The tide of copyright may be flowing back to authors.

The tide of copyright may be flowing back to authors.

A copyright is a set of exclusive rights granted to the creator of a new work of expression.  United States copyright law protects original works of authorship fixed in any tangible medium of expression.  17 U.S. Code § 102(2)  This section of code uses the word author to include, artists, photographers, film makers, musicians and various other creative professions.  Copyright protection is granted when the work is fixed in a tangible medium, which means the work is written down, recorded, or saved in some permanent fashion.  A copyright can be registered to strengthen an authors claim to the work and gain additional rights, however fixation is the event that grants an author a copyright.

A copyright grants its owner the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original.  If someone other than the copyright owner exercises one of these rights without authorization, that can be considered copyright infringement. A copyright owner can address copyright infringement by filing a lawsuit.  A copyright plaintiff can request a court issue an injunction barring the infringing activity and request monetary damages for infringement which has occurred.

A copyright is one of the primary forms of intellectual property.  Like any piece of property a copyright can be bought. sold or licensed.  The sale of a copyright is referred to as an assignment, because the author is assigning their right to another party.  A copyright differs from other pieces property however, because the assignment of a copyright can be terminated by the original author.

An author’s right to terminate an assignment is codified in 17 U.S.C.A. § 203.  The statute reads as follows: In the case of any work other than a work made for hire, 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 January 1, 1978, otherwise than by will, is subject to termination…  17 U.S.C.A. § 203(a).  There are several conditions which an author must abide by to terminate an assignment.  An author must notify an assignee within a five year period, 35 years after the assignment was made.  The notification must be in writing, it must state a termination date and the notification must be recorded with the Copyright Office before the termination date.  Termination can be accomplished even if there is an agreement to the contrary between the author and the assignee.  17 U.S. Code § 203(a)(5).  The timing of the termination notice is key so it is best to review all the dates with an experienced copyright attorney.

The public policy behind this statute is that creators typically start their careers in a desperate financial situation. A new author is typically so happy to sell a book that they sell their copyright for a pittance.  17 U.S.C.A. § 203 gives a creator the ability to reclaim their work and renegotiate for a better deal.

This section of copyright law is becoming increasingly relevant because it applies to more and more works.  Many popular movies are based on books.  The trend in movies is to reboot the movie franchise and update old movies for a new generation.  The original authors of the books and screenplays are now trying to recapture their works.  The authors of Who Framed Roger Rabbit, Friday 13th and Terminator have all sent termination notices to the movie studios who brought the original works.  If the authors are successful, it could give other movie studios an opportunity to offer the original authors a more attractive deal.

If you have questions or comments for the authors of this blog please email us at: