A Get Out of Jail Free Card for Some Authors
With all the recent news we’ve seen about the many and varied ways authors can get screwed out of their work, Passive Guy thought a little sweetness and light was in order.
Sorry, but this sweetness and light won’t apply to you young pups and puppettes. This is a geezer-only sweetness and light bulletin.
However, as the night follows the day, whelps grow into geezers, so this sweetness and light is something the younger generations can look forward to as partial compensation for the future bankruptcy of Social Security and Medicare.
The headline: Section 203 of the Copyright Act allows authors and their heirs to terminate a copyright license executed on or after January 31, 1978, thirty-five years after it was signed.
It doesn’t matter if the publication contract says it goes on forever, the license can be terminated and the author can regain all rights to the book.
Since some authors are not good at math, a contract signed in 1978 may be terminated in 2013. For the 1978 stuff, you can send a Notice of Termination in 2011.
Copyright attorney Lloyd J. Jassin tells you all about it:
The impending economic dislocation will manifest itself in the loss of evergreen or backlist titles, as authors, or their heirs, exercise their right to terminate publishing agreements and recapture their copyrights. What is a threat to mainstream book publishers, is otherwise an opportunity for a cheaper, more flexible kind of book publishing. With the ability to recapture rights, access to indie distributors and print on demand technology, authors (and their heirs) will have to decide how much faith they should place in their existing publisher relationships. My guess is that “life of copyright” grants will soon become the exception, not the rule. This article explains why.
. . . .
To protect authors of older works from having to live with a bad deal they entered into when they had little negotiating skill or leverage, the Copyright Act allows authors (and their heirs) to recapture copyrights by sending notices of termination to their publisher partners. This often overlooked, but powerful right, serves as an “insurance policy” for authors who signed away their rights for less than adequate compensation.
. . . .
This lucrative right of termination does not concern itself with when the work was published or registered; it only concerns itself with when the copyright grant or license was signed by the author. Succinctly stated, “Termination may be exercised at any time during a period of five years beginning at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever is earlier.”
The process of terminating an old contract is not a simple one and you’ll need an attorney to do it. While PG is not acquainted with Mr. Jassin, he sounds knowledgeable about this process.
For your convenience, Mr. Jassin lists a few 1978 books that appear to be candidates for termination of existing publishing contracts:
1. The Stand – Stephen King
2. Eye of the Needle – Ken Follett
3. The House of God – Samuel Shem
4. The Far Pavilions – M.M. Kaye
5. Holcroft Covenant – Robert Ludlum
6. Chesapeake – James Michener
7. If Life Is a Bowl of Cherries, What Am I Doing in the Pits – Erma Bombeck
Link to the rest at Copylaw
Aw, darn. You just pulled the rug out from under one of my arguments against giving out epublishing percentages, but that is one heck of a trump card-with-a-nuke. Thank you for linking to this one.
Sam – In a perfect world, you wouldn’t have to wait 35 years, but it will work.
Thanks, PG. Great post.
The original article is very informative… but complex. Can I get your sense of the gist, by paraphrasing?
This article seems to say that my first novel – published in 1980 – will be revokable in 2015 (35 years after publication) and for the next 5 years till 2020…
…. providing that I ask for the rights back, by registered Notice of Termination, any time between 2005 and 2013. (It must be received by both the publisher and the Copyright office at least 2 years but not more than ten years before termination.)
Actually, on re-reading, I believe it is more forgiving than that. The 2-10 year window to ask flows forward along the 5 year opportunity. Thus, my final cutoff date would be a 2018 letter asking for termination in 2020. After which the issue is dead.
Does that example seem to paraphrase the meaning of the article correctly?
Very strange. Something I’d not attempt without a Lawyer. And a good calendar/tickler program to remind me as each 35 year anniversary comes up.
all best
david brin
Yipe!
Another question! If I granted e-book rights in a codicil recently, does that re-set my 1980 contract?
If I file this reversion in 2015 and get my 1980 contract nulled, do they KEEP the e-rights that were signed in 2008?
ooog what a bowl of noodles.
David – This is a good question and I won’t hazard a guess on this. Basically, you’ve granted two licenses – one for print, etc., in 1980 and a second one for erights in 2008.
What the notices are going to do for some publishers and authors is to trigger a renegotiation of contract terms. Authors will have the right to regain their copyrights or may choose to negotiate more favorable terms and leave them with the publisher.
[...] posts, “You Just Signed With a Big Agent? Oh, I’m so sorry” and “A Get Out Of Jail Free Card For Some Authors,” that belief is set in stone. Why do I say that? Let me give you some examples of the [...]
Very good info to have. Thanks for sharing it with us.
Is this US copyright law – or is there something international in it?
Not all of us are with US publishers or living in the US.
Thank you.
Anna Jacobs
Anna – This is US copyright law and I’m not certain if other countries have analogous provisions.
Copyright law in many countries is a combination of local and international laws and treaties. As you may know, the Berne Convention requires its signatories to recognize the copyright of works of authors from other signatory countries and the large majority of countries around the world are members. It was last amended in 1979. Some important provisions of national copyright law are included as a result of the Berne Convention provisions. For example, under the Convention, copyrights for creative works are automatically in force upon their creation without being asserted or declared via a notice or formal filing with nationsl copyright officials..