Returning Author's Rights:
The CC Termination of Transfer Tool [BETA]
Questions About the Law
What are the "termination of transfer" provisions?
The termination of transfer provisions are sections of the U.S. Copyright Act that give an author or artist, and in some instances their family members or representatives, a statutory process by which they can get back their rights to a copyright protected work that has been sold or licensed away to another entity.
Copyright law protects creative expressions - such as books, films, music, arts computer software, websites and computer games. Copyright grants the creator of these works exclusive rights to control (subject to important exceptions like the US doctrine of fair use) certain activities in relation to their work such as copying, adapting, distributing, performing it. Control of these exclusive rights can be pretty valuable - an author of a book can grant a publisher the exclusive right to publish the book in exchange for an advance and royalties on the sale of copies; the same author can also grant a filmmaker the right to adapt the book into a film based on the book (again for free) and license someone else to adapt the book by translating it into other languages (also for license fees and possibly royalties).
An issue arises, however, if an artist sells or licenses their copyright before they or their work are well-known. Often a creator may be more interested in just doing a deal to get some money and may not be very sophisticated in their negotiating skills when they are just starting out to get the best possible deal. This means that an author may sell or license their copyright for much less than it is actually ultimately worth and the commercial windfall of a successful work is then enjoyed by the company that exploits those rights, not the original author.
This is where the termination of transfer provisions come in. The U.S. Congress decided that it was important to provide a mechanism under which rights, that have been previously sold or licensed, could be returned to the original author or their family members. So the termination of transfer provisions were enacted to, in the words of the U.S. Congress, safeguard "authors against unremunerative transfers" which is necessary because "of the unequal bargaining position of authors, resulting from the impossibility of determining a work's prior value until it has been exploited."
It is important to distinguish between these "termination of transfer" provisions and the regular termination provisions that exist in many contracts. The "termination of transfer" provisions are a statutory mechanism that applies to transfers of right that are permanent (such as a sale of copyright ownership) or transfers that are long-term (such as a lengthy exclusive license). If you have entered into an agreement that is for a short period or includes contractual termination provisions that easily allow you to get back your rights that you have licensed to someone else, then you should probably exercise your contractual rights, rather than go through the statutory "termination of transfer" process.
How do the termination of transfer provisions operate?
The general process for terminating agreements involves the following steps:
- Confirm that the agreement falls into one of the categories of agreements that can be terminated (for more details, see What kinds of agreements can be terminated? and What kinds of agreements cannot be terminated? below);
- Confirm who is authorized to terminate the agreement (eg. an author, joint authors, an author's successors, an author's authorized representatives - see I am not the original author or artist; can I still take advantage of the termination of transfer provisions? below for more details);
- Calculate when the "termination window" (see the glossary) arises (this is a 5 year period during which the agreement can be terminated);
- Calculate the "notice window" (see the the glossary) (this is the period during which a termination notice can be served) which is a period not less than 2 and no more than ten years before the "termination window" arises;
- Serve a valid and proper termination notice by the person(s) authorized to terminate the agreement during the "notice window," identifying a date within the "termination window" as the date on which the agreement will terminate;
- Wait for the notified "termination date" to arrive and then enjoy the rights reverting back to you.
If this sounds complex and like a lot of work to you - it is. And this process is further complicated by the fact that important details for following this process differ depending on whether the agreement is dated before January 1, 1978 or after January 1, 1978 (for an explanation of why these dates matter, see Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below).
This tool is Creative Commons' attempt to try to simplify this procedure (as we explain in describing how the tool works at What does this tool do for me that I can't do by myself? below) and make it more author-friendly and accessible. To date, there have not been many attempts by artists to terminate agreements, even though they may qualify for termination. Creative Commons is providing this tool to try to make it easier for authors and their successors to know if they may be eligible to terminate agreements in the hope that more will exercise their termination rights.
How does getting back my rights help me?
Getting your rights back under the termination of transfer provisions can assist you in two ways.
