The content creators include writers, artists, and others. The termination provisions are codified in 17 USC §§ 203, 304(c), and 304(d). The specifics make it a more complicated analysis with the applicable provision depending on a number of factors, including the date the grant was made and when copyright was originally established.

The U.S. government, in an antiquated show of action, amended the Copyright Act in 1976 to protect authors from disadvantageous transfers and unequal bargaining positions resulting from the inherent impossibility of determining a work’s value until later use. Today, the Copyright Act of 1976 allows an author or originator of a copyright may terminate any grant, license, or assignment made on or after January 1, 1978, 35 years after the date of the transfer. 17 U.S.C. § 203 includes any exclusive or non-exclusive grant of a transfer or license of copyright or any right under that copyright, including the right to copy, sell, distribute, digitize or perform the work. Presently, though, the transfer ability under § 203 does not apply to derivative rights or derivative works already created, rights to exploit material outside the United States, or grants covered by non-U.S. law.

The US Court of Appeals for the Second Circuit affirmed the dismissal of a lawsuit that sought a declaratory judgment on the basis that a notice of termination of copyright assignment under 17 U.S.C. § 203 did not validly terminate a 1983 grant of rights in the copyright. Valentina M. Peretti Acuti, et al. v. Authentic Brands Group, LLC, et al., Case No. 21-2174 (2d Cir. May 4, 2022) (Livingston, C.J.; Lynch, Lohier, JJ.)Hugo Peretti co-wrote “Can’t Help Falling in Love,” a ballad popularized by Elvis Presley in 1961, and registered the composition with the US Copyright Office the same year.

In 2004, Coots’ heirs began attempting to terminate EMI’s rights to the Song. In 2006, Coots’ heirs and EMI agreed that in light of the 1981 Agreement, EMI’s rights in the Song would be terminated under 17 U.S.C. §203. Under 17 U.S.C. §203, an author or his statutory heirs may terminate grants executed by the author on or after January 1, 1978.

See Woods v. Resnick, 725 F.Supp.2d 809 (W.D. Wis. 2010) (a limited liability company with two equal members, the court found the company does not control either owner; thus, “there is no basis for finding Woods was an employee under the control” of the company, id. at 824 and thus no work made for hire circumstance existed); JustMed, Inc. v. Byce 600 F.3d 1118 (9th Cir. 2010) (holding Byce’s work was a work made for hire; he was a shareholder and director of the corporation JustMed, Inc.; and the court concluded he was an employee of the corporation when he worked on the source code at issue, although Byce was not an employee for tax purposes).Why is an assignment or license, as opposed to securing rights as the author initially, different? Because the Copyright Act allows authors and the authors’ heirs to terminate assignments and licenses after a statutory period of time. 17 U.S.C. Section 203(a)(3) (grant issued by the author on or after Jan. 1, 1978, 35 years after the grant), 304(c)(3) (grant issued by author or heirs before Jan. 1, 1978, 56 years from the date copyright was originally secured, or beginning on Jan. 1, 1978, whichever is later). See Horror, Inc. v. Miller, 335 F.Supp.3d (D. Conn. 2018), aff’d 15 F.4th 232 (2nd Cir. 2021) (writer of a popular horror film (“Friday the 13th”) properly terminated assignment of rights, after having been determined to be an independent contractor and not an employee at the time he wrote the screenplay).

“In the case of a grant executed by two or more authors of a joint work,” the Copyright Act provides that “termination of the grant may be effected by a majority of the authors who executed it.” 17 U.S.C. § 203(a)(1). Willis was only a joint author of the compositions at issue, and had separately transferred his copyright interests.

