R. Anthony Reese, Termination Formalities and Notice, 96 B.U. L. Rev. 895 (2016).
The 1976 Copyright Act’s provisions on termination of transfers give authors or their statutory successors a mechanism to recapture copyright rights that the author previously transferred to a third party. The statute and its implementing regulations outline a relatively complex set of formalities that must be complied with in order to effect a termination. In this article, I examine two different kinds of notice issues related to these formalities.
The first issue concerns whether the statute and regulations give adequate notice to a potential terminating party regarding termination formalities. That is, how well do the statute and the regulations tell someone who might wish to terminate a grant precisely how to go about doing so? This is primarily an issue of statutory and regulatory clarity and workability. The current statutory termination provisions in some respects fail to provide clear and understandable notice to authors (and their statutory successors) of how to fulfill the formalities necessary to effect a termination. Some of this notice failure is due to poor statutory drafting that leaves those trying to use the provision uncertain of how it operates. Some of the failure arises because such a long time passes between the events that trigger termination’s availability and the start of the actual termination process. But the end result is that the statute’s complex formalities impose hurdles that can potentially stymie attempts to exercise the statute’s termination right.
The second issue concerns how well the statutory scheme gives notice of a termination (and the consequent change of copyright ownership) both to those whose ownership of copyright rights is being terminated and to strangers to the terminated transaction who may wish to use the work involved. When a termination occurs and previously granted rights revert to the terminating party, how clearly does the termination system inform interested parties of the change of ownership? This issue primarily concerns whether the copyright system does a good job of putting grantees and their successors in title on notice of the termination of their ownership, and putting potential users of copyrighted works on notice of whom they should contact to get permission for their desired use.