First up, after you serve a valid termination notice on the person to whom you sold or licensed your rights, they may enter into a new and better arrangement with you to maintain the use of those rights after the termination takes effect. You can try to do a better deal. The ability to terminate the agreement should give you some additional bargaining leverage in your negotiations. Also, because the market will have developed and you will be able to see how successful your work has been, you can use this important information in your negotiations.
Secondly, you regain control of your rights. You can then do as you wish with them, including enter into new agreements and relationships in relation to your work with a (hopefully) stronger bargaining position.
What kinds of agreements can be terminated?
For an agreement to be capable of termination - it needs to be a certain type of agreement. In addition, for agreements dated after January 1, 1978, the agreement must last for more than 35 years (for more information about why this date is important, see Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below). However, there are several exceptions of agreements or transfers involving copyright that cannot be terminated - they are discussed more in the next Q&A (What kinds of agreements can be terminated?).
Returning to the types of agreements that can be terminated, these include:
- A transfer of ownership of copyright of either the whole copyright or of specific rights in copyright. This is often referred to as an "assignment;"
- An exclusive license of one, more or all of the copyright rights, for example, an exclusive license to publish a book;
- A non-exclusive license of one, more or all of the copyright rights, for example a non-exclusive license to play a song on the radio;
- A mortgage or other security on copyright;
- And, in the words of the U.S. Copyright Act, "any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in copyright."
All of these agreements - with the exception of non-exclusive licenses - must be in writing so if you have a copy of an agreement, you should be able to identify what type of transfer it is by reviewing the agreement. To learn more about where to find out details about the type of agreement, check out our List of Useful Documents.
One additional requirement applies to agreements entered into after January 1, 1978 to be terminable - the agreements must continue for more than 35 years. If a post-1978 agreement runs for a period of less than 35 years, then it cannot be terminated because the earliest termination window that arises for a post-1978 agreement is 35 years after the date of the agreement (or from the date of publication of the work if the agreement includes the right of publication). Consequently, artists should ensure that they obtain proper legal advice if publishers or other organizations wishing to exploit their rights try to enter into multiple, rolling agreements for less than 35 years or if a publisher seeks to get them to agree to voluntarily terminate an agreement that lasts for 35 years or more and enter into a new one that lasts for the same or a shorter period of time. To learn more about why there is a difference between pre- and post-1978 agreements, see Why does the tool make a distinction between things that happened before January 1, 1978 and after January 1, 1978? below.
Finally, to qualify for termination, an agreement must not fall into one of the excluded categories. These are discussed in the next question, What kinds of agreements cannot be terminated?.
What kinds of agreements cannot be terminated?
There are four kinds of agreement that cannot be terminated under the termination of transfer provisions:
- a transfer of rights that occurs by reason of the work being a "work for hire;"
- a transfer of rights in a will;
- post-1978 agreements signed by someone other than the author; and,
- certain grants of "common law copyright."
(1) Works for hire
Under the US Copyright Act, copyrighted works that qualify as "works for hire" are subject to special rules that govern who becomes the first owner of copyright in work. For regular works, the person who creates the work becomes the first owner of copyright. However, for "works for hire" either the employer or person who commissioned the work become the first owner of copyright. Neither of these transfers of rights from the author to the employer or commissioning party, which occur by operation of the Copyright Act, nor any subsequent agreements entered into by the employer or commissioning party in relation to the work, may be challenged by the author or their family members.
A copyrighted work qualifies as a work for hire in two circumstances. The first is when the work is created in the course of the creator's employment. To learn more about when a work is created in the circumstances of employment, check out our explanation of this concept in the glossary.
The second is when a work is specially commissioned or ordered (see an explanation of that concept in our glossary). In certain circumstances, copyright ownership in a specially commissioned work may transfer to the person who specially commissions the work, not the creator.
The rules governing the specially commissioned category of "works for hire" changed in 1978.
To learn more about the reason for the distinction between pre- and post-1978 works, see Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below.
