Getting your rights back: termination and the 35-year rule
28 · · 17 min read · Español
A grant you signed can be taken back. United States law gives an author a five-year window opening thirty-five years after the grant was executed, and no clause inside that grant can waive it. What decides whether you get anything is a deadline nobody repeats: the notice has to be served between two and ten years before the date you pick, and recorded before that date. Canada runs a different mechanism entirely — automatic, unwaivable, and triggered by the author’s death rather than by a signature.
- Section 203 lets an author terminate a grant of copyright executed on or after 1 January 1978, other than by will, during a five-year period beginning thirty-five years from the date of execution.
- Where the grant covers the right of publication, the period begins thirty-five years from publication or forty years from execution, whichever ends earlier.
- Notice must be served not less than two and not more than ten years before the effective date, and a copy recorded with the Copyright Office before that date as a condition of it taking effect.
- Termination may be effected notwithstanding any agreement to the contrary. It cannot be signed away in the grant it would undo.
- Works made for hire are excluded, so whether a sound recording is terminable turns on whether the work-for-hire label held in the first place.
- In Canada no assignment or grant by an author who was first owner, made otherwise than by will, is operative beyond twenty-five years after the author’s death, and any agreement disposing of that reversionary interest is void.
What is termination, and what does it undo?
Termination is a statutory right to take back a grant of copyright the author made, on a schedule Congress fixed, whatever the grant itself says.
Section 203 names what it reaches in one clause: “the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will.”
Read the nouns rather than the sentence. Grant. Transfer. Licence — exclusive or non-exclusive. That is the publishing deal, the producer agreement, the one-page assignment somebody put in front of you at a session, and the co-publishing paper you signed at nineteen. Anything where a right left you in writing, which is the only way a copyright moves at all.
Three things it does not reach. A grant you did not make yourself — your label’s deal with its distributor is the label’s grant, not yours. A transfer by will. And a work made for hire, which is a large enough exception to have its own section below.
The right belongs to the author, which is worth saying plainly because it is the part that surprises people who have already sold something. Selling the copyright does not sell this. It is not part of the asset.
When does the window open?
Termination may be effected during a five-year period beginning at the end of thirty-five years from the date the grant was executed.
Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.
The second half is the one that moves dates around, and publishing grants almost always cover publication. So run both clocks and take the earlier finish.
A worked example, because the arithmetic is the whole section. You signed a publishing agreement on 3 March 1996 and the song came out in 1998. Thirty-five years from publication ends in 2033. Forty years from execution ends in 2036. The earlier of the two is 2033, so the window runs 2033 to 2038 and you may name any effective date inside it.
Grants executed before 1978 run on different numbers — section 304(c) opens fifty-six years from when copyright was originally secured, and section 304(d) adds a further five-year window at seventy-five years for authors whose earlier one lapsed unused. Most people reading this signed after 1978 and can stop at section 203.
One more rule that decides who has to agree. Where a grant was executed by one author, that author terminates it alone; where it was executed by two or more authors of a joint work, termination is effected by a majority of the authors who executed it. Three co-writers who signed together need two. The same arithmetic you already run on a sheet everybody signed, thirty-five years later, with two of you unreachable.
What do you have to do, and by when?
Serve a written notice on the grantee not less than two and not more than ten years before the effective date you choose, then record a copy with the Copyright Office before that date.
The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect.
Both halves are conditions. A notice served eleven years out does nothing. A notice served eighteen months out does nothing. A perfectly timed notice that never reaches the Copyright Office does nothing, and the statute says so in the words “as a condition to its taking effect.”
The regulations set out what the notice has to contain: a statement of which section it is made under, the title and at least one author of each work, the date the grant was executed, the effective date of termination, and the name of each grantee whose rights are being terminated. It is served by personal service, or by first class mail or courier to an address found after a reasonable investigation.
And the Copyright Office will not tell you whether you got it right. Circular 12 is flat about the limits of the counter: the Office “does not examine or determine the validity, legal sufficiency, or effect of” what it records. A recorded notice is a filed notice. It is not a blessed one.
Now the part this page exists for. Everyone repeats the thirty-five-year figure and almost nobody repeats the other one, and it is the other one that governs. Read the first clause of that quote again: the notice shall state the effective date, and every other number counts backwards from the date you name.
So on the 1996 example, where the window runs 2033 to 2038, there is not one deadline but a sliding pair. The earliest a notice can go out is 2023, ten years before the earliest date you could name. The latest any notice can go out is 2036, two years before the last date you could name. Serve in 2023 and 2033 is the earliest effective date available to you; serve in 2036 and 2038 is the only one left.
Which is the sentence to carry out of here: the date that ends your right is not the end of the five-year window, and it is not a single date at all. It is two years before whichever date inside the window you still want.
