Terminating a Copyright Transfer
Copyrights owners will often transfer their ownership to someone else in change of cash or other considerations. Like all copyright law, the law governing transfers has evolved over the years. Not only has the duration of transfers changed, but content creators can terminate their transfers to regain control of their copyrights.
Transfers can cover all rights surrounding a work or just one or more of them. Depending on the copyrighted work, some rights may be more desirable than others. Different rights can include derivative works like sequels, performance rights such as a play, or reproduction rights for a painting. There are quite a few options so sometimes a copyright owner will simply elect to conduct a full transfer.
A transfer should not be confused with a license. Licenses can be exclusionary or non-exclusionary. They can also have a limited term. Whenever a license is given, the owner of the copyrighted work still retains all ownership in the work. A transfer fully vest the rights transferred to another party. This new owner can exercise his or her rights in the copyrighted work or license others to do so. Barring a termination, a transfer is a permanent vesting of rights.
Acting on the concerns of content creators who received a raw deal in a copyright transfer, Congress enacted a method for terminating a copyright transfer. Certain conditions must be met. First, the work cannot have been a work for hire. Secondly, the transfer must have been executed on or after January 1, 1978. Thirdly, termination can only occur 35-40 years from the date of the execution of the transfer.
A successful transfer requires advance notice in writing from the original owner to the new one. This notice must be served between two to ten years before the desired termination date. A copy of the notice must be sent to the United States Copyright Office. Termination is effective immediately when the desired date arrives, but the licensed party will start retain rights to any derivative works it had created.
If the content creator is dead, his or her termination interest is vested in the surviving spouse. However if children or grandchildren exist the spouse retains half of the interest and the other half is distributed equally amongst the children. If any children have passed away, their interest is divided amongst that child’s grandchildren, if any. If the spouse has passed away, all interest is shared this way amongst the children and grandchildren. A majority of interest is required to request a transfer. If the content creator was a loner, or no one has survived, the termination interest is vested in a trustee, executor, or administrator.
The termination process sounds simple in theory but in practice it is very easy to let the termination window slip by. Additionally, transfers and termination have statutory requirements for format and other small details. When a deceased content creator’s family is involved events grow even more complicated. For all these reasons it is vital to retain a copyright attorney both before and after a copyright transfer has occurred. If you have any copyright issues or needs, you can contact Stone Law at 732-444-6303 or leave us a message on our website.