SUPERSTAR CATALOG SALES OCCURING NOW ARE SUBJECT TO TERMINATION IN 35 YEARS!

      Under the 1976 Copyright Act, the length of copyright protection was extended for the life of the author plus 70 years. However, it also established a right for authors or their heirs to terminate copyright transfers after a certain period of time. In other words, even if an artist or songwriter signed a contract that purports to transfer all rights in a work in perpetuity, even if the artist or songwriter is “unrecouped”, the Copyright Act provides that the author can terminate that grant and demand that the rights revert in a shorter period of time. Recording artists and songwriters have been terminating their contractual transfers and demanding back control of their copyrights. As anyone reading the headlines is aware, numerous superstar artists and songwriters (e.g., Bob Dylan, Bruce Springsteen, Sting, etc.) have sold their entire catalogs to third parties for enormous sums. However, it does not appear that the 1976 Copyright Act sets forth any limit on how many times an author is entitled to terminate the transfer of copyrights – which would seem to indicate that 35 years from now these superstars (or, more likely, their heirs) will be entitled to again terminate the contractual transfer and regain the copyrights under Section 203 of the Copyright Act.

     Generally speaking under the Copyright Act, for copyright grants made on or after January 1, 1978 (the effective date of the 1976 Copyright Act) the termination period is 35 years under Section 203 of the law. For grants by an author on or after 1978, termination must be exercised prior to the 5 year period beginning at the end of 35 years from the execution of the grant. Although there are certain formalities which must be complied with to effectuate termination of the transfer, this essentially means that recording artists and songwriters were entitled to exercise their rights of termination on post-1978 works as of the start of 2013. Current headlines announce that many superstars have done precisely that, and then turned around and sold their music catalogs for millions of dollars. Although under Section 203 heirs who execute such a grant post-1978 cannot reclaim those rights again (e.g., Prince's estate), grants executed by an author on or after January 1, 1978 (including recent catalog sales by Dylan, Springsteen, Sting, etc.) do appear that they can be recaptured again after 35 years. 

    As a matter of music business history, back when the 1976 Copyright Act was drafted, few practitioners would have envisioned a world where the artists might not need the record companies to finance, manufacture, warehouse and distribute their physical records. Back then the expectation was that, although any particular artist could exercise the termination right, what would effectively happen is that the label and artist would simply be forced to renegotiate a deal to continue working together (either with the artist or with the heirs of the deceased songwriter or artist). Now, in the current digital transmission age, this is no longer necessarily true. Any artist can demand back the copyright in the masters and then simply offer them directly to fans on the artist’s website or the artist can license the rights to an online aggregator or digital streaming service with little or no expense. This is particularly true in the case of the recordings of certain well-established artists because those artists would not need the record company’s ongoing support to finance the recording costs to create new recordings, store their product nor require the funds for promotion and marketing. High profile artists with established fan bases and large catalogs of music like Blondie, the Cars, Bruce Springsteen and others have no need for much in the way of advertising and marketing, and there is no longer a need for manufacturing, distributing or warehousing of their product. Simple ownership and possession of the digitized masters is sufficient to conduct business.

     It is noteworthy that, unlike song publishing contracts which generally provide for the assignment and transfer of a song copyright to the publisher, most record contracts have provided that the sound recording is created as a “work for hire” for the record label. Under the 1976 Copyright Act the termination provision is not applicable to certain types of copyrights, including a genuine “work for hire” grant. However, this does not preclude recording artists from exercising their right of termination. Sound recordings are not listed under section §101(2) which identifies various works that constitute a work for hire. Moreover, several years ago I litigated a case, Ballas v. Tedesco (41 F.Supp.2d 531 (D.C.N.J. 1999)), where a New Jersey Federal District Court addressed this issue and Judge Greenaway held that the sound recording in that case did not qualify as a work for hire. There is a great deal of case law addressing the applicable legal employer/employee issues involved including those established in the seminal Supreme Court case Community For Creative Non-Violence, 490 U.S. at 738, 109 S.Ct. 2166 which held that a statue did not satisfy the terms of §101(2) because it "does not fit within any of the nine categories of ‘specially ordered or commissioned' works enumerated in that subsection, and no written agreement between the parties establishes [the statue] as a work for hire.” Most case law that addresses the subject of “work for hire” holds that whether a work created by an employee is a work for hire or not depends on various factors as well as the circumstances of the relationship - and not just the language of the contract. This area of law has been ripe for dispute by any recording artist who tries to exercise termination rights against a record company that resists the claim where the facts suggest that no genuine “work for hire” relationship ever existed.