Prior to 1978, the courts looked to what the parties intended to see if copyright ownership should pass from the creator to the commissioning party. For the most part, courts assumed that the parties did intend copyright ownership to be transferred; consequently, in the absence of persuasive evidence to the contrary, it is highly likely that copyright in a commissioned work will be owned by the party who commissions the work. There does not have to be any written agreement for copyright to transfer for pre-1978 commissioned works, although obviously if there is an agreement, it can provide evidence of the parties' intent.
For post-1978 agreements, there are three requirements for a work to qualify as a "work for hire." The work must be specially commissioned and come within one of specifically provided categories and there must be a written agreement signed by both parties agreeing that the work will be a "work for hire."
The nine categories of work that can qualify are:
- A contribution to a collective work;
- A part of a motion picture or other audiovisual work;
- A translation;
- A supplementary work;
- A compilation;
- An instructional text;
- A test;
- Answer material for a test; and,
- An atlas.
More explanation of the terms "compilation," "collective work," "instructional text or graphics," "motion picture or other audiovisual work" and "supplementary work" are explained a little more in the glossary.
(2) Transfers by will
As a property interest, the rights that a person enjoys in a copyrighted work can pass, when an individual creator or copyright owner dies, by will or by the laws of the applicable state regarding intestate succession.
If the transfer of rights that is contested is a transfer that occurred in a will, the termination of transfer provisions can not be utilised to have the rights revert. So, for example, if when an author dies they leave the rights to their copyright to a friend, a surviving wife or child of the author will not be able to cancel the gift of copyright to the friend because it occurred in the author's will. (3) Post-1978 agreements signed by someone other than the author
Agreements executed after January 1, 1978 can only be terminated if they were signed by the author. This is different to agreements executed before January 1, 1978, which can be terminated if they were signed by the author or a member of the the author's immediate family. The reason for the broader category of agreements that are terminable prior to 1978 is because U.S. copyright law that governed prior to 1978 recognized the ability of an author's relative to sign away a future interest they may obtain in the author's copyright.
For more information about the reason behind the distinction made between agreements entered into before 1978 and after 1978, see Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below.
(4) Certain Grants of Common Law Copyright
This is a very technical exception to the termination of transfer provisions that is unlikely to apply to the majority of agreements. Under U.S. copyright law prior to 1978, copyright was secured by registering for an initial term of copyright protection and then renewing the copyright registration prior to the expiry of the initial term for a second term.
The termination of transfer provisions only grant the right to terminate agreements entered into prior to 1978 if those agreements related to a renewal copyright interest (ie. a grant in relation to a work in its second copyright term). Because of this limited application of the pre-1978 termination provisions, agreements that do not relate to the renewal copyright interest may not be capable of being terminated. The copyright interest to which such agreements will relate is known as a common law copyright (ie. the copyright arises by virtue of common law as distinct to statute). An example of a pre-1978 agreement that would not be able to be terminated is an agreement that relates to the original copyright term or a pre-1978 agreement that relates to an unpublished work (prior to 1978, a work was protected by US state law (as distinct from US federal law) from creation until publication; upon publication it either had to be registered to secure copyright protection or else it fall into the public domain). To learn more about why a distinction is made between pre- and post-1978 works, check out Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below.
I created my work with another person or a group of people; do the termination provisions still work for me?
Yes, if you created a work you can still take advantage of the termination of transfer provisions. However, the rules about how that happens vary depending on whether the agreement you are seeking to terminate was entered into before January 1, 1978 or after January 1, 1978. To learn more about why a distinction is made between pre- and post-1978 works, check out Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below.
For pre-1978 agreements, any joint author who executed an agreement can terminate that agreement. However, the termination is effective only to the extent of that joint author's interest. In other words, if three authors - Alejandra, Benito and Carlos - create a work and then grant an exclusive license to Company Domingo. Alejandra can, if she wishes, terminate the exclusive license. Company Domingo will still enjoy the rights it obtained from Benito and Carlos but now exercises them together with Alejandra (transforming the exclusive license a non-exclusive license in the process).
