A Get Out of Jail Free Card for Some Authors

PG originally posted this item in 2011, but thought it might be worth revisiting:

UPDATE: For clarity’s sake, this post talks about rights under US copyright laws only. PG can’t comment about whether other countries have similar provisions in their copyright laws or not.

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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 probably need an attorney to do it.

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

14 thoughts on “A Get Out of Jail Free Card for Some Authors”

  1. PG, I have a few thoughts/questions:

    – I believe this is USA only so the two British authors on the list cannot get back the rights sold to their British publishers and it could be that the US rights were sold on by the UK publishers and that this prevents the authors reverting the US rights?

    – Would the contract structure typically allow US authors to reclaim their foreign rights?

    – For these old contracts could the authors of less popular works not have already terminated the copyright – if they could be bothered – once the book went out of print?

    • Hi, Mike – with the caveat that I’m not a lawyer on either side of the pond. However, I do have UK licenses as well as US, so have researched the same questions, and the answers I’ve got are:

      – British licenses can only be terminated 35 (?25) years after the death of the author (!).

      – foreign rights if licensed via the US publisher as part of the US licensing agreement revert to the author when the US licensing agreement is terminated by the author at 35 years, but there’s often a clause that allows a foreign rights licensing deal that’s already in place *prior to* the author advising of their intention to terminate to continue to run to the end of the licensing period. Note: foreign rights terms are usually five to seven years, not more. I also think (not sure) that the monies accruing from ongoing foreign rights deals after the US license is dissolved would go 100% to the author.

      – authors can only claim back rights for poorly selling works if the reversion clause in the original agreement allows that. If not, it’s 35 years. Also, the definition of Out of Print is not really arguable in the era of e-books and POD.

      • Stephanie, thanks for your interesting response.

        As regards out of print works I must admit that I was thinking of authors who might have already reclaimed rights – or even just got them back by asking the publisher – before the POD/e-book revolution made the definition of out of print moot.

    • Actually, I was reminded of this clause and my earlier posts about it as a result of a discussion with Dean, antares.

      Good eye.

  2. Thank you for reposting this, PG. I have never understood why so many authors seem to either disbelieve this, or think it is somehow all too hard and impossible, anyway. That said, I am aware that the majority of editors and publishers have no clue about this, none at all, and the same goes for many agents.

    As one of the old geezers, I am counting the years. I’ve even made up a spreadsheet for my children so they’ll know when to act to reclaim the titles that I’ll probably no longer be around to reclaim myself. And said children already know how to format and upload to all the platforms. A legacy that passively earns for 70 years after death is a rather nice investment.

  3. Two important points about this:

    (1) There is only a five-year window for termination, starting exactly 35 years after signing.

    (2) The right may become unavailable if some later agreement about the rights is signed, depending on that later agreement’s terms. Watch out what you sign!

    • Hmm…used to be a window of eight years commencing from 10 years before the 35 years point (i.e. 25 years after first publication) and ending two years before the 35th anniversary of first publication. Has that changed? PG?

      It’s also possible to terminate 40 years after the date of the licensing agreement. That might have the five years commencing at 35 year window.

  4. Waiting 35 years to get your rights back (and also threading that 5-year reversion window) still sucks majorly.

    Yeah, I suppose it beats lifetime + 70 years. But still…

    • Agreed, James.

      If I were king for a day, I’d change the law so the opportunity to revert rights would begin sooner.

      • @PG

        There are other ways to get your rights reverted in a more timely manner. Such as signing a contract with a specified end-date for licensing SPECIFIC rights.

        Oh, wait… No Trad Publisher would ever agree to such a contract.

        Sigh… I guess the only viable solution would be to self-publish. 🙂

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