Page 22 - Delaware Lawyer - Summer 2020

FEATURE
Peter M.Thall
Terminating Copyrights:
Areviewof authors’ and heirs’ rights in the 1976 Copyright Act
Whetheryouareageneralpracticeattorneyoratrustsandestatespecialist, you need to know that your creative clients can actually recapture their intellectual property even though they may have sold it decades ago.
20 DELAWARE LAWYER SUMMER 2020
Two sections of the United States Copyright Act1 permit — even en- courage — this to happen. The as- pect of copyright law that I am referring to is the termination right. This right, embodied in the 1976 Copyright Act, entitles an author (or specified heirs) to recapture the United States rights to their copyrighted works even if those copyrights had previously been trans- ferred to another entity by the author years earlier. The termination right ap- plies regardless of whether the author was paid huge sums of money to transfer the copyrights decades earlier; whether those monies were recoupable; whether they were recouped; whether the buyer did a horrible or spectacular job exploit- ing the rights it acquired; whether the
post-sale exploitation yielded significant or very few, or no, royalties to the au- thor or the author’s heirs.
Why did the Congress pass such a custom-wrenching and, one might ar- gue, constitutionally suspect law? The reasons are two-fold.
First, in 1976, a new copyright act was adopted which extended the dura- tion of the copyright term of protec- tion. The “new” law took effect on January 1, 1978, so we traditionally refer to it as the “1978 law.” For copy- rights created on or after January 1, 1978, the term of copyright protection was now determined by the life of the author plus 50 years (now 70 years); for copyrights created before 1978, the term was extended from a maximum of
Recapturing the Family’s Literary Jewels