Serve the notice outside that window and the termination does not take effect at all. Orpheus also had one condition and one chance. Nobody made him record it with the Copyright Office.
Can a contract take this away from you?
No. Termination may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.
That is section 203(a)(5) — “Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant” — and it is the shortest sentence in this area doing the most work. Congress had already watched the previous statute’s reversion get contracted around by anyone with a lawyer, and wrote this one so it could not be. A clause promising never to terminate does not survive it. Neither does a promise to re-grant afterwards, which is the obvious workaround and is named in the sentence.
What a grantee can still do is negotiate, and the statute sets the shape of that negotiation rather than leaving it open. Two clauses do it. Under section 203(b)(2) the reverting rights vest on the day the notice is served, not on the effective date. Under section 203(b)(4) a further grant is valid only if it is made after the effective date — with one exception, an agreement with the original grantee or its successor, which may be made once the notice has been served.
Read what those two do together, because it is the whole negotiation. Until you serve, you cannot contract with anyone about the rights coming back. Once you serve, the incumbent is the only party in the world you may deal with until the effective date arrives, and every other bidder waits.
So serving early hands them a long window in which they know they are the only buyer, and serving late shortens it. That is leverage arriving on a schedule you set, and it arrives whether or not you ever intend to go through with the filing. Knowing the date is what turns the conversation into a negotiation instead of an ambush.
Does any of this reach your masters?
Only where the recording was not a work made for hire, because section 203 excludes works made for hire from termination entirely.
Which puts the whole question back on a clause this site has already taken apart. A commissioned sound recording is not among the nine categories that a specially ordered work has to fall into before a work-for-hire label means anything — atlases are on that list and sound recordings are not. So the same clause is load-bearing twice, in opposite directions, decades apart.
Hold both readings at once, because they are two halves of one fact. If the work-for-hire label failed, the producer or label did not become the author, and whatever they got instead they got by assignment — which is a grant, which is terminable. If it held, they are the author, there was never a grant, and there is nothing to terminate. The clause you were told not to worry about decides both.
Whether a commissioned sound recording delivered for an album can be a “contribution to a collective work” and so fit a listed category after all is a live argument that has not been settled, and this page is not going to pretend otherwise. It is also exactly the argument a record company will make. What the producer gets on the money side, separately from all of this, is points, and points are their own subject.
What do you not get back?
A derivative work prepared under authority of the grant before termination may continue to be utilized under the terms of the grant after termination.
A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant.
For a songwriter that clause is the sting, because a sound recording of your song is a derivative work of it. Terminate the publishing grant on a song and you get the song back, while every record already made of it under that grant keeps being exploited on the old terms, indefinitely. What stops is new ones — a new recording, a new sync, a new arrangement cannot be authorised under a grant that no longer exists.
So the catalogue you recover is the right to license the song from tomorrow, not a clean sheet. You get the song back and they keep every record that made it worth having. That is a shit hand, and the statute is what deals it.
And you get it back in one country. Section 203(b)(5) is flat about the reach — “Termination of a grant under this section affects only those rights covered by the grants that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws.” Terminate a worldwide publishing grant and the United States rights come back while the rest of the world stays exactly where it was. The same song, yours in Chicago and theirs in Berlin.
It is still worth having. A song with a live termination date is a song with a negotiation attached to it.
What happens in Canada?
Canadian reversion is automatic rather than exercised. Under section 14(1) of the Copyright Act, an assignment or grant by an author who was the first owner, made otherwise than by will, does not vest rights beyond twenty-five years from the author’s death.
Where the author of a work is the first owner of the copyright therein, no assignment of the copyright and no grant of any interest therein, made by him, otherwise than by will, after June 4, 1921, is operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of twenty-five years from the death of the author, and the reversionary interest in the copyright expectant on the termination of that period shall, on the death of the author, notwithstanding any agreement to the contrary, devolve on his legal representatives as part of the estate of the author, and any agreement entered into by the author as to the disposition of such reversionary interest is void.
Three differences from the American rule, and each of them changes what you do about it.
Nobody files anything. There is no notice, no window and no counter, because the limit is on what the assignment was ever capable of conveying rather than on a right you exercise. An author cannot lose it by inaction, which is the whole reason it needs no deadline.
It is not yours. The reversionary interest devolves on the author’s legal representatives as part of the estate, so this is an inheritance question rather than a career one — and the statute voids any agreement the author makes about disposing of it, which is the same anti-waiver instinct as section 203(a)(5) arriving by a different road.
The trigger is death, not a date you can plan around. Section 14(2) also carves out assignment of copyright in a collective work and a licence to publish a work as part of one, so anthology and compilation deals sit outside it.
