Copyright Termination Rights
Copyright termination rights allow authors — or their heirs — to recapture copyrights that were transferred or licensed to studios, publishers, and labels, regardless of what the original contract said. Under 17 U.S.C. § 203, authors can terminate grants made after January 1, 1978, during a five-year window beginning 35 years after the grant was made. Under 17 U.S.C. § 304(c), authors can terminate pre-1978 grants during a five-year window beginning 56 years after copyright was secured. These rights cannot be waived in advance — they are among the most powerful tools available to entertainment attorneys representing creative clients.
The entertainment industry is currently in the heart of the termination window for works created in the 1980s and early 1990s. Major recording artists, screenwriters, and authors are exercising or threatening to exercise termination rights to reclaim copyright in works worth enormous sums. Labels, studios, and publishers are fighting back with work made for hire arguments and procedural challenges. Understanding the termination right framework — and the tactical decisions it requires — is one of the most consequential skills for entertainment attorneys in this era.
Termination of post-1977 grants — authors may terminate grants made on or after January 1, 1978, during a five-year window beginning 35 years after the grant (or 35 years after publication for licenses including publication rights). Notice must be served 2-10 years before the effective termination date.
Termination of pre-1978 grants — authors or their heirs may terminate grants made before January 1, 1978, during a five-year window beginning 56 years after copyright was originally secured.
Works made for hire are not subject to the termination right — making the work made for hire question the primary defense asserted by labels and studios against termination claims.
Whether Joe Simon's creation of Captain America was work made for hire, and whether Simon could waive his termination rights by agreeing it was work made for hire.
Termination rights are non-waivable — creators cannot contractually give up the right to terminate. The work made for hire question must be resolved on the merits, not by contract agreement.
Whether the heirs of Superman co-creator Jerry Siegel could terminate the 1938 grant of Superman rights to DC Comics.
The court found that the Siegel heirs had successfully terminated the grant for certain Superman rights — one of the most significant termination right victories in entertainment history. Ultimately resolved by settlement.
Copyright termination is creating a generational wealth transfer in the entertainment industry — from the companies that profited from decades of control over creative works back to the creators and heirs who created them. Major catalog disputes are actively proceeding in music (recording artists seeking to reclaim masters), comics (creators reclaiming character rights), and film (screenwriters reclaiming script rights). Labels and studios are defending by asserting work made for hire, procedural defects in termination notices, and statutory interpretation arguments — but the trend favors creators who served proper notice.
For creator clients approaching their 35-year window, calculate the termination window precisely and serve notice at the earliest opportunity — the 2-10 year advance notice window is narrow and missing it forecloses termination.
Termination notice must meet strict statutory requirements — use the Copyright Office's termination notice form and procedures to avoid procedural defects that could invalidate the notice.
Advise labels and publishers that work made for hire arguments against termination are vigorously contested — the contract label alone will not defeat a well-founded termination claim.
For heirs of deceased authors, understand the complex rules governing who has termination rights when the author has died — surviving spouse, children, and grandchildren all have statutory interests.
After successful termination, the recaptured copyright is free of the original grant — but the original grantee retains the right to exploit derivative works already created under the grant. Negotiate carefully what derivative rights survive termination.
Termination rights allow authors to reclaim copyright 35 years after transfer regardless of what the original contract said — they cannot be waived in advance.
The termination window is a five-year period, not a single date — but advance notice requirements of 2-10 years create a narrow window to act.
Works made for hire are not subject to termination — making this the primary defense asserted by studios and labels against termination claims.
The entertainment industry is currently in the termination window for 1980s-1990s works — major catalog disputes are actively proceeding.
After termination, derivative works already created can continue to be exploited — the original grantee retains this right even after recapture.
No — termination rights are non-waivable under the Copyright Act. Any agreement purporting to waive termination rights in advance is unenforceable.
For pure copyright transfers, 35 years after the date of the grant. For grants that include the right of publication, the window opens 35 years after publication or 40 years after the grant, whichever is earlier.
Yes — after the author's death, termination rights can be exercised by the surviving spouse (50%), children (split remaining 50% among them), and grandchildren (by representation if parent is deceased). A majority interest must agree to exercise the right.