     Many superstar artists and songwriters have exercised their termination rights under the 1976 Copyright Act, regained their catalogs, and then made multi-million dollar deals to sell the catalogs. Current copyright law provides that the a copyright extends for the life of the author plus 70 years, so 35 years from now Section 203 of that same 1976 Copyright Act may allow the heirs of those superstars to terminate these current transfers, regain the catalogs, and start the whole process again resulting in more remuneration generated from the copyrights.

Wallace Collins is a New York lawyer practicing primarily in the area of entertainment law. He was a recording artist for Epic Records before attending Fordham Law School. www.wallacecollins.com

 

SOUND RECORDING AND SONG PUBLISHING TERMINATION RIGHTS UNDER U.S. COPYRIGHT LAW

      The 1976 Copyright Act provides for the termination of copyright transfers. Even if an artist or songwriter signed a contract with a record company or music publisher which purports to transfer all rights in a work in perpetuity, the Copyright Act provides that the author can terminate that grant and demand that the rights revert to the author in a shorter period of time. Recording artists and songwriters are now entitled to terminate their contractual transfers and demand back control of their copyrights; songwriters can demand return of their musical compositions from music publishers and recording artists and record producers can demand return of their sound recordings from the record companies.

     Generally speaking, for copyright grants made on or after January 1, 1978 (the effective date of the 1976 Copyright Act) the termination period is 35 years under Section 203 of the Copyright Act. For pre-1978 works the termination period is 56 years after copyright was originally secured under Section 304 (c)-(d). For grants on or after 1978, termination may be exercised anytime during a 5 year period beginning at the end of 35 years from the execution of the grant or, if the grant concerns the right of publication of the work, then the period begins on the sooner of 35 years after publication or 40 years after execution of the grant. Although there are certain formalities which must be complied with to effectuate transfer, this essentially means that recording artists and songwriters were entitled to start exercising their right of termination on post-1978 works as of the start of 2013.  

     Not unexpectedly, the record companies as well as the music publishers are not pleased with the copyright termination provision and the inevitable ramifications thereof. With respect to songs and music publishers, some seminal cases have already been decided. In Scorpio Music S.A. v. Willis (11 CV 1557 (C.D. CA 2012), California Federal District Judge Moskowitz determined that original Village People member, Victor Willis, could terminate his transfers and recapture a direct copyright interest in many of his group's songs, including "YMCA."  In this case, after Willis notified Scorpio that he was terminating the prior transfers, Scorpio sued arguing that Willis could not terminate because a majority of each song's authors had not also agreed to terminate their transfers. The court sided with Willis, ruling that an author can unilaterally terminate the transfer of his share in a copyrighted work without his co-writers. Willis stands to become the undivided owner of a one-half to one-third interest in 33 song copyrights. Although the Scorpio decision addressed a fairly narrow point concerning multi-author transfers, the decision sets the stage for the bigger battles looming on the recorded music side of the business. The same termination procedures apply to all copyrighted works, including the separate and equally lucrative sound recording copyrights transferred to record labels as part of typical recording artist contracts over the years.

     Back when the 1976 Copyright Act was drafted, few practitioners would have envisioned a world where the artists might not need the record companies to finance, manufacture, warehouse and distribute their records. Back then the expectation was that, although any particular artist could exercise the termination right, what would effectively happen is that the label and artist would simply be forced to renegotiate a deal to continue working together (either with the artist or with the heirs of the deceased songwriter or artist). Now, in the current digital transmission age, this is no longer necessarily true. Any artist can demand back the copyright in the masters and then simply offer them directly to fans on the artist’s website or the artist can license the rights to an online aggregator or digital streaming service with little or no expense. This is particularly true in the case of the recordings of certain well-established artists because those artists would not need the record company’s ongoing support to finance the recording costs to create recordings, store product nor require the funds for promotion and marketing. The more digital the music business becomes the more obsolete the large record labels may become for established artists. High profile artists with established fan bases and large catalogs of music like Blondie, the Cars, Bruce Springsteen and others would have no need for much in the way of advertising and marketing, and no need for manufacturing, distributing or warehousing of their product. Simple ownership and possession of the digitized masters would be sufficient to conduct business.

