Wednesday, April 29, 2009

Revoking Copyright Transfer of Poetry

Dear Rich: My mother wrote and copyrighted a poem which she used as a basis for a book. In the book contract she expressly denied the publishing company the rights to her poem but a year or so later there was a letter that she signed that gave subsidiary rights to the poem to the publishing company. As the trustee of her estate and on behalf of my siblings I would like to revoke the subsidiary rights so that we may have control. Is this possible and do I need an attorney? I'm so glad you asked. The short answers to your questions are, "You may be able to terminate although you may have to wait" and "Yes, you will probably need an  attorney". As to your first question, if your mother made the grant after 1977, you (the children or grandchildren) may terminate the transfer any time after 35 years from publication or 40 years from the transfer, whichever comes first. However, according to the Dear Rich staff, you must take advantage of this right within five years of eligibility. For example, if the transfer and publication occurred in 1980, you must terminate within a five year window after 35 years -- that is, sometime between 2015 and 2020. Also, if the assignment is terminated, the rights in derivative works -- for example, a song based on the poem -- would not be terminated.

If the contract was made before 1978 -- and here's where it gets even more complicated -- you may terminate the contract any time during a period of five years beginning at the end of 56 years from when the copyright was originally secured or beginning on January 1, 1978, whichever is later (see why you may need a lawyer). So if your mother made the transfer in 1953, you would have five years, commencing in 2009, to terminate. The method of effecting the transfer -- it involves sending a notice -- is set forth in the Copyright Act at 17 USC 203(a)(4) and 304(c)(4) (again, the lawyerthe lawyer). It's possible you may also have a right to terminate the grant if the written agreement has been breached by the publisher -- for example, the publisher has failed to account for or otherwise honor the agreement. Ennyway... congratulations to your late Mom for getting a book deal based on a poem. We don't know much about poetry but we remember being twelve years old sitting around listening to a recording of this.

Additional Note: Dan from "A" Side Music, points out that the "subsidiary rights" you describe may not necessarily be a copyright assignment. Good point! As he notes, if it was simply an amendment to the book contract or a nonexclusive license to print the poem for a limited time in a publisher-owned magazine, you may not need to go through the "considerable hoops" required to terminate a copyright transfer. Check the paperwork and if it was a simple license, see if you can contact the publisher and arrange to terminate it (if it hasn't already terminated on its own).