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You’ve written your first song, and now it’s time to share it with the world. It’s an exciting milestone! After negotiating a contract with a publisher, they’re ready to help get your music out there. You sign the contract, and it’s in their hands to do what they do best.
But what if you decide you no longer want to work with that publisher? Maybe your music is doing well, and you’re thinking about switching to self-publishing or a music administrator to increase your profits. Or perhaps you want to renegotiate your contract, or even work with a different publisher, to get better terms.
Whatever the reason, you want control of your copyright again to choose a new direction.
The issue is that you’ve given or trasnferred your copyright to the publisher – usually termed as granting rights or assigning rights in a contract. This is common practice, as it gives the publisher full, or exclusive, commercial control over your work, allowing them to maximize profit by licensing, distributing, and promoting your music across various platforms.
Can I get my copyright back?
The good news is, yes, you might be able to get your copyright back—and it’s explicitly built into copyright law. If we head over to Chapter 2 of the U.S. Copyright Act of 1976, you will find it addresses the issues of copyright ownership and transfer, but it also includes provisions for getting your copyright back – or, in the words of the Copyright Act, “the termination of licenses granted by the authors.”
NOTE: “Authors” will refer to the original creators and owners of the copyright, rather than using terms like composer or songwriter. “Termination” refers to the canceling of a grant of copyright to a publisher or another party.
Who can terminate a grant of copyright?
When it comes to terminating a copyright grant or assignment, several factors come into play, including the author’s status, whether there were multiple authors involved, and the specific termination provisions in place.
For a living author, they have the right to terminate their own grant. If multiple authors agreed to the grant after January 1, 1978, a majority of those authors can terminate it. However, for grants made before that date, any author can terminate their own share.
If the author is deceased, the majority of the author’s heirs can terminate the grant. If there are no heirs, the author’s executor, administrator, or personal representative can step in to do so. In cases where the grant was made by the author’s heirs, the surviving heirs have the authority to terminate it.
Who cannot terminate?
Work-for-hire agreements are not eligible for termination, as these are considered works created as part of employment or as a contractor for another party, with the understanding that the copyright will be transferred to the employer or person paying for the work.
When can I get my copyright back? Section 203(a)(3)
We’ll be looking at a very specific section of Chapter 2 – specifically Section 203 of the Copyright Act. Section 203 deals with the termination of grants, giving authors or their heirs the ability to reclaim their rights within a strict timeline.
Section 203(a)(3): “Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution 170 Copyright Law of the United States §203 Copyright Ownership and Transfer of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.”
So, what does this mean? This means that authors or their heirs have the right to cancel (or “terminate”) a deal with a publisher after a certain amount of time. This can happen during a 5-year window, which starts 35 years after the original agreement was made (the date when the grant was signed).
If the grant covers the right to publish the work, the 5-year window for termination can also start 35 years after the work was first published, or 40 years after the grant was signed—whichever comes first.
So, after waiting for either 35 years from the agreement or 35 years from publication (whichever happens first), you or your heirs can begin the process of ending the deal and getting your rights back.
Let’s say you granted your copyright to a publisher in 2020. The earliest date you can terminate is 2035 and the latest is 2040.
How do I terminate? – Section 203 (a)(4)
Now that you know when can you set or request a termination date, let’s go over how to terminate a grant of copyright.
Section 203(a)(4): “The termination shall be effected by serving an advance notice in writing, signed by the number and proportion of owners of termination interests required under clauses (1) and (2) of this subsection, or by their duly authorized agents, upon the grantee or the grantee’s successor in title.“
To terminate the grant, a written notice must be served in advance, signed by the required number of owners with termination rights. The notice can also be signed by their authorized agents, such as an attorney or another party you authorize who is familiar with the process.
Essentially, all owners with a stake in the work need to send a signed notice, but they have the option to appoint an authorized agent to handle the task.
Let’s read on…
Section 203(a)(4)(A): The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years before that date.
When the notice is sent, it needs to have the effective date of the termination. Clause 3 (mentioned above) sets a specific 5-year period during which a copyright owner (or their successors) can serve a notice of termination, which is typically 35 to 40 years after the original grant of the copyright (depending on whether it was a work-for-hire or individual grant). The “effective date of termination” must fall within this 5-year period, meaning that the termination will happen at a date during that time frame. The notice of termination must be served not less than 2 or more than 10 years before the effective termination date.
So, essentially, the five-year period provides a specific window of time for the termination to become effective, and the notice must be sent out with the right timing within a range of 2 to 10 years before the termination is to take effect. This ensures that the termination is properly planned and filed within the law’s rules.
Let’s say your termination period spans from 2035 to 2040, and you’re aiming to terminate at the earliest possible date in 2035. In that case, the earliest you can send your notice is 2025 (10 years before), while the latest you can send it is 2033 (2 years before the desired termination date).
Now, let’s consider if you choose 2038 as your termination date. The earliest date you can send your notice would be 2028 (10 years before), and the latest date would be 2036 (2 years before the termination).
Sending a notice
In addition to sending a notice to the publisher, you also need to send a notice to the Copyright Office.
Section 203(a)(4)(A) continued: “A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect.”
Section 203(a)(4)(B): “The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.“
When sending a copy of the notice to the Copyright Office, it will need to be accompanied by a Notice of Termination Cover Sheet.
There can be some limitations to terminating a copyright, but this will hopefully give you a better idea about the process.
Summary
Section 203 of the U.S. Copyright Act provides songwriters and authors with a valuable opportunity to regain control over their works after a period of time. After 35 years, or 40 years in some cases, you or your heirs may be able to terminate a contract with a publisher and reclaim your copyright. However, this process must be approached with careful timing and adherence to specific procedures, including serving written notice and recording it with the Copyright Office. While it may take decades before you can take advantage of this provision, it offers an important safeguard for creators who may want to renegotiate terms or explore different opportunities down the line.If this is something you’re considering, we recommend consulting with legal professionals for proper advice and guidance before terminating a copyright grant.
Steps to take:
- The Author, or majority of Authors, must decide or agree to terminate copyright.
- Figure out when set/request a terminate date between 35 and 40 years after the copyright grant.
- Write a notice to publisher requesting termination (signed by Authors).
- Submit notice to Copyright office with the accompanied Cover Sheet.