      Unlike song publishing contracts which generally provide for the assignment and transfer of a song copyright to the publisher, most record contracts provide that the sound recording is created as a “work for hire” for the record label. Under the 1976 Copyright Act the termination provision is not applicable to certain types of copyrights, including a genuine “work for hire” grant. However, this does not preclude recording artists from exercising their right of termination. Sound recordings are not listed under section §101(2) which identifies various works that constitute a work for hire. Moreover, several years ago I litigated a case, Ballas v. Tedesco (41 F.Supp.2d 531 (D.C.N.J. 1999)), where a New Jersey Federal District Court addressed this issue and Judge Greenaway held that the sound recording in that case did not qualify as a work for hire. There is a great deal of case law addressing the applicable legal employer/employee issues involved including those established in the seminal Supreme Court case Community For Creative Non-Violence, 490 U.S. at 738, 109 S.Ct. 2166 ("CCNV") which held that a statue did not satisfy the terms of §101(2) because it "does not fit within any of the nine categories of ‘specially ordered or commissioned' works enumerated in that subsection, and no written agreement between the parties establishes [the statue] as a work for hire.” Most case law that addresses the subject of “work for hire” holds that whether a work created by an employee is a work for hire or not depends on various factors as well as the circumstances of the relationship - and not just the language of the contract. This area of law appears to be ripe for litigation by recording artists who want to exercise their termination rights where the facts suggest that no genuine work-for-hire relationship ever existed. 

    From what I have researched, it appears that in most cases the artist has a fair likelihood of prevailing over the record company on this point when the CCNV "work for hire" factors are applied (i.e., artist not an employee (e.g., no unemployment benefits paid/withheld, etc.), artist not under the direct supervision and control of the record company during the creative process, etc.) - so I expect that the record companies will make a decision to negotiate with the bigger superstar artists and then turn the other cheek with the recordings generating less income and just let them revert back to the artists (since a bad precedent in a lawsuit could open the floodgates for other artists to demand back their masters).

     The termination rights of an artist or songwriter are generally subject to a 5 year window. Termination must be made effective within the termination window or the right to terminate the grant is forfeited. To be effective, the artist or songwriter must serve a written notice of termination on the original record company or publisher (and/or any successors) no more than 10 and no less than 2 years prior to the effective date stated in the notice. The notice of termination must state the effective date of termination. Perfection of the termination requires that a copy of the written notice also be filed with the U.S. Copyright Office prior to the effective date of termination.

     Although the termination rights of an artist under the 1976 Copyright Act would only be effective for the U.S. territory, the size of the U.S. consumer market for recorded music still makes this a valuable right to reclaim. However, what is good for the artists and creators might further erode the influence of the major record labels and prove detrimental to them as music industry powerhouses in the future.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a songwriter and recording artist for Epic Records before attending Fordham Law School. T: (212)661-3656 www.wallacecollins.com

URGENT WARNING!: TIME IS RUNNING OUT FOR SOME CREATORS TO EXERCISE THEIR TERMINATION RIGHTS UNDER U.S. COPYRIGHT LAW

The 1976 Copyright Act provides for the termination of copyright transfers – but creators need to act within a limited timeframe. Copyright creators are entitled to reclaim their copyrights regardless of any contract stating otherwise after certain time periods. Therefore, even if an author, artist, musician, photographer or songwriter signed a contract which purports to transfer all rights in a work for perpetuity, the Copyright Act provides that the author of the work can terminate that grant and demand that the rights revert. Authors and creators are now entitled to terminate their contractual transfers and demand back control of their copyrights; authors can terminate their book publishing contracts, songwriters can demand return of their musical compositions from music publishers and recording artists and record producers can demand return of their sound recordings from the record companies.

There is, however, a limited time to act. The author must send a notice for a termination date within a five-year window (starting at the end of 56 years for pre-1978 copyrights transfers and after 35 years for transfers made after January 1, 1978), or the right to terminate is lost forever. Time is running out for many copyrights. For example, as of 2017 the right to terminate everything from 1978 through 1979 (e.g., 1978+35+5) as well as copyrights transferred prior to 1956 (e.g., 1956+56+5) is disappearing.

      

According to the law, for copyright grants made on or after January 1, 1978 (the effective date of the 1976 Copyright Act) the termination period is 35 years under Section 203 of the Copyright Act. For pre-1978 works Section 304(c) of the Copyright Act, says that a copyright owner (or his or her heirs) can terminate all grants, licenses or transfers of beginning on the 56th year after that assignment was made. Termination may be exercised anytime during a 5 year period beginning at the end of either the 35 year or 56 year period from the execution of the grant or, if the pre-1978 grant concerns the right of publication of the work, then the period begins on the sooner of 35 years after publication or 40 years after execution of the grant. Although there are certain formalities which must be complied with to effectuate transfer, this essentially means that recording artists and songwriters were entitled to start exercising their right of termination on post-1978 works as of the start of 2013.  

