The following is a guest post by Luke Ewing, student attorney at the Colorado Law Samuelson-Glushko Technology Law & Policy Clinic. We’d like to thank Luke and his classmates Sean Doran and Andi Wilt, and their supervisor Blake Reid, at Colorado Law; and law students Eric Malmgren, Erica Row, and Julia Wu, and their supervisor Jack Lerner, at UC Irvine Intellectual Property, Arts, and Technology Clinic for their assistance with the development of the Termination of Transfer tool and templates.

Erica Row, Julia Wu, Pamela Samuelson, Mike Wolfe, Eric Malmgren, and Jack Lerner (not pictured: Sean Doran, Luke Ewing, Andi Wilt, and Blake Reid)

Yesterday, Authors Alliance and Creative Commons released the Termination of Transfer tool at rightsback.org. You may be wondering what the tool does and how termination helps authors. Along with many other beta testers, student attorneys at the Colorado Law Samuelson-Glushko Technology Law & Policy Clinic and the UC-Irvine Intellectual Property, Arts, and Technology Clinic helped verify that the tool accurately reflects the state of termination law. We scoured statutes, regulations, and case history to determine what is required to make the termination process go smoothly under a wide range of circumstances. We also tested the tool to ensure that its results accurately reflect the current state of the law. Finally, we drafted a standardized form and written guidance that make the paperwork simple once an author decides to exercise their termination right.

Authors who assigned their copyrights many years ago may feel that their works are being underutilized or misrepresented, or they may want to renegotiate their earlier agreements. Fortunately, Congress devised a mechanism by which authors can take back those rights. This is a critical opportunity for authors who made less-than-advantageous deals early in their careers, saw their works become unavailable when a publisher went bankrupt, or want to release their works into the public domain or under an open access license. But because the window for termination opens decades after that original transfer of rights and requires navigating a particularly difficult and complex area of copyright law, exercising termination rights can be daunting.

Termination windows are determined by three separate subsections of the Copyright Act (§ 203, 304(c), and 304(d)), the format and instructions for notifying the Copyright Office are spelled out in a list of very particular regulations, and each subsection of the Copyright Act yields a different list of regulations. Determining whether the window is open for a copyrighted work, or which subsection applies, depends on a number of variables, including:

• Was it published?
• If so, when was it published?
• When were rights transferred?
• Did those rights include the right of publication?
• Has the agreement already been renegotiated?
• Were there multiple authors involved, and do they all agree to terminating the transfer?
• Are all the authors still alive?
• And more.

Every one of these questions is relevant, and every answer leads down different branches of a decision tree that indicates whether, when, and how an author may exercise termination rights rights. Without help, trying to understand these rights can be tedious and discouraging.

The tool makes understanding the process easy.  It knows which questions to ask and what to do with the answers to those questions. Within minutes, the tool helps authors better understand how termination of transfer works. Congress intended for authors to exercise these rights, and Authors Alliance wants to simplify the process by removing as much confusion and uncertainty as possible. If you want to learn more about taking back the rights to your work, or are just curious about the process, you can try out the tool right now. It’s free, simple, and only takes a few minutes.

And if you decide to exercise your termination rights, check out our termination of transfer resource page for notice of termination templates and instructions on how to notify the Copyright Office as well as any relevant parties.

The following is a guest post by Mike Wolfe, Scholarly Communications Officer at UC Davis, and the former Executive Director of Authors Alliance.

Sometimes, being an author means making bad deals. Authors are routinely asked to sign away their rights for the life of copyright—which lasts 70 years after death in the U.S.—and the promise of publication, or an advance, or just being done leads them to say, “yes.”

Authors always have options when they come to regret these decisions, but in the U.S. they often hold a trump card: Termination of transfers. These legal provisions, when exercised properly, let authors walk away from their copyright transfers. The linchpin that makes the whole thing work, and the feature that makes these rights so powerful, is that termination rights can’t be signed away. They work “notwithstanding any agreement to the contrary.” At least, that’s what the law says in the United States.

But termination rights are such a powerful tool for authors that they are constantly under threat. Recently a very public series of high-profile (and star-studded) lawsuits has helped to bring this into focus. First, a troubling court decision in the United Kingdom late last year created the potential to undermine the U.S. termination rights of authors worldwide, and more recently a lawsuit initiated by Sir Paul McCartney in the U.S. stepped in with the goal of protecting them.

Duran Duran, the British pop group behind “Hungry Like the Wolf” and “Rio,” wrote their top hits while under contract to assign the copyrights—a contract signed as teenagers at the very beginning of their careers. Decades later, on the hunt after valuable royalties, the band exercised their U.S. termination rights in order to regain copyright and benefit from the success they realized “across the Rio Grande” from Mexico. It’s hard to imagine that, at the time, they had any inkling of being sued in the United Kingdom for breach of contract.

But the contract Duran Duran signed was with a British company, and was subject to British law. With Duran Duran’s terminations processing in the United States, the rightsholder brought Duran Duran into court in the U.K. for violating this agreement. In a highly questionable decision, the British court hearing the matter found that Duran Duran’s proper exercise of their rights under U.S. law was nevertheless a breach of their contractual commitments. (The band was granted leave to appeal the decision in February.)

While this one decision isn’t the last word on whether British law will ultimately respect U.S. termination rights, it does set a dangerous precedent. As high-profile terminations become more common, others will try to challenge them in local courts not just in the U.K., but all around the world. And the U.K. is a particularly important leader, given its large international role in many cultural fields, and particularly in international publishing. Authors from around the world, including authors in the U.S., publish with presses based in the U.K., signing agreements subject to U.K. law.

Enter Sir Paul McCartney, who has his own set of British music publishing contracts that might have been turned against his terminations of transfers. (McCartney would have been eligible to exercise his termination rights in October 2018.) Far from letting it be, I’ve got a feeling that McCartney drove his car down to the courthouse eight days a week, dead set on fixing that hole. His recent lawsuit against Sony/ATV, filed in the United States, sought a confirmation that he may exercise his termination rights without breaching his contracts. Late last week, however, the case settled under undisclosed terms, leaving the status of Sir Paul’s termination claims unclear.

The ramifications here are important. Notably, Duran Duran did not have expert evidence of how the U.S. termination rights override contracts to the contrary. If McCartney had gone to trial and won, he would have had more than just expert evidence; he would have had a judicial opinion in his favor. These cases might not be the last word on the subject, but pursuing  termination of transfers is one way put a halt to the disturbing trend of chipping away at authors’ rights. U.S. copyright law gives all authors, regardless of nationality, a very powerful right and authors everywhere have a stake in seeing it preserved.

Authors Alliance and Creative Commons are finalizing rightsback.org, an online tool designed to assist authors in identifying their eligibility for termination of transfer rights. The tool is currently in beta, and we expect to officially launch rightsback.org this fall. We will keep our readers updated on progress. In the meantime, we encourage authors to test the tool—it’s a powerful way to learn more about termination rights.