In my last post, I discussed in general terms the timing requirements for when a grant can be terminated (i.e., when termination can be made effective). See Chapter 2 of this series here. Let's now turn to the question of when notice of termination must be sent. Then, in Chapter 4, I will discuss what must be included in such a notice and how it must be sent and recorded with the copyright office. One piece of good news: The notice of termination requirements are more or less the same for both pre- and post-1978 grants.
Notice of termination must be given no more than ten years and not less than two years prior to the effective date of termination set forth in the notice. Given that the termination windows (for both pre- and post-1978 grants) are five years long, this creates a 13-year period in which notice can be sent. This may not seem intuitively obvious, but let me explain. A notice of termination can be sent as many as ten years before the first date in the five-year termination window and as little as two years before the last day in the five-year termination window. This creates a 13-year effective period.
A concrete example may be more helpful. Let's say you want to terminate a pre-1978 grant of a copyright interest in a work where copyright was secured on July 1, 1970. The 5-year termination window will begin after 56 years on July 1, 2026 and will end five years later on July 1, 2031. You can make termination effective at any point within that five-year period and notice of termination must be given as many as ten years and as little as two years before the designated effective date. If you chose to make the termination effective on the first date possible (i.e., July 1, 2026) notice could have been given as early as July 1, 2016 and if you chose to make termination effective on the last possible date (i.e., July 1, 2031), notice could be given as late as July 1, 2029. Hence the 13 year window (from July 1 2016 to July 1 2029).
Similarly, for a post-1978 grant made on July 1, 1990, the five-year window for making termination effective begins after 35 years (see caveat below) or on July 1, 2025 and ends on July 1, 2030. If you chose the earliest possible date for the effective date of termination (i.e., July 1, 2025), notice could have been given as early as July 1, 2015, and if you chose the last possible date (i.e., July 1, 2030) notice may be given as late as July 1, 2028.
Here is the caveat referred to above. As noted in a prior post, if the post-1978 grant includes a right of publication (such as a grant by an author to a book publisher), then the five-year window for termination begins the earlier of 40 years from the grant or 35 years from publication of the work in question.
Next up: What needs to be included in a notice of termination?
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