By contrast post-1978 agreements operate on a majority rule. This means that if you are a joint author of a work, you need to have a majority of joint authors who executed the post-1978 agreement join you in terminating it. Note that the majority is counted in relation to the authors who executed the grant (not the majority of the total authors of the work). This means that if there were seven joint authors of the work but only five of them got together to sign the agreement, the majority requirement would be satisfied when three of those five exercised their termination right. Also note that the effect of such a termination would be that the entire agreement would be over, it would not cease only with respect to the three who exercised their termination rights and continue in relation of the two of them who did not (which is the opposite of what happens in relation to pre-1978 agreements for jointly authored works).
Of course if one of the authors with whom you created the work is no longer living, their "termination interest" (ie. the right that author holds to be able to terminate an agreement) may be exercised by those of their surviving family members who are recognized by the termination provisions. Read more about which surviving family members are recognized in the next question ( I am not the original author or artist; can I still take advantage of the termination of transfer provisions?).
To understand more about why there are differences in the treatment of pre- and post-1978 agreements, read Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below.
I am not the original author or artist; can I still take advantage of the termination of transfer provisions?
The answer to this question depends on two things: firstly, whether the author or artist who created the work is still living? and secondly, who signed the original agreement that you are seeking to terminate?
If the author or artist is no longer living and they are the person who signed the agreement that you are seeking to terminate then the answer is - yes (on certain conditions, of course). To briefly explain: if the original author or artist is no longer living but transferred or licensed away their rights during their lifetime, the law recognizes the right of certain family members to terminate agreements entered into by the author or artist. Those family members who may be eligible to exercise such a "termination right" are:
- An author's surviving spouse - s/he owns the entire termination interest if there are no surviving children or grandchildren. If there are surviving children or grandchildren, then the surviving spouse owns one-half of the termination interest with children or, if one of the children is no longer living, any grandchildren sharing the other half interest.
- An author's surviving children - owns the entire termination interest equally divided among them if there is no surviving spouse. If there is a surviving spouse, they enjoy a one-half termination interest equally divided among them.
- An author's surviving grandchildren - if one of the author's children is not still living at the time the author dies, then any surviving children of that child enjoy that child's termination interest in equal shares.
The entitlement to exercise a termination right is governed by two majority rules.
The first majority rule requires that those surviving family members, who are entitled to terminate an agreement, must do so by majority action. The majority is calculated on a "per stirpes" basis according to the rules set out by the termination of transfer provisions.
The second majority rule applies to the exercise of the interest of any grandchildren (if relevant). The termination of transfer provisions state that the termination interest of the grandchildren may only be exercised by a majority of them.
To give some examples of the two majority rules in operation: if the author is no longer living but is survived by their spouse and two children, then a majority of the surviving spouse (given s/he owns one-half of the interest) and one surviving child is needed to terminate. However, if there the author's spouse does not outlive the author, then the termination interest must be exercised by a majority of the surviving children; but if one of two children has predeceased the author and the child who predeceased the author has three children (which are the author's surviving grandchildren), then the agreement of at least two of the three grandchildren is needed in order to be able to terminate the agreement.
If there is no surviving spouse nor any surviving children or grandchildren, then the author's executor, administrator, personal representative, or trustee (check out the Glossary for an explanation of these terms) may exercise the termination right.
If an agreement was signed by someone other than the author and the agreement is dated after 1978, then the answer is no. For post-1978 agreements only those executed by the author can be terminated.
If the agreement you are seeking to terminate was signed by someone other than the author and the agreement is dated before 1978, then the answer depends on who executed the grant. For agreements entered into prior to 1978, agreements that were signed by the author's surviving spouse, children, executors or next of kin (see the Glossary) may be terminated but only by the surviving person who executed the agreement. So, for example, if, after the author died, the author's spouse signed in 1970 a 50-year exclusive license, then the author's spouse can terminate this transfer under the termination provisions but the author's children cannot (because they did not sign the transfer). If the spouse and the author's two children signed the pre-1978 agreement, then all three are required (or least, all of those who are still living when the right to terminate matures). The best way to think of this (if it's not too much of a mouthful) is that non-author signed pre-1978 grants can only be terminated by the surviving majority of those who signed the agreement initially.
