2310.3 (C) (3) Gap Grants
What if the author signed a written agreement or entered into an oral agreement before January 1, 1978 involving a work that was created on or after that date? These types of grants are known as “gap grants.”
As discussed above, Section 203 applies to grants executed by the author on or after January 1, 1978. The Office has concluded that gap grants may be terminated under this provision, “because as a matter of copyright law, a transfer that predates the existence of the copyrighted work cannot be effective (and therefore cannot be ‘executed’) until the work of authorship (and the copyright) come into existence.” Gap in Termination Provisions, 76 Fed. Reg. 32,316, 32,316 (June 6, 2011).
In cases where the author agreed, prior to January 1, 1978, to transfer or license the copyright in a work that was created on or after January 1, 1978, the Office may record a notice of termination under Section 203 if the notice states that the date of execution for the grant is the date that the work was created. 37 C.F.R. § 201.10 (F) (5).