The termination provisions of Section 203(a) of the Copyright Act are complicated enough when a work in question is finished before the contract in which a grant is made. In those instances, the date of execution of the grant, which is needed to calculate when a termination notice can be sent, is relatively easy to determine. But the analysis of termination timing becomes more complicated when the work is created after the contract is signed. This is not only because the date of creation can be difficult to pinpoint, but also because a recent ruling in the Southern District enhances that date’s significance.

Judge Lewis A. Kaplan in Waite v. UMG Recordings (S.D.N.Y., 19-cv-1091 [LAK]) held that in the context of “gap” grants, the date of creation determines the date of “execution” of the grant—which in turn dictates when notices of termination can be served as well as the timing of the five-year window during which terminations can be given effect. The implication is that for every grant of rights in sound recordings and other works that come into being after a grant, the date of the grant is not enough to calculate when termination is permitted to occur; the date the work is created is also key. (Another implication is that some recording artists and other authors who made pre-1982 grants and thought their time to send a termination notice had expired might still have a chance.)

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