Generally, the beginning and ending of the termination period should be based on the date of publication rather than the date of execution if the work was published less than five years after the date of execution. Conversely, if the work was never published under the grant or if the work was published more than five years after the grant was executed, the termination period should be based on the date of execution rather than the date of publication. The following chart may be useful in making this determination:
1.
Identify the month, day, and year that the grant was executed.
2.
Identify the month, day, and year that the work was published under the grant.
3.
Add forty years to the date of execution identified in line 1.
4.
Add thirty-five years to the date of publication identified in line 2.
Is the date identified in line 3 earlier than the date identified in line 4? If so, the beginning and ending of the termination period should be calculated using the date that the grant was executed.
Is the date identified in line 4 earlier than the date identified in line 3? If so, the beginning and ending of the termination period should be calculated using the date that the work was published under the grant.
The Office has developed a set of tables that may be useful in identifying the beginning and ending of the termination period for a grant involving the right of publication. These tables also may be useful in selecting an effective date of termination and for calculating the relevant deadlines for serving a notice of termination on the grantee and for recording the notice with the Office.
• If the termination period is based on the date that the grant was executed, the following table should be used: copyright.gov/comp3/docs/termination-table- section203de.pdf.
• If the termination period is based on the date that the work was published under the grant, the following table should be used: copyright.gov/comp3/docs/termination- table-section203dp.pdf.
2310.3(C)(3) Gap Grants
What if the author signed a written agreement or entered into an oral agreement before January 1, 1978 involving a work that was created on or after that date? These types of grants are known as "gap grants."
As discussed above, Section 203 applies to grants executed by the author on or after January 1, 1978. The Office has concluded that gap grants may be terminated under this provision, "because as a matter of copyright law, a transfer that predates the existence
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