One limit worth stating rather than leaving to inference, because the section above this one was about masters. Section 14(1) opens “Where the author of a work is the first owner” — and in the Canadian Act a sound recording is not a work with an author. Section 18 gives copyright in a sound recording to its maker, and section 2 defines that maker as the person who undertakes the arrangements necessary for the first fixation of the sounds. So the reversion above is a rule about songs. Whether anything in Canadian law does the same job for a master is a question this page does not answer.
And if your grants span both countries — an American publisher, a Canadian writer, or the reverse — which rule reaches which right is genuinely not obvious, and it belongs to a lawyer rather than to a blog post.
What do you write down today?
Five fields for every agreement you have ever signed: what was granted, to whom, the date of execution, whether the grant covered the right of publication and when publication happened, and whether the document claims the work was made for hire.
- What was granted. The song, the recording, or both — and which rights. A grant of one is not a grant of the other, and the two travel separately.
- To whom. The name on the paper, not the company that bought them later. The notice goes to the grantee or a successor in title, and successors are how a name goes cold.
- The date of execution. The date the grant was signed, which is not the release date and not the date of the session. Every number in this piece counts from it.
- Whether it covered publication, and when publication happened. These are the two inputs to the forty-year alternative, and the second one is the one nobody records.
- Whether it claims work made for hire. Copy the clause out verbatim, including the fallback assignment sentence if there is one. That clause is the whole of section five above.
Five fields, computable, and every date in this piece falls out of them. None of them are recoverable from memory in 2050, and by then the two people who could have confirmed the fourth one will be a phone number that no longer works. A register that already holds your identifiers and your splits is the place they belong — the audit checklist is what keeping one properly looks like.
Then do the arithmetic once, per grant, and write the two dates down beside it: the year the window opens, and the year the notice is late. The second one is the only date on this page that can be missed.
FAQ
Can you get your masters back after 35 years?
Only where the recording was not a work made for hire, because section 203 excludes works made for hire from termination. Whether a commissioned sound recording qualifies is genuinely unsettled, and it is the question a lawyer has to answer against your actual agreement.
Does termination happen automatically?
No. In the United States termination is a right you exercise by serving a notice and recording it, and a window that passes unexercised closes. Canadian reversion under section 14(1) is the opposite: it operates automatically, without anyone filing anything.
Can a contract waive your termination right?
No. Section 203(a)(5) says termination may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant. A clause promising never to terminate does not survive that sentence.
What happens to records already released when a grant is terminated?
A derivative work prepared under authority of the grant before termination may continue to be utilized under the terms of the grant afterwards. Recordings already made of a terminated song keep running on the old deal; new ones cannot be made under it.
Sources
- US Copyright Act, 17 U.S.C. § 203 — which grants are terminable and the work-for-hire exclusion (a); who may terminate, including the joint-work majority (a)(1); the five-year window and the publication alternative (a)(3); the notice and recordation conditions (a)(4)(A); the anti-waiver sentence (a)(5); the derivative works exception (b)(1); the vesting of reverting rights on service (b)(2); the further-grant rule and its post-notice exception (b)(4); and the territorial limit (b)(5).
- US Copyright Act, 17 U.S.C. § 304 — pre-1978 grants: the fifty-six-year window under (c) and the further seventy-five-year window under (d).
- 37 CFR § 201.10 — the required contents of a notice of termination, and how it must be served.
- US Copyright Office, Notices of Termination — which section governs which grant, and that the notice must be recorded before its effective date.
- US Copyright Office, Circular 12 — that the Office does not examine or determine the validity, legal sufficiency, or effect of what it records.
- Copyright Act (Canada), section 14 — the twenty-five-year limit on what an author’s assignment can convey, the reversionary interest devolving on the estate, the voiding of any agreement disposing of it, and the collective-work carve-out at 14(2).
- Copyright Act (Canada), section 18 and section 2 — copyright in a sound recording belonging to its maker, and the maker defined as whoever undertakes the arrangements necessary for the first fixation of the sounds.
This is not legal advice, and termination is one of the areas where an hour of counsel is worth more than any amount of reading — the dates are unforgiving and the work-for-hire question genuinely turns on your own paperwork. Every page cited here was read on the date at the top of this piece. If a grant of yours is inside ten years of its window, that is the moment to have a lawyer in the relevant territory look at the document itself.
Keeping the register
The five fields above are register fields, and CatalogTracker is where this site keeps that kind of thing: agreements uploaded against the release they belong to, with a SHA-256 content hash so the copy you are reading in 2050 is provably the copy you signed, parties stored as records rather than as names in a phone, and a full history of who changed what and what it said before. Two honest limits, because this page is about dates: it stores an agreement, it does not compute a termination window, and nothing in it is an opinion about whether a grant of yours is terminable. In development for iPhone.