What is the effect of terminating an agreement?
If an agreement is successfully terminated, then all of the rights that were granted by that agreement revert back to the author or, if the author is no longer living, the rights revert back to those successors who served the termination notice. But the reversion of rights is subject to three important limitations that we explain in the next question, So, I get all of my rights back?.
So, I get all of my rights back?
Not quite - in short, you get all of the rights back that were transferred under the terminated agreement as they apply to the United States and subject to the "derivative works" exception. Let us explain each of these limitations a little more.
"You-only-get-back-what-you-gave-away" limitation - only those rights that were transferred or licensed away under the agreement will revert. This means that if you entered into one license for the publication of a book and a separate license for the production of a movie, when you terminate the book publication agreement, you will only get these publication rights back. To get the movie rights back, you need to see about terminating the movie agreement. Also remember that the termination only takes effect with respect to the copyright interest in the agreement. Some agreements may include permissions with respect to other, noncopyrightable interests such as ideas for storylines or titles of a work; these are not covered by a successful termination notice.
"US-only limitation" - This means that the termination only has effect in relation to uses within the United States. The termination provisions specifically state that they do not affect rights arising under foreign (copyright) laws. Consequently, if you signed an agreement that granted worldwide rights, you will only get back the ability to exercise those rights in the United States.
"Derivative works" exception - although a successful termination causes all of the rights to revert, this will not affect exploitation of derivative works created during the lifetime of the agreement, even after that agreement has been terminated. Once the agreement has been terminated, the grantee (see the glossary). may continue after termination to utilize "derivative works prepared under authority of the grant before its termination..[consistent with] the term of the grant" (to quote from the US Copyright Act). This means that if, for example, an author granted a company a 50-year exclusive license to create a movie based on the author's novel, that company can continue to use and exploit the movie even after the author successfully terminates the exclusive license. The company may not prepare a new movie based on the novel; it may only continue to use the existing movie that it created when the exclusive license was still current.
What happens if the agreement says that I am not allowed to terminate my rights?
You can still terminate your rights even if the agreement that says that you are not allowed to terminate it or take advantage of the termination of transfer provisions. The termination of transfer provisions specifically state that an agreement or transfer can be terminated regardless of any agreement to the contrary. In one instance, a court invalidate an agreement that sought to claim that a work was a "work for hire" (which fall outside the termination provisions - see above, What kinds of agreements cannot be terminated?, for an explanation of "works for hire"). So if the agreement you are seeking to terminate includes anything that tries to get you to agree not to exercise your rights under Section 203, 304(c) or 304(d) of the US Copyright Act or otherwise seeks to limit your rights under the termination of transfer provisions, don't be disheartened. You should still investigate whether it is possible for you to terminate the agreement or transfer.
Of course, if you signed up to an agreement after 1978 that continues for more than 35 years and you then voluntarily terminate your existing agreement before the 35-year period is up and enter into a new agreement, your termination calculation has to be made afresh. You cannot carry a termination right from one agreement, over to a new agreement that you voluntarily enter into. You should obtain proper legal advice before signing any new agreements that cover rights that you have already licensed to ensure that you do not unwittingly jeopardize your termination rights.
Questions About The Tool
What does this tool do for me that I can't do by myself?
This tool is designed to do three things to make it easier for you to navigate the termination of transfer provisions - (1) "notice window" and "termination window" calculation tool;* (2) information gathering; and, (3) lawyer referral tool. Here's how it does each of these things:
Notice and termination window calculation tool - as we explain above in How do the termination of transfer provisions operate?, two key parts of being able to successfully terminate an agreement is correctly identifying when you can serve the notice that you wish to terminate (which is during the "notice window" (see the Glossary). In that notice, you must then nominate a date that falls within the correct period during which the agreement can be terminated (known as the "termination window" (see the Glossary).