In the recorded music industry the big exception to the termination right is if a work was done as a "work-for-hire.” Section 101 of the Copyright Act of 1976 delineates what types of works by their nature are incontestably works for hire. It is essentially a two part test: (1) was the work created by an employee within the scope of his or her employment, and; (2) if not, is it (a) one of the nine enumerated work-for-hire classes of works and (b) is there a written agreement signed by the author acknowledging the work for hire relationship. Included on the list of nine enumerated categories of works for hire are compilations, motion pictures and some other categories of media. Not included on this list are books, photographs, songs and sound recordings.

There are ongoing legal battles over how termination rights affect the book, comic book and motion picture fields. Not unexpectedly, in the music business the record companies as well as the music publishers are not pleased with the copyright termination provision and the inevitable ramifications thereof. With respect to songs and music publishers, some litigation has already been decided. In Scorpio Music S.A. v. Willis (Case No. 11 CV 1557 (C.D. CA 2012), California Federal District Judge Moskowitz determined that original Village People member, Victor Willis, could terminate his transfers and recapture a direct copyright interest in many of his group's songs, including "YMCA."  In this case, after Willis notified Scorpio that he was terminating the prior transfers, Scorpio sued arguing that Willis could not terminate because a majority of each song's authors had not also agreed to terminate their transfers. The court sided with Willis, ruling that an author can unilaterally terminate the transfer of his share in a copyrighted work without his co-writers. Willis stands to become the undivided owner of a one-half to one-third interest in 33 song copyrights.

Although the Scorpio decision addressed a fairly narrow point concerning multi-author transfers, the decision opens the way for most songwriters to get their composition copyrights returned and sets the stage for the bigger battles looming on the recorded music side of the business. The copyright termination procedures apply to the separate and equally lucrative sound recording copyrights transferred to record labels as part of typical recording artist contracts over the years. Since the term “sound recordings” is not explicitly contained in the enumerated categories list, practitioners representing record companies will need to try to find other ways to justify any claim that sound recordings are indeed works for hire in order to preclude termination by artists.

The termination rights of the author of a copyrighted work are generally subject to a 5 year window. Termination must be made effective within the termination window or the right to terminate the grant is forfeited. To be effective, the author must serve a written notice of termination on the original record company or publisher (and/or any successors) no more than 10 and no less than 2 years prior to the effective date stated in the notice. The notice of termination must state the effective date of termination. Perfection of the termination requires that a copy of the written notice also be filed with the U.S. Copyright Office prior to the effective date of termination.

Although the termination rights of an artist under the 1976 Copyright Act would only be effective for the U.S. territory, the size of the U.S. consumer market still makes this a valuable right to reclaim. As they saying goes, speak now or forever hold your peace!

Wallace Collins is a New York lawyer practicing primarily in the areas of entertainment, copyright, trademark and internet law. He was a recording artist for Epic Records before attending Fordham Law School. T:(212)661-3656; www.wallacecollins.com

McCARTNEY's SONY/ATV LAWSUIT MORE OF THE RIPPLE EFFECT FROM COPYRIGHT TERMINATIONS UNDER U.S. COPYRIGHT LAW.

Just as the music business has been staggering back to its feet after the digital assault started by Napster over a decade ago, another hard blow to the industry business model is starting to have ripple effects. Recording artists and songwriters from 1978 and after are now entitled to start terminating their contractual transfers and demanding back their copyrights. The 1976 Copyright Act, in a provision that has generally been overlooked until now, provides for the termination of copyright transfers. Even if an artist or songwriter signed a contract that purports to transfer all rights in a work in perpetuity, the Copyright Act provides that the author can terminate that grant and demand that the rights revert to the author in a shorter period of time. This is a great opportunity for artists and songwriters to get a second bite at the apple, so to speak, and get a better share of the income earned from their creative works.