nt “readable by man or machine,” copyright notice is unnecessary.Note that I do generally recommend that people put a copyright notice on their work simply because it makes it easier to win a case for copyright infringement.Surprising Fact: You Can Recapture the Copyright to Songs You’ve WrittenI live and practice in Nashville, where music is a big thing. Sometimes songwriters and recording artists (and occasionally their lawyers) don’t know that if the copyright in their song or master has been assigned (say, to a publisher or a record label), if appropriate and timely action is taken, that copyright can be recaptured (technically the assignment can be terminated). The “appropriate action” is a bit difficult to maneuver. There are generally three different situations:The work was created and first transferred prior to 1978. 17 U.S.C. § 304(c) controls and after a 56-year waiting period, the U.S. copyright can revert.The work was created prior to 1978 but first transferred after 1977. 17 U.S.C. § 203(a) “may” control and after a 35-year waiting period, the U.S. copyright can revert.The work was first transferred after 1977. 17 U.S.C. § 203(a) controls and after a 35-year waiting period, the U.S. copyright can revert.You recapture the U.S. copyright by giving notice no more than 10 years and no less than 2 years before a date that is either subject to the 56-year or 35-year measurement period and recording the notice with the copyright office. When you do this properly, timely and effectively with a music catalog, the grantee has no recourse but to return the U.S copyright(s) to you.For example, songwriter Even Stevens, who wrote songs such as “I Love a Rainy Night”, “When You Are in Love with A Beautiful Woman,” and many others, recaptured the U.S. copyrights in his music catalog and was able to sell it to another publisher for a number that had two commas in it. In fact, there are lawyers here in Nashville who work almost exclusively helping songwriters and recording artists recaptu

Usually, the parties will enter into an independent contractor agreement that governs the relationship, including the ownership of the materials created by the contractor in providing the requested services.Under the United States Copyright Act of 1976, 17 U.S.C. § 101 et seq. (“the Act”), where the agreement is silent as to ownership of such created materials (or no such written agreement exists), ownership will vest in the contractor and not transfer to the employer. 17 U.S.C. § 203. All is not lost in such situations, as controlling case law makes clear that the employer would still be able to use the materials under a non-exclusive implied license, and that the license would be irrevocable since it was supported by consideration. Asset Marketing Systems, Inc. v. Gagnon, 542 F.3d 748, 754-757 (9th Cir. 2008).

The grants involved some of Charles’ greatest hits, including “I Got a Woman” and “A Fool for You.” In March 2012, the Foundation filed suit against the heirs in California federal court seeking, among other things, declaratory judgment that the notices are invalid because they are “works for hire” pursuant to the Charles contracts and therefore excepted from 17 U.S.C. §§ 203 & 304(c), under which the notices were filed; an injunction preventing the heirs from claiming they are or will become rightful owners of copyrights for the works at issue; and a judicial determination as to which of several overlapping termination dates for various songs were effective. On the motion of the heirs, the lower court dismissed the action for lack of standing, holding, among other things, that the Foundation fell outside the “zone of interests” of the termination statutes, which only expressly references heirs and grantees.

complexity, awkwardness, and unfairness of the renewal provision” that generally resulted from creators being unable to exploit their works themselves. For example, at creation, assignees like music publishers customarily acquired rights for the entire, existing 56 year term, making it all but impossible for authors to recapture the US copyrights in the renewal term.Under the then new law, creators were given an opportunity to recapture their US copyright after 56 years for works transferred prior to 1978 and, generally, after 35 years for works transferred on or after January 1, 1978. These recapture rights and the dates within which such rights must be exercised are set forth in Sections 203 (for post January 1, 1978 transfers) and 304 (for pre January 1, 1978 transfers) of Title 17 USC, the Copyright Law of the United States.The Derivative Works Exception Notably, the new termination provisions provided a critical “exception” to recapture, the so-called Derivative Works Exception (17 USC §203 (3)(b)(1) and §304 (c)(5)(A)). In the event of recapture, a derivative work—or a work based on a work, or a recording of a song or a film based on a book, for example—licensed under the terminated, original grant may continue to be utilized under the terms of the original agreement, even after its termination.The Derivative Works Exception was first construed in Mills Music, Inc. v. Snyder, 469 US 153, 172–73 (1985), a case involving entitlement to post-termination royalties. There, a songwriter assigned his copyright in a song to a publisher, who, in turn, issued voluntary mechanical licenses to record companies to create derivative works – recordings of the song.Years later, when the songwriter’s heirs terminated the publisher’s original grant of the US copyright, the heirs claimed they were entitled to royalties generated by the record companies from the continuing sale of new copies of the recordings after termination. However, the Supreme Court held that the original publisher – not the so