The notice window is calculated relative to when the termination window is open. For pre-1978 agreements, the termination window is open for a 5-year period beginning 56 years from the date copyright is secured or beginning on January 1, 1978, whichever is later. For post-1978 agreements, the 5-year termination window period begins 35 years from the date of agreement or, if the agreement includes the right of publication, 35 years from the date of publication or 40 years from the date of execution of the agreement, whichever occurs first. (To learn more about why a distinction is made between pre- and post-1978 agreements, check out Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978? below.)
This sounds confusing to us and we thought it might sound confusing to you too. So we built this tool to do the calculating for you. The tool asks questions about information necessary to calculate these windows and, if the information is accurate and you have a termination right, the information sheet you get once you have completed the tool will set out the likely notice window and termination window, saving you the hassle of figuring this bit out for yourself.
Information gathering - the tool also helps you gather information that can be relevant and useful when trying to terminate an agreement. For example, information about who can terminate and their relationship to the author or artist, the title of the work, the copyright registration number, the original and current grantee (see glossary), all of these are useful pieces of information for the lawyer who ends up assisting you with exercising your termination right. In some cases, this information can be helpful in calculating whether a termination right exists; in others, it is information that needs to be included in the termination notice.
Lawyer referral - Creative Commons hopes to partner (while this tool is on ccLabs we are testing out the functionality and useability of the tool and still working on finalizing these relationships) with various student clinical programs and other lawyers who may be able to represent you in exercising your termination right. Because the termination of transfer provisions are complex and, in many instances, rely on legal assessments (e.g., whether a work is a "work for hire," when copyright was secured, whether an agreement includes a publication right) it is difficult to exercise a termination right without a lawyer. By developing this tool, we hope to make it easier for people to know if they have a termination right and then, if so, make it easier for people to find a lawyer who can help them do something about it.
Of course, this tool is in no way a substitute for you doing your own investigation and research gathering, or finding your own legal team to assist you in identifying whether you have a termination right and then using it to get back your rights. Even if we have just raised your awareness about the existence of these provisions, we feel that the tool has achieved something. If the tool makes things easy for you, please feel free to use it. If you prefer to do it your own way, that's great and we wish you many reverted rights!
I just want to test out the tool, can I do that?
Be our guest. Creative Commons does not keep any records of anyone's use of the tool so you can test out the tool as many times as you want.
How do I find all of the information that I need to complete the tool?
We have provided introductory explanatory pages that are designed to help you figure out what information you are going to need to complete the tool and where you may be able to find that information. The "Overview" page gives you an overview of the nature of the information that you will need in order to complete the tool. And the "List of Useful Documents" page includes a table that maps each section of the tool to the information required to complete that section and some hints and tips as to where you may be able to find that information.
I used the tool on a previous occasion and want to restart from where I left off; how do I do that?
The termination of transfer tool does not save any information nor record any of the information that you input, so you need to start each session from the start and work your way through each question until you get a result.
Why does the tool make distinctions between things that happened before January 1, 1978 and after January 1, 1978?
The tool makes distinctions between agreements that were made before 1978 and after 1978 because the law does. Effective on January 1, 1978, US copyright law changed dramatically.
A key component of this change was that US copyright law changed from being an "opt-in" system to being an "opt-out" system. Before 1978, to own a copyright in the US a creator had to register their works in order to receive copyright protection and that copyright protection was then limited to an initial term of 28 years. Prior to the expiry of the initial term, a copyright owner could then renew their copyright for a further 28 year term. But from 1978, US copyright law changed so that a creator automatically secured copyright protection when they created an original work and recorded it in some tangible form. Registration was no longer necessary. Also, the term of copyright was extended to life of the author plus 50 years; there was no need to renew copyright.
However, in Congress' view the renewal provision had served a valuable tool in helping authors and artists renegotiate any agreements or transfers they had entered into during the initial copyright term, with the benefit of the knowledge as to how popular and valuable their works had been. The belief was that this knowledge assisted authors and artists to negotiate more favorable terms during the renewal term. With the abolition of the renewal system, Congress sought to create a new mechanism to "safeguard authors and artists against unremunerative transfers" (in the words of Congress). The termination of transfer provisions are intended to be that mechanism - provisions which gives authors and artists a "second bite" at negotiating agreements or transfer they signed, possibly early in their career, before they knew their work's true value (which can generally only be determined once the work has been exploited).
