December 3, 2012
A law that lets authors break contract after 35 years to take effect in January
by Ariel Bogle
This January, a copyright law allowing authors to break their publishing contracts after 35 years will take effect.
Called “termination rights,” the law reverts rights back to the author, meaning that works published in 1978 could soon leave their publishers, or new contracts forced to be negotiated.
As Jeff John Roberts writes on Paid Content, the industry fear is that publishers could lose swathes of their back list.
“The law in question is Section 203 of the 1978 Copyright Act which allows authors to cut away any contract after 35 years. Congress put it in place to protect young artists who signed away future best sellers for a pittance …Termination rights are not a new idea and have been the subject of famous court cases involving John Steinbeck, Lassie and Superman. The difference is that these older cases are based on a pre-1978 law that often required an author to exercise renewal rights which, in many cases, the author had signed away.”
The law is not at all simple. As Roberts explains, authors have a five-year period in which to exercise the right, but must also provide advance notice at least two years but no more than 10 years before the date of termination. And any case exercising the right — if the publisher fights it — is unlikely to be clear cut. One particular issue is that the book cannot be considered a “work for hire”.
“Copyright lawyer Lloyd Jassin says that some publishers may try to pull a legal ace from their sleeve by pointing to the personal corporations that prominent authors use to license their work. These corporations mean that — technically at least — the author may be ineligible since they are employees of the corporation not authors.
It’s a complicated question. Not to mention, many authors renegotiate contracts periodically throughout their careers, as their profiles increase. It is not clear whether any 1978 contract could be superseded by subsequent contracts, but it seems likely.
In fact, it’s a hopelessly written law, which means that although there’s unlikely to be a flood of lawsuits, there are sure to be some ugly battles. Indeed, there are so many questions to be resolved: for instance, how are European books, whose rights are bought by American publishers, affected? Do translators also receive reversion rights, and are they considered authors or “work for hire”?
Roberts points to the New York Times bestseller list from 1978, and although authors such as Judy Blume and Stephen King could soon cut loose of their publishers, the list doesn’t at first glance reveal devastation to the back lists of many publishers. As year after year authors exercise this right, however, the effects could become significant. Not to mention,
“The threat is amplified as a result of new digital distribution options for authors that were never conceived when the law was passed — these new options mean authors have more leverage to walk away from their publishers altogether.”
Ariel Bogle is a former publicist at Melville House.