Did you sign a record deal in 1977, but cut your record in 1978 or later?  Then your record agreement may be a “gap agreement”.  Sounds cool, doesn’t it?  (Ed. Note: here is a link to the Gap Band.) http://en.wikipedia.org/wiki/The_Gap_Band

Well, actually, it’s not so cool.  You see, 17 U.S.C. 304(c) (see here) provides authors the ability to terminate transfers and licenses covering the extended renewal term.  Trouble is, it only applies to works, “subsisting in either [their] first or renewal term on January 1, 1978 . . . ”  You didn’t even make your record until 1978 (or later).

17 U.SC. 203 (see here) provides authors the ability to terminate transfers and licenses granted by the author.  But, this only applies to a, “exclusive or nonexclusive grant of a transfer or license of a copyright or of any right under a copyright executed by the author on or after January 1, 1978.”  Your record deal was signed in 1977.

Which one of these laws applies to you?  Does either one?  Surely, Congress did not intend to leave you out of the terminationtimebomb?

The U.S. Copyright Office doesn’t think so.  According to them:

“Gap Grants are terminable under section 203 as currently codified, because as a matter of law the date of execution of the grant will be on or after January 1, 1978.   Until there is a work of authorship, there is no copyright interest, no transfer of that interest, and no author for whom exclusive rights (not to mention termination rights) can vest.  17 U.S.C. §§ 101, 102(a), 106 and 203. Nonetheless, the Copyright Office agrees with many stakeholders that it would be beneficial for Congress to clarify the statute, to ensure greater certainty in the marketplace with respect to the accuracy of copyright ownership.”

The U.S. Copyright Office also amended its regulations governing notices of termination to clarify that the Office will accept for recordation under Section 203 a notice of termination of a grant agreed to before January 1, 1978, as long as the work that is the subject of the grant was not created before 1978 “gap grants”).  These regulations are posted here.  In pertinent part, this states, “In any case where an author agreed, prior to January 1, 1978, to a grant of a transfer or license of rights in a work that was not created until on or after January 1, 1978, a notice of termination of a grant under section 203 of title 17 may be recorded if it recites, as the date of execution, the date on which the work was created.”

The Copyright Office recognizes that, “whether such notices of termination fall within the scope of section 203 will ultimately be a matter to be resolved by the courts.”

Likewise, it remains to be seen whether the courts will adopt the Copyright Office’s position that gap grants are terminable under section 203, or whether Congress will clarify the statute.