bar Register of Preeminent Women Lawyers since its inaugural edition; and is rated AV by Martindale.
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