Which Grants May Be Terminated?
“The exclusive or nonexclusive grant of a transfer or a license of copyright or of any right under a copyright, executed by an author on or after January 1, 1978, otherwise than by will” -- 17 U.S.C. § 203(a)
In order for a grant to be terminable, the following conditions must be met:
- A transfer, license, or any copyright interest was granted
- By a creator,
- Including exclusive or nonexclusive rights.
- The grant was made on or after January 1, 1978.
- The grant was not made by a will.
The following grants may NOT be terminated:
Termination rights remain with the creator, even if the contract purports to give them away or makes the creator promise not to exercise them. In other words, even if your contract claims to be “perpetual” and/or “irrevocable,” you can still terminate the grant. [link to some examples of such contracts]
“Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.” -- 17 U.S.C. § 203(a)(5)
- Example: During a legal dispute over the right to renew the copyright (under an earlier version of the Copyright Act) in the Captain America character and comics, creator Joseph H. Simon signed an agreement stating that his work “was done as an employee for hire.” In a subsequent lawsuit over the right to terminate the copyright assignment, the court in Marvel Characters, Inc. v. Simon held that an “agreement made subsequent to a work’s creation which retroactively deems it a ‘work for hire’” does not negate the author’s termination rights if the work was not in fact a work made for hire.
You can always agree with your co-contractant to end the grant of rights before 35 years have passed. (For example, “out of print” clauses are a kind of agreed-upon termination.) BUT, be aware that if you agree to terminate a contract, and then enter into a new contract with the same co-contractant, the 35-year statutory termination time clock starts all over again with the new contract; you may not be able to tack on the, say, fifteen years elapsed under the old contract to twenty years under the new.