The Copyright Termination Right

Give Me My Copyrights Back!

2013 is a big year in Copyright Law! It will mark the first year that artists and songwriters can recapture their music copyrights using the “Copyright Termination Right”. Already, legendary “old-school” artists such as Kool & the Gang, Roberta Flack, and Peabo Bryson have taken advantage of this important provision in the U.S. Copyright Act.

This article will breakdown the important aspects of the Copyright Termination Right: what it is, who is eligible for it, and how it works.

So, what is the Copyright Termination Right?

The Copyright termination Right or copyright termination is a legal right that provides artists and songwriters with an opportunity to regain ownership of works that they transferred to record labels or music publishers. In other words, artists/songwriters can get their copyrights back and that has a lot of record labels and publishers very nervous!  Copyright termination allows artists the right to terminate any sound recording (masters) and/or music composition assignments and to recapture or regain the copyright ownership of those masters and songs. The termination right trumps any binding language in a written agreement – even if an agreement states that the assignment of the copyright is “in perpetuity.” The copyright termination provision was enacted to give artists a “second bite at the apple” to negotiate better deals then the ones they originally signed when they didn’t have any leverage.

What is the statutory basis for the Copyright Termination Right?

There are two provisions in the Copyright Act that deal with the Copyright Termination Right. Section 304 applies to any copyrighted music compositions existing as of January 1, 1978 or to sound recordings (masters) made between January 2, 1972 and December 31, 1977. Section 203 applies to any assignment or license of copyrighted music compositions or sound recordings executed by an author on or after January 1, 1978.

How does a work created as a “work for hire” affect copyright termination?

Copyright termination does not apply to “works made for hire” or those works created by an employee as part of his or her employment. There is a growing debate within the music industry whether sound recording masters are works made for hire. Not surprisingly, record labels argue that an album should be considered a work made for hire since the multiple parties involved in its creation – songwriters, performing artists, musicians, producers, engineers – are considered “employees” of the record label. Indeed, most recording agreements include a provision defining sound recordings as “works made for hire” pursuant to Section 101 of the Copyright Act.  To underscore this point, last fall, a New York District Court Judge held that several Bob Marley albums were considered works made for hire and therefore ineligible for copyright termination. On the other hand, there is no work for hire provision in major publishing agreements covering music compositions, so this should not be an issue for a songwriter who attempts to regain his or her copyright ownership from a publisher.

Who can effect copyright termination?

Generally speaking, only the author can effect copyright termination; if there are two or more authors, then copyright termination may be effected either by a majority of the authors who executed the copyright grant or to the extent of a particular author’s share in the copyright. If the author is dead, then a surviving spouse, child or grandchild or other interested party can effect copyright termination, depending on the percentage share of ownership interest.

How to Calculate the Copyright Termination Window

You can calculate the copyright termination window in four steps:

1. Determine the effective date of transfer of the rights or the effective date of creation of the song. This information can be found on the copyright registration certificate or through a search of the Copyright Office records.

2. Determine when the window to effect copyright termination opens.

(a)    Under Section 304 (for works created prior to January 1, 1978), the copyright termination window opens at the end of fifty-six (56) years from the date the copyright was originally secured or beginning on January 1, 1978, whichever is later. The copyright termination window remains open for five (5) years from this date. In other words, the copyright can be recaptured within that five (5) year period.  For example, for the Motown hit song “Dear Mr. Postman:” if the copyright was secured in 1961, the window will open in 2017 and the recapture period will close on December 31, 2022.

(b)    Under Section 203 (for works created after January 1, 1978), the copyright termination window opens either 1) at the end of thirty-five (35) years from the date of publication of the work or 2) at the end of forty (40) years from the date of execution of the grant whichever term ends earlier. The copyright termination window remains open for five (5) years.

3. Select a copyright termination date within the five (5) year window. Any date can be chosen so long as it is within the five (5) year copyright termination window.

4. Send the copyright termination notice. The copyright termination notice must be served in writing to the record label or publishing company no more than ten (10) years and no less than two (2) years before the selected copyright termination date. For example, if an artist recorded a song in 1978 and wants to terminate a license in 2013 (thirty-five [35] years later), he should have filed a termination notice between 2003 and 2011. For the copyright termination notice to be effective, it must be filed with the Copyright Office before the effective date of copyright termination.

The recipient of the copyright termination notice can either ignore the notice which will permit the copyright termination to take effect or negotiate a new deal with the artist before the termination window closes. So far, only one artist–Village People singer Victor Willis–has successfully recaptured copyright ownership of his work from his music publisher.

If all if this seems very confusing, that’s because it is!  Make sure to seek the advice of an entertainment attorney for more information.