However, because US copyright law was very different before 1978 and after 1978, the termination of transfer provisions function very differently depending on whether the agreement in question was entered into before 1978 or after 1978. Because the law makes this distinction, the tool has to make this seemingly arbitrary distinction as well.
I completed the tool and it tells me that I may be able to terminate an agreement; what do I do now?
If the tool indicates that you may be able to terminate an agreement, it will then provide you with an information sheet (in PDF format). This information sheet is designed to be taken to a lawyer and can then be relied on by the lawyer in assisting you to exercise your termination right and, in particular, in preparing a termination notice.
There are a couple of caveats on any results the tool gives you - the tool is only as good as the information you put into it. So if you were unsure of some of the information or if the information isn't quite accurate or is open to legal interpretation, the lawyer you consult with your information sheet, may give you a different result than the tool.
Always remember that the tool is not definitive - if it states that you may have a termination right that means it is a possibility, not a certainty. Remember too that identifying that you may have a termination right is just the first step - there are many more steps to actually exercising and getting the rights back.
As we make clear on the tool (but it's always useful to repeat) neither the tool nor the information sheet are legal advice or a substitute for legal advice. Because the termination of transfer provisions are complex and require quite a lot of legal interpretation, you should always consult with a lawyer before relying on anything the tool generates.
I completed the tool and it tells me that it is unlikely that I can terminate an agreement; what do I do now?
If information you plug into the tool gives you a result that suggests that it is unlikely that you can terminate an agreement, don't despair.
Remember, the tool can only give out results based on the information you provided. It is possible that the information you provided is not accurate - for example, it may be that you gave answers that lead the tool to concluded that the work was a "work for hire" when it is not. For more information about "works for hire" check out What kinds of agreements cannot be terminated? above. So if the tool says that it is unlikely that you have a terminate right, double check the information you provided and maybe investigate some of the details surrounding the information asked by the tool.
If you double check your information and the tool still says it is unlikely that you have a termination right, you still should not despair. The only definite way to know whether you have a termination right or not, is to consult with a lawyer. So you should take the material you gathered in preparation for completing the tool and take to a lawyer for their review and advice. If you are based in the U.S., you may be able to find a volunteer lawyer who can assist you from this site: http://www.starvingartistslaw.com/help/volunteer lawyers.htm.
I completed the tool and it tells me that I may have a termination right at some date in the future; what do I do now?
If the tool tells you that you may have a termination right at some date in the future, this means that - based on the information you provided - it is possible that you have the right to terminate an agreement or transfer but that right does not arise until some future date. Because the tool calculates dates by years (and not by months and days - see I don't know the exact dates, what do I fill in for these questions? below) you should start reinvestigating your termination prospects well before the year identified by the tool commences.
You have several options at this stage - you can consult a lawyer to double check if you may have a termination right and, if so, when it arises, or you can wait until closer to the date given by the tool and reinvestigate your termination prospects then.
One very important caveat is that any termination right you enjoy may change as circumstances develop and change in future - examples of events that may change the outcome include if the author or artist dies, if any of their immediate family dies or if a new agreement or transfer is negotiated. So it is always important to stay up-to-date of all circumstances that may be relevant to your termination prospects and to reevaluate these on an ongoing basis.
Remember that the tool is only as good as the information you put into it. So if you were unsure of some of the information or if the information isn't quite accurate or open to legal interpretation, the lawyer you consult may give you a different result than the tool.
Remember also that the tool is not definitive - if it states that you may have a termination right at some date in the future that means it is a possibility, not a certainty that such a right will arise.
Also, we make clear on the tool (but it's always useful to repeat) neither the tool nor the information sheet are legal advice or a substitute for legal advice. Because the termination of transfer provisions are complex and require quite a lot of legal interpretation, you should always consult with a lawyer before relying on anything the tool generates.
