Copyright Compendium

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2310.3 (C) (1) Terminating a Grant That Conveyed the Right of Publication

 

2310.3 (C) (1) Terminating a Grant That Conveyed the Right of Publication

 

The Copyright Act defines publication as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 101. Offering to distribute copies or phonorecords to a group of persons for the purpose of further distribution, public performance, or public display also constitutes publication under the law. Id.

 

If the author conveyed the right to publish his or her work, then the beginning and ending of the termination period may be based on the month, day, and year that the grant was executed, or in the alternative, it may be based on the month, day, and year that the work was published. See 17 U.S.C. § 203 (A) (3). Specifically, the termination period for a grant that conveyed the right of publication begins either thirty-five years after the date that the work was published under the grant, or forty years after the date that the grant was executed (whichever is earlier). See id.

 

The legislative history states that “[t]his alternative method of computation is intended to cover cases where years elapse between the signing of a publication contract and the eventual publication of the work.” H.R. REP. NO. 94-1476, at 126 (1976), reprinted in 1976 U.S.C.C.A.N 5659, 5742; S. REP. NO. 94-473, at 110 (1975). It also states that “this principle should apply to any publication contract, and not just to contracts involving first publication … .” H.R. REP. NO. 89-2237, at 122 (1966); H.R. REP. NO. 90-83, at 93 (1967); but see Baldwin v. EMI Feist Catalog, 805 F.3d 18, 33 (2d Cir. 2015) (concluding that “the publication of a work is a one-time event” for purposes of § 203 (A) (3)).

 

In other words, if the grant conveyed the right to publish the work and if the work was published within five years after the grant was executed, then the beginning of the termination period is based on the date of publication under that grant. By contrast, if the work was published more than five years after the grant was executed or if the work was never published under the grant, then the beginning of the termination period is based on the date of execution.

 

Examples:

 

• On March 10, 1980, the author sent his publisher an outline for an unpublished novel titled, The Revered and the Reviled. On April 10, 1980 the author and the publisher executed a book publication contract. The author completed the novel several years later, and the publisher eventually published the work on August 23, 1987.

 

For purposes of § 203 (A) (3), the contract conveyed the right of publication, because it gave the publisher the right to distribute copies of this work to the public. Because the novel was published more than five years after the author executed the contract, the beginning of the termination period is based on the date of execution, rather than the date of publication under the grant. Specifically, the five-year termination period begins on April 10, 2020 (forty years from the execution of the contract), rather than April 10, 2015 (thirty-five years from the execution of the contract) or August 23, 2022 (thirty-five years from the date that the work was published under the grant). The termination period ends on April 10, 2025. If the author decides to make the termination effective on January 1, 2024, the notice may be served as early as January 1, 2014, and it must be served no later than January 1, 2022. The notice must be recorded with the U.S. Copyright Office, and the date of recordation assigned to the notice must be no later than December 31, 2023. See S. REP. NO. 94-473, at 110 (1975). (For information concerning the requirements for establishing a date of recordation, see Section 2310.10.)

 

• A novel titled The Saddest Boy in the World was first published in hardback form on December 1, 1986. On September 2, 1987 the author executed a contract to publish the novel in audiobook form. The publisher eventually published the audiobook on January 3, 1988.

 

For purposes of § 203 (A) (3), the audiobook contract conveyed the right to publish this work, because it gave the publisher the right to distribute copies of this work to the public in audio form. Because the audiobook was published within five years after the grant was executed, the five-year termination period begins on January 3, 2023 (thirty-five years from the date that the audiobook was published), rather than December 1, 2021 (thirty-five years from the date that the work was published in hardback form), or September 2, 2027 (forty years from the execution of the audiobook contract). The termination period ends on January 3, 2028.

 

If the author decides to make the termination effective on January 3, 2023 (which is the earliest possible date), the notice may be served as early as January 3, 2013 and it must be served no later than January 3, 2026. The notice must be recorded with the U.S. Copyright Office, and the date of recordation assigned to the notice must be no later than January 2, 2023. See S. REP. NO. 94-473, at 110 (1975).

 

If the grant conveyed the right of publication, the following chart may be useful in determining whether the beginning of the termination period should be based on the date that the grant was executed or the date that the work was published under the grant:

 

1. Identify the month, day, and year that the grant was executed.
2. Identify the month, day, and year that the work was published under the grant.
3. Add forty years to the date of execution identified in line 1.
4. Add thirty-five years to the date of publication identified in line 2.

 

Is the date identified in line 3 earlier than the date identified in line 4? If so, the beginning and ending of the termination period should be calculated using the date that the grant was executed.

 

Is the date identified in line 4 earlier than the date identified in line 3? If so, the beginning and ending of the termination period should be calculated using the date that the work was published under the grant.

 

The Office has developed a set of tables that may be useful in identifying the beginning and ending of the termination period for a grant that conveyed the right of publication. These tables also may be useful in selecting an effective date of termination and for calculating the relevant deadlines for serving a notice of termination on the grantee and for recording the notice with the Office.

 

• Use this table if the grant conveyed the right of publication and if the termination period is based on the date that the grant was executed.

 

• Use this table if the grant conveyed the right of publication and if the termination period is based on the date that the work was published under the grant.

 

NOTE: The beginning and the end of the termination period are not based on the beginning or end of the calendar year, unless the date of execution or the date of publication happens to fall on January 1st or December 31st.