The Copyright Office has issued a formal comment request on the question of whether and how the Copyright Act provides a termination right to authors when a grant was made prior to 1978 and the work was created on or after January 1, 1978. As many of you may be aware, the Copyright Act allows authors and their heirs the right to terminate non-exclusive and exclusive licenses and transfers. The provisions do not apply to works made for hire or grants that are made via wills.

• Section 304 (c) governs works in their first term or renewal term as of January 1, 1978, if the grant was made before January 1, 1978. Termination may be exercised during a five-year period beginning fifty-six years from the date copyright was secured.

• Section 304(d) controls works in their first term or renewal term on January 1, 1978, if the termination right in 304(c) expired and was not exercised on or before October 27, 1998. Termination may be exercised during a five-year period beginning 75 years from the date copyright was secured.

• Section 203 governs grants executed on or after January 1, 1978, regardless of whether the copyright was secured prior to or after 1978. Termination may be exercised during a five year period thirty-five years from the date of publication of the work under the grant, or forty years from the date of execution of the grant, whichever is earlier. Section 203 terminations may be exercised on January 1, 2013, provided that notice was served at least two years in advance.

The Copyright Office provided two examples of the situation:

Example 1: A composer signed an agreement with a music publisher in 1977 transferring the copyrights to future musical compositions pursuant to a negotiated fee schedule. She created numerous compositions under the agreement between 1978 and 1983, some of which were subsequently published by the publisher transferee. Several of these achieved immediate popular success and have been economically viable ever since. The original contract has not been amended or superseded.

Example 2: A writer signed an agreement with a book publisher in 1977 to deliver a work of nonfiction. The work was completed and delivered on time in 1979 and was published in 1980. The book’s initial print run sold out slowly, but because the author’s subsequent works were critically acclaimed, it was released with an updated cover last year and is now a best seller. The rights remained with the publisher all along and the original royalty structure continues to apply.

The Office’s request also contained a footnote that may be sexy to copyright wonks:

If a document is submitted as a notice of termination after the statutory deadline has expired, the Office will offer to record the document as a ‘‘document pertaining to copyright’’ pursuant to § 201.4(c)(3), but the Office will not index the document as a notice of termination. Whether a document so recorded is sufficient in any instance to effect termination as a matter of law shall be determined by a court of competent jurisdiction.