UK Reversion
Under the 1911 Copyright Act, if an author of a literary, dramatic, musical or artistic work (other than a photograph) assigned or granted an interest in the copyright in one of their works to a third party, that assignment or grant ceased to be effective 25 years after the end of the year in which the author died. At that point the copyright automatically became vested in the author’s estate. The purpose of the legislation was to enable an improvident author’s heirs to benefit from the further exploitation of works the author had created, where the author had assigned away or (as has been authoritatively suggested) had granted an exclusive licence of the works. In practice, this purpose was rarely achieved, partly because the representatives of many authors’ estates simply did not realise that they had gained ownership of the authors’ copyrights, and partly because on or after 1 June 1957, when the 1956 Copyright Act changing the law came into force, many authors signed away their reversionary interest if asked to do so by their publishers. Moreover, any person to whom the author had made a specific bequest of the reversionary interest was at liberty to sell it at once rather than wait for the 25 year period to elapse, and many such persons did so.
Although the Copyright Act 1956 abolished the reversionary right in respect of assignments and grants of exclusive licences made by authors on or after 1 June 1957, that Act and the 1988 Copyright, Designs and Patents Act have perpetuated the reversionary right in respect of assignments and exclusive licences made and entered into before that date. Although the abolition occurred more than 60 years ago, there are still catalogues of authors’ works that were assigned or exclusively licensed before June 1957 and that have many years of copyright protection still to run. When dealing with disposals and acquisitions of catalogues of older copyright works it is vital to consider whether the effects of the automatic reversion have been dealt with. As will be apparent, this provision of the 1911 Copyright Act continues to set a trap for the unwary and to offer an opportunity for authors’ heirs to regain control of works that they see opportunities to exploit.
US Reversion – Generally
Under the United States Copyright Act of 1976, authors have the right to terminate any “transfer” or nonexclusive license of copyright or any rights comprised thereunder. Notice of the intent to terminate such transfer or license must be served on the grantee between ten and two years prior to the effective date of termination. The rules regarding copyright termination for transfers and licenses made before January 1, 1978 are different and slightly more complex than the copyright termination rules for grants made on or after such date.
US Reversion -- Grants Made Before 1978
For works published with a copyright notice prior to 1978, the maximum copyright duration is 95 years from the date of publication. This duration consists of a 28-year initial term and a 67-year renewal and extended term. A pre-1978 work will generally only receive the full 95 years of copyright protection if the work was either published during or after 1964 or its copyright was validly renewed during the 28th year following publication. If the author dies before his or her renewal rights vest at the end of that 28th year, then the renewal rights revert to the author’s statutory heirs set forth in Section 304(c) of the Copyright Act of 1976. Terminations of pre-1978 grants may be made with respect to grants executed either by the author(s) or by the statutory heir(s) entitled to a claim of renewal rights, except for any grant of rights in any work that was made “for hire” under the provisions of the Copyright Act of 1909.
Termination of a pre-1978 grant in a work that is not a work made for hire may generally be effected within a five-year window beginning fifty-six years after the date the copyright was originally secured. As to certain works (that are not works made for hire), including those published between 1964 and 1969, those published between 1923 and 1964 that were validly renewed, and those of qualifying foreign origin published between 1923 and 1969, termination may alternatively be effected within a five-year window beginning seventy-five years after the date the copyright was originally secured.
Grants executed by joint authors prior to 1978 for works other than works made for hire are terminable by any of the executing joint authors (or by a statutorily-defined “majority” of the statutory successors to the deceased author’s termination interest), but the termination is only effective with respect to the terminating joint author’s (or the author’s statutory successors’) interest, and not any of the other executing joint authors’ interests. For example, if joint authors together granted an exclusive copyright license but only one of those authors chooses to terminate, such termination does not divest the grantee of the rights acquired from the nonterminating joint author(s), but it would make the grantee’s rights nonexclusive, as the terminating author and the grantee would each have the power to grant licenses.
US Reversion -- Grants Made On or After January 1, 1978
Transfers of copyright executed by an author on or after January 1, 1978 are subject to termination under Section 203 of the Copyright Act by the author and his or her statutory successors, irrespective of whether the work was initially created or copyrighted prior to, on, or after January 1, 1978. Post-1977 grant terminations will be effective any time during the period beginning 35 years from the date of the grant and ending 40 years from the date of the grant, provided the relevant statutory notice procedures are followed and unless: (a) the grant was made by will, (b) the grant was executed by someone other than the author of the work, or (c) the work was created as a “work made for hire”. Additionally, derivative works created under the authority of a grant after it has been executed but prior to the effective date of termination are not subject to termination.
Notices for termination of post-1977 grants may be served no earlier than 25 years after the date of execution of the grant, or if the grant includes the right of publication, the earlier of (i) 30 years from the date of execution of the grant, and (ii) 25 years from the date of publication of the work under the grant; but in no event later than 2 years prior to the effective date of the termination specified in the notice. By way of example, a grant made on January 1, 1988 that did not include the right of publication can be terminated during the window between January 1, 2023 and January 1, 2028. Thus, the notice of termination may have been served as early as January 1, 2013 (i.e. 10 years prior to the earliest possible termination date) and as late as January 1, 2026 (i.e. 2 years prior to the latest possible termination date).
This right of termination may be effected (i) by authors and joint authors who separately transferred their individual copyright interest, (ii) by joint authors who transferred their copyright interests together pursuant to the same grant and decide as a majority to terminate the grant, and (iii) where an author is dead, by such author’s statutory successors, including his or her widow, widower, children, grandchildren, executor, administrator, personal representative or trustee as set forth in Section 203(a)(2) of the Copyright Act.
Client Alert 2018-064
