I can’t ignore termination any longer! This is a copyright subject that has significant implications for academic authors, so it needs to be discussed in this space. But until this week I have not been sure what to say or how to say it. Fortunately I can now point readers to some entertaining explanations of the “termination right” (which sounds like something out of a sci fi film noir).
Basically, the termination right is a mechanism built into to copyright that gives an original copyright owner a chance to reclaim their rights after something less than half the duration of copyright. It is intended to reward creators who trade the rights away relatively cheaply and later discover that they are more valuable than anyone expected.
The termination right is found in section 203 of the Copyright Act and applies to all copyrights except those in works made for hire. It allows an author who transfers her rights or grants an exclusive license to reclaim those rights after 35 years. For the vast majority of copyrights this will not be very important, since few works retain any value at all after that length of time (which is why the life plus 70 term of copyright is so foolish). But there may be academic works written by faculty at our institutions that are still valuable, if not profitable; academic works retain research and historical value long past their period of economic profitability. The termination right is a chance for academic authors to reclaim their rights and consider new ways of making their scholarship available to a broader audience, especially in a time when so many institutions offer an open access repository.
Now is the time to think about termination because works granted copyright under the 1976 act are just now starting to be eligible for termination. Do you have a senior faculty member whose classic work of scholarship has been out-of-print for a while but would be a jewel in your repository? This is the moment to discuss termination (of the copyright!) with that author.
The window for termination is defined in a rather complex fashion, but it is nicely (and humorously) explained in this column by copyright and higher education attorney Zick Rubin, “Ill Be Back (in 35 years)”: The Author as (Copyright) Terminator. Rubin focuses on still-viable textbooks, but termination may be a bonus for authors of out-of-print but still in-copyright monographs as well.
For other formats, termination can be just as important. Consider this column from Variety about the termination of transfer of music copyright, which is one place where the purpose of termination – to give back to the original creator the chance to capture profits – seems especially likely to succeed.
Readers of both documents will note the theme of 1970’s nostalgia running throughout. So just to vary the cultural references, I will also point to this news report of a court case over Betty Boop, the 1930’s cartoon icon. The effort by the family of Betty Boop’s creator Max Fleischer to recover the ongoing value of Betty was not brought under the termination provisions, of course, and it was not successful. But it still illustrates the problem termination is intended to solve, and it makes reference to other cartoon figures – Spiderman, the Fantastic Four and others – where termination is precisely the tool for copyright reclamation under discussion.
If creators of disco music and cartoon characters can reap a benefit from the termination clause in copyright, there is no reason at all that we should not help our academic authors do the same.