What are the "IP Clinics" referred to? Are they now my lawyer?
NOTE: while the tool is on ccLabs, we are only testing the functionality and useability of the tool and are still working on developing relationships with the IP Clinics.
An IP law clinic or participating law clinic is a program that is run in a U.S. law school in which law students participate and represent clients under the supervision of a licensed attorney. Clinics are run as part of the law school semester so they tend to only operate when classes do. Clinics take on a small number of matters for which they have some expertise and which typically can be completed in a semester.
Several law clinics with expertise in copyright law (which includes the termination of transfer provisions) have generously agreed to assist people who are referred to them via the Creative Commons tool. If you are referred to a clinic, the clinic will then assess the matter and see if they are able to help you. If they decided they can, they will agree to act for you - only then does the clinic become your lawyers.
Of course, you are welcome at any stage to consult your own lawyer - whether before using the tool or after you have the results of the tool.
The agreement says the work is a "work for hire" but the work that is not listed in the tool's categories for "works for hire"; what does this mean?
There may two explanations as to why the agreement says a work is a "work for hire" but the work does not seem to fall into one of the categories listed in the tool.
The first explanation may be that you have misinterpreted the legal classification of the nature of the work in question. For example, it may qualify under the law as a compilation or a contribution to a collective work or a supplementary work even though this doesn't seem intuitive or obvious to you or anyone who isn't intimately familiar with the law in this area. In that case, you may want to investigate this issue further, answer the tool as though the work is not a "work for hire" and then raise it with a lawyer later or consult a lawyer about this now.
The second explanation may be that the grantee (see glossary) may have included a statement in the agreement asserting that the work was a "work for hire" just in case they could take advantage of these provisions, even though they are not able to do so. One of the benefits of the "work for hire" provisions is that they remove a work from the termination of transfer provisions and so the grantee has the benefit of the rights for as long as they can negotiate under the agreement. This is one of the reasons many grantees try to characterize an agreement as a "work for hire" when it may not be. To illustrate how contentious the issue of "works for hire" can be, it is interesting to observe that notably absent from the categories of works that qualify as "works for hire" is sound recordings. Record companies tried unsuccessfully to lobby the US Congress on several occasions to have sound recordings included as a category in the "work for hire" provisions. In anticipation of being successful in their lobbying efforts, many recording contracts refer to the works artists create as "works for hire" even though they are not. Of course, some sound recordings may otherwise qualify as a "work for hire" by being a contribution to a collective work, a compilation or an employee created work; but if this is not the case, then the tool should be completed as though the sound recording is not a "work for hire."
I don't know the exact dates, what do I fill in for these questions?
The tool only requires that you input details of the year in which a relevant event occurred. It does not ask you for the month or the day. The reason for this is that we have designed the tool to be as inclusive as possible so that where there is a choice between whether to calculate that a person may have a termination right or may not have a termination right, the tool errs on the side of assuming that a termination right may exist. The actual periods for any "notice window" or "termination window" will ultimately have to be calculated down to the year, month and day, but for the purposes of the tool, we felt it was more user-friendly and gave sufficient guidance at this preliminary stage of the termination process to just base it for now on the year.
If you have the exact dates, including the month and year, keep these handy for when you consult with a lawyer.
If you are unsure of the exact year, think about trying running the tool using each different year to see if you get a different result for any year and retain each result to review with your lawyer.
If you don't know the year at all then unfortunately you are going to have to do some more digging for relevant information. The termination of transfer provisions are very date-specific so this is vital information for determining if a termination right exists.
I am not based in the U.S; can I still use this tool?
Yes, even if you are not based in the US, you can still use this tool to investigate whether you may have a right to terminate an agreement or transfer - but only if that agreement or transfer involves U.S. rights of course. Remember that, as explained above in, So, I get all of my rights back?, the termination of transfer provisions only take effect with respect to use within the US. This means that the agreement or transfer you are seeking to terminate must relate a territory that includes the U.S., whether it's U.S. only, North America or worldwide.
Questions About Creative Commons
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