Page 23 - Delaware Lawyer - Summer 2020

Termination rights are permanent, absolute, and not transferable —
either during the author’s lifetime, or even by the author’s heirs prior to serving the actual formal Notice of Termination on the original copyright transferee
(and its successor, if applicable).
56 years from registration (pursuant to the predecessor law dating from 1909) to 75 years (now 95 years). Accompa- nying the change, the new law estab- lished the right to recapture the U.S. rights 35 years after the date of trans- fer of the rights in the work. On the theory that when older copyrights were transferred, the maximum term of pro- tection was limited to 56 years, Con- gress acted on the presumption that the author’s original transfer of rights was never intended to last more than 56 years. Thus, since 1978, the copy- right law includes a termination right both for pre-1978 works and post-1977 works. Thus, all authors are granted the same entitlement: to terminate a transfer and to recapture the rights they sold decades earlier. Just the tim- ing and the details for recapture differ.
Second, the Congress understood an underlying truth that applied equal- ly to both sets of works — those writ-
ten before 1978 and those written after 1977: that at the time of the original transfer of rights, the author’s negoti- ating leverage was likely non-existent or smaller than it might have been later in the author’s career.
Termination rights are permanent, absolute, and not transferable — either during the author’s lifetime, or even by the author’s heirs prior to serving the actual formal Notice of Termination on the original copyright transferee (and its successor, if applicable). These rights cannot be contracted away by the author or his/her likely heirs, and a provision in any contract purporting to be a waiver of these rights is unenforce- able. Specifically, the law states that “Termination of the grant may be ef- fective notwithstanding any agreement to the contrary, including an agree- ment to make a will, or to make any future grant.” (emphasis added). This provision has been interpreted to void
such purported transfers.
The two sections of the Copyright
Act that I am referring to are Section 304, which deals with works written/ copyrighted prior to 1978, and Sec- tion 203, which deals with transfers of rights executed after 1977.
Section 304(c) states, in part: “In the case of any copyright subsisting in either its first or renewal term on Janu- ary 1, 1978, other than a copyright in a work made for hire, the exclusive or nonexclusive grant of a transfer or li- cense of the renewal copyright or any right under it, executed before January 1, 1978, by any of the persons designat- ed by subsection (a)(1)(C) of this sec- tion, otherwise than by will, is subject to termination.”
Section 203 states in part: “In the case of any work other than a work made for hire, the exclusive or nonex- clusive grant of a transfer or license of copyright or of any right under a copy-
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