Thursday, January 11, 2007

Transferring Your Copyright, Getting it Back Part Two

Better late than never I always say ...

So, I believe in hyping up a topic to generate interest but I really had NO intention of leaving you, my dearest subscribers, hanging for so long between blog posts. Especially because I received such positive feedback regarding Part One of this two part post. But alas, the holidays took their toll and I took a much-needed vacation from all things publishing. But now I'm back and better for it! And I am thrilled to announce the official release of my latest book, Copyright Companion for Writers.

So, enjoy this Part Two of Transferring Your Copyright & Getting It Back! (An excerpt from Copyright Companion for Writers by Tonya M. Evans-Walls, Esq. now available at LiteraryLawGuide.com, www.Amazon.com, and your local bookstore)

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Copyright 2007 Tonya M. Evans-Walls, Esq. (). Limited license granted to copy and distribute this post provided such copying and distributing is of the entire post, including copyright and contact information.
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Did you know that regardless of the terms of your transfer document (e.g., a publishing agreement or a license), you have the right to reclaim your copyright? Discussion about this little-known legal right for authors is just starting to emerge in the publishing industry. Publishers, for instance, may not want authors to know that the "life of copyright" term in most publishing agreements can be rendered null and void if a statutory termination is properly effected. But because different versions of the copyright law apply to different works, depending on when they were created, registered, and transferred, and depending on who transferred the rights, there are different rules for terminating transfers of those works to third parties. I will examine only those transfers made on or after January 1, 1978 (not pre-1978 transfers that have slightly different rules); but if you have a specific question regarding a potential transfer termination, please contact an intellectual property attorney who is well versed in literary law and transfer termination issues. This is tough stuff even for lawyers so err on the side of caution and consult with an expert to address your specific concerns.

Under the Copyright Act, a federal law granting creators certain rights in their creations, creators of creative works transferred (to a publisher, for example) on or after January 1, 1978, can terminate the transfer and get their copyright back by operation of law. This is true regardless of what the publishing agreement states. If the author is deceased, then his or her heirs generally have the right to do so. If two or more authors executed a grant of a joint work, a majority of the authors who executed it (or their heirs) may terminate it. This single, extremely valuable section of the Copyright Act, allowing for the reclaiming of rights by terminating transfers, clearly empowers authors. But it is rarely discussed and often misunderstood.

Note that the statutory termination provision does not apply to works made for hire or to transfers made by will. The termination right also does not apply to rights arising under foreign laws or derivative works. In the case of derivative works (for example, a movie based on a book), termination of the rights to the underlying work (the book) does not prevent the continued display and distribution of the derivative movie. Once the rights are terminated, however, no new derivative works can be created without permission of the author.

Not surprisingly, the rules to exercise the statutory termination right are specific and must be strictly adhered to or the right will be forever lost. In addition, the Copyright Office does not provide printed forms for the use of persons serving notices of termination and will not notify you when your right to terminate is about to expire.

So here's an oversimplification of how this termination right work.

First, termination can be effected only during a five-year window of opportunity. For works transferred on or after January 1, 1978, the window begins thirty-five years after the grant was made. Special rules apply if the right transferred is the right of publication. In that case, the window begins thirty-five years from the date of publication or at the end of forty years from the date the transfer was executed, whichever is earlier. Presumably this modification accounts for the gap in time between the date a publishing agreement is signed and the date the work is actually published.

Second, the original owner must deliver to the grantee a signed, written, advance termination notice, which includes the effective date of termination, not less than two years or more than ten years before the termination is to take effect. The notice must be signed by the original owner (or owners, as per the statute) or a duly authorized agent, who may be an attorney-in-fact under a power of attorney, or, if the original owner is deceased, an heir or beneficiary under a will. The notice must be recorded with the Copyright Office before the termination is to take place, and, of course, the underlying work must be registered with the Copyright Office.

Third, the Copyright Act states, "Termination of the grant may be effected notwithstanding any agreement to the contrary . . ." Therefore, you cannot "contract around" this right. In other words, you cannot waive these rights by contract. Your right to terminate exists until it is exercised or lost, pursuant to the terms of the statute.

Sound confusing? Maybe. But it is very important that all authors who sell rights in their work understand that they do have the ability to reclaim their copyright. For further discussion of this topic and examples to clarify how and when to exercise your reclamation right, check out Copyright Companion for Writers and Literary Law Guide for Authors!

And continue to Write and Shine!

Tonya Evans-Walls

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