An Excerpt from A Second Bite of the Apple: A Guide to Terminating Transfers under Section 203 of the Copyright Act

 

by Margo E. Crespin

Back in 1979, you were a struggling author, eager to publish your first novel and make a name for yourself in the literary world. After months of marketing your work, a fantasy tale about a young detective, to publishers, you received an offer from Lowball Press to publish the book. When you reviewed the terms of the deal, you noticed that the percentage of royalties Lowball offered was only half that of the industry standard. Although initially reluctant, you decided to accept the low royalty rate, believing that once you established your reputation, you could negotiate a higher rate for your future books. On January 1, 1979, you signed a contract transferring the right to publish the book in English and all other languages along with the right to create derivative works (adaptations based on the book) to Lowball. The book was published on January 1, 1980 and became an instant best-seller.

Years have passed and your book, The Adventures of Penelope I., is now viewed as a classic. It has been translated into 15 different languages and read by children and adults all over the world. The book has sold well consistently over the years. You have not been quite as fortunate. In the wake of Penelope I.‘s success, Prophet Books offered you a contract to publish your autobiography on what appeared to be favorable terms. They offered to double the percentage of royalties you received on your first book. Despite your hopes of writing a second best-seller, your life story received horrible reviews and sales proved unimpressive. Disappointed, you gave up on writing novels and shifted your energy to poetry. Unfortunately, with its significantly reduced audience, your poetry has failed to generate much income. You meet with your attorney to commiserate. “If only I could turn back time,” you say. “If only I could regain the rights I transferred to Lowball. Is there anything I can do?”

“Yes, there is, or perhaps I should say, there will be,” she replies. “Section 203 of the Copyright Act allows the creator of a copyrighted work, who, during her lifetime, has transferred all or some of the rights to the work on or after January 1, 1978, to terminate the transfer and regain the rights after a certain period of time—generally, at least 35 years from the date of grant or from publication. The earliest Section 203 terminations of transfers will take effect in 2013. Section 203 was enacted to give authors the opportunity to regain rights they may have signed away when they had little bargaining power. It gives authors a second bite of the apple, a second chance to exploit the rights in and benefit from the works they created.”

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