I’ve had several occasions now where I talk to an author, and they mention how frustrating it is that this publisher has the rights to their book and, for one reason or another, the publisher refused to give the rights back when the author asked for it. I promptly ask the first question that comes to my mind: “So, do you think you’ll exercise your termination right?” The author either gives me a blank look, or proceeds to tell me how their contract doesn’t give them grounds to terminate. I have yet to encounter an author that knows about this important and valuable tool, which is why I’ve decided to write this article.
The termination right is not a contract right. It is a right that is given to authors under the Copyright Act, and the Act very specifically states that this right cannot be sold, licensed, given away, or contracted out of. It belongs to you and you alone (though it does get passed to your statutory heirs after you die). So what is the termination right? Basically it’s the right to get your copyright back thirty-five years after you’ve given it away (i.e. the right to terminate your grant or license).
Why would Congress do this? Unlike many other goods, a copyrightable work’s value is unknown at the time it’s created, especially if it’s the author’s first work. Congress wanted to give authors a second chance to profit from their work, after its value had been ascertained by the marketplace. The previous Copyright Act tried to do this by creating two copyright terms (originally, in 1909, the first term was 14 years, and you had to renew your copyright to get an additional 14 years of protection). However, the Supreme Court ruled early on that an author could give away rights to both terms at once, which pretty much destroyed the whole “second chance” concept. This was a large factor in Congress’ decision to create an entirely new Copyright Act, and they came up with the termination right in order to give authors a second chance that couldn’t be taken away from them.
So how does the termination right work? First, you have to give notice to the current rights holder (with a cc to the Copyright Office), that you intend to exercise your termination right and get your copyright back. You have to give the notice two to ten years before the termination becomes effective, so you have an eight-year window to get it all done (actually, that window is even larger, since you also have a five-year window in which to actually exercise the termination). The Copyright Office has a lot of requirements for what must be included in the notice; if you want all the gory details you can look here (http://www.copyright.gov/docs/201-10-final.pdf) or you can talk to an attorney and/or have them draft it for you. Actually, I would talk to an attorney anyway, because while thirty-five years from the date the grant was made is the rule of thumb for when you can first exercise the termination, in some cases the timing might be different (and if you made the grant before 1978 and have already missed your thirty-five year window, there’s a second window you can take advantage of).
Once you’ve given notice, the ball is in the publisher’s court. They might spew and sputter about it, but there’s usually not much they can do; the right has fairly consistently been upheld in court (though there have been exceptions, which is another good reason to talk to an attorney and make sure those exceptions don’t apply to you). They may also come to you and offer to negotiate a new contract that will let them hang on to the copyright. Just remember two things: 1) this is a completely new contract, not a renewal of the old one, so all terms are up for negotiation; and 2) the termination right can only be exercised once, so if you make a new contract that you regret later, you’re stuck with it.
If you have questions, or if you want talk to an attorney about exercising your termination right, please send me an email at kaway@kawaylaw.com.