Confusion emerges over the right to terminate U.S. copyright grants
One of the intents of the U.S. Copyright Act of 1909 was to give certain authors, songwriters and other creators the right to recapture their previously assigned copyrights after an appropriate amount of time.

But through the years, that intent was undercut both in practice and through the courts. Now confusion has arisen over a provision of the 1976 Copyright Act that sought to rectify this situation.

The 1976 act abolished the two-term period of copyright protection for works created after Jan. 1, 1978, and replaced it with a single term. Congress then enabled creators under Section 203 of the act to terminate "the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright executed by the author on or after Jan. 1, 1978."

In its most simple form, the termination right may be exercised 35 years after "the date of execution of the grant." Applying the math, authors and their advisers are realizing that these terminations can begin on Jan. 1, 2013. There are of course some exceptions, such as grants made under a will and works made for hire.

However, lurking behind this noble intent is a confusing problem created by the act's different treatment of pre-1978 and post-1978 copyrights. Copyrights secured prior to Jan. 1, 1978, aren't subject to termination until 56 years after the original grant.

So what happens when an author agrees to make an assignment prior to Jan. 1, 1978, but the work itself isn't created until after that date? Think, for example, of a songwriter signing an exclusive songwriting agreement with a publisher on Dec. 1, 1977, and then delivering a new composition on Feb. 1, 1978. Can the writer recapture his copyright in 2013? Or must he wait another 20 years until 2033?

Realizing the dilemma, the U.S. Copyright Office solicited public comment on the matter, noting that by creating differing termination provisions, Congress may have created an unintentional "gap" for certain works.

Part of the problem is procedural; both the statute and the regulations for the Copyright Office require the terminating party to list the grant's date of execution. Listing the wrong date could be fatal to the termination attempt.

After reviewing the public comments, the Copyright Office has amended its rules to provide that in those cases where an author agreed prior to Jan. 1, 1978, to assign his rights in a work but the work itself wasn't created until after that date, the notice of termination may cite the date of creation of the work as the date of execution of the grant.

This amendment is based on sound legal reasoning. One can't assign something that doesn't exist yet. As the Copyright Office notes, "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) comes into existence."

However, a point emphasized by many of the public comments was that the courts haven't yet addressed this issue and there are likely to be numerous problems. For example, how can one provide a date of creation with any certainty? Will this result in evidentiary battles between authors and publishers?

Also, this issue really only concerns a limited number of works created under specific conditions. Nonetheless, this amendment to the Copyright Office rules should bring much needed clarity to an unintentional quagmire, at least until the courts or Congress weigh in. One can only wonder if the Copyright Office will bring the same wisdom to some of the other murky sections of the Copyright Act.

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