Page 24 - Delaware Lawyer - Summer 2020

FEATURE
right, executed by the author on or af- ter January 1, 1978, otherwise than by will, is subject to termination.”
Right of Termination Raises Complex Questions
As noted earlier, the right of termi- nation applies only to the territory of the United States. It does not affect the current owner’s rights in any other country in the world. On its face, it is a simple right granted to authors or specific heirs of the author (mostly the surviving spouse and surviving chil- dren). The provisions establishing these rights are extremely complex in their execution—let alone susceptible to un- told interpretations. They raise dozens of questions as to what rights are be- ing terminated and what rights remain with the original transferee or succes- sor. Even a casual reading discloses that, though we call the process “termination of copyright,” it is not the copyright — but the years-earlier transfer of rights — that is being terminated.
As pre-1978 works/copyrights and post-1977 transfers are dealt with dif- ferently, for the earlier works, termi- nation can occur once 56 years have expired from the date the copyright was originally transferred; for the lat- er works, termination can occur once 35 years have expired from the date of transfer. Thus a 1965 work can be
terminated in 2021 at the earliest, but other conditions would make such a work revert to the authors or their heirs only in 2022. At some point in 2024, the right to terminate will have expired. [Warning: specific days and months apply to the calculation, not just year dates, and the deadlines are strict and strictly enforced.]
An anomaly presents itself because, while this hypothetical 1965 work is still susceptible to termination, it is now too late to terminate the copyright of works transferred in 1980, or even 1981. There is barely still timely to ter- minate the copyright of a work trans- ferred in 1982. It should also be noted that there is no second chance to ter- minate — it must be effectuated within a specific window, or never.
Further complicating the determi- nation of when a copyright might re- vert to the author or the author’s heirs is this: a work created and/or copy- righted before 1978 may still be the subject of Section 203 termination (the 35-year rule) if the assignment of the work first took place after 1977.
Terminations Require Detective Work
Terminations are effected simply by the mailing of a Notice of Termination to the original copyright owner and to its successor, with a copy submitted to
The term of copyright in the United States for works written/copyrighted before 1978
(for the most part) is 95 years from the date of copyright.
the United States Copyright Office for recordation. [The Copyright Office regulations dictate the rules that must be complied with in order to effectively terminate a transfer.] One of the most complicated aspects of exercising the termination right deals with the differ- ent windows within which the Notices of Termination can or must be served. With different deadlines, there are nu- merous dates that have to be calculated and then utilized in the termination process. Identifying these windows may require tedious, detailed, labor- intensive, and often costly, research. It takes creative lawyers or paralegals to do the detective work necessary to secure the data essential to execute ter- minations.
Here is a typical scenario: A song- writer/musician was part of a success- ful recording and performing group in the 1960s. He assumed that his sale to a music publisher of the songs he wrote for that act more than 56 years ago was a fait accompli. He believed that he had relinquished the worldwide copy- rights to those works. As a result, he had mostly forgotten all about them, although some remained significant earners. Thanks to Section 304(c) of the Copyright Act, he has been able to recapture the United States rights to all of those songs.
22 DELAWARE LAWYER SUMMER 2020