Paul McCartney has filed suit in New York against Sony/ATV and is looking to get a declaratory judgment that states he will soon regain his copyright ownership share to his catalog of songs created as a member of The Beatles. In what could become one of the most important legal battles in the music industry this decade, he is looking to leverage the termination provisions of the Copyright Act. McCartney’s lawsuit states that he has been serving and recording termination notices for nearly a decade and now expects to recover copyright interests as soon as October 5, 2018. The complaint states that “For years following service of the first Termination Notices, Defendants gave no indication to Paul McCartney that they contested the efficacy of Paul McCartney’s Termination Notices,” states the complaint. What a declaratory judgment seeks is a ruling from the Court confirming that McCartney is entitled to return of his copyrights as per US Copyright law. Although the Copyright Act is aimed at US-based artists and authors, and this case raises some issues of how applicable it is to a UK-based artist, the more important issue here is that McCartney is taking the battle of the effectiveness of termination notices directly to a major company in a away that less well-positioned artists have not done until now.

Generally speaking, for copyright grants made on or after January 1, 1978 (the effective date of the 1976 Copyright Act) the termination period is 35 years under Section 203 of the Copyright Act. For pre-1978 works the termination period is 56 years after copyright was originally secured under Section 304. For grants on or after 1978, termination may be exercised anytime during a 5 year period beginning at the end of 35 years from the execution of the grant or, if the grant concerns the right of publication of the work, then the period begins on the sooner of 35 years after publication or 40 years after execution of the grant. Although there are certain formalities which must be complied with to effectuate transfer, this essentially means that recording artists and songwriters can start exercising their right of termination as soon as 2013 – which may effectively decimate many record company and music publishing catalogs.  

Back when the 1976 Copyright Act was drafted few could envision a world where the artists and songwriters might not need the music publishers or record companies to finance, manufacture, promote, store and distribute their records. Back then the expectation was that, although any particular artist could exercise the termination right, what would effectively happen is that the label and artist would simply be forced to renegotiate a deal to continue working together. Now in the digital age, however, this is no longer true. A songwriter like McCartney can demand back his copyrights and then arrange for administration and collection of the income himself, a much more beneficial arrangement for the songwriter. Likewise, although not addressed in McCartney's lawsuit, an artist can demand back its masters and then simply offer them on the artist's own website or license the rights to an online aggregator with little or no expense. This is particularly true in the case of well-established artists with a large catalog of recordings since the artist would not even need the record company to finance recording costs nor promote the records. The more digital the music business becomes the more obsolete the large labels and publishers may become for established artists. High profile artists with already established fan bases and large catalogs probably have no need for much in the way of advertising and marketing of their recordings, and certainly no need for manufacturing, distributing or warehousing of the product. Simple ownership and possession of the digitized masters would be sufficient.

By way of simple explanation, the termination rights of an artist or songwriter are generally subject to a 5 year window. Termination must be made effective within the termination window or the right to terminate the grant is forfeited. To be effective, the artist or songwriter must serve a written notice of termination on the original record company or publisher (or its successor) no more than 10 and no less than 2 years prior to the effective date stated in the notice. The notice of termination must state the effective date of termination. Perfection of the termination requires that a copy of the written notice also be filed with the U.S. Copyright Office prior to the effective date of termination

McCartney's lawsuit involves only the song copyrights, but all eyes will be on McCartney’s lawsuit to determine the effectiveness of notices under US copyright law.

Wallace Collins is a New York lawyer specializing in entertainment, copyright, trademark and internet law who is handling copyright terminations for many legacy artists and songwriters. He was a recording artist for Epic Records before attending Fordham Law School. T:(212) 661-3656; www.wallacecollins.com

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BEWARE: Recent Decision in CBS Lawsuit Over Pre-1972 Sound Recording Could Wreak Havoc In The Copyright World

The recording artist and songwriter communities should take note of a recent decision in ABS Entertainment, Inc. v. CBS Corporation, et al., a case concerning pre-1972 copyrights - and raise an outcry! The Judge in this case held that remastered versions of old songs are entitled to a new copyright and owners of the originals are not allowed to stop the public performance of them.

Over the past few years, the public performance of songs authored before sound recordings fell under Federal copyright law has become a contentious legal issue. This ABS v. CBS ruling could help immunize terrestrial radio operators and others from lawsuits and disturb many preconceived notions about copyright law. The case arose from a dispute between ABS, owner of recordings by Al Green and others, and CBS Radio, which was dragged into court in this case after other plaintiffs had been successful litigating the theory that pre-1972 songs are protected under State law and could not be broadcast without permission. The ABS lawsuit cut against decades of precedent that songs on the radio served promotional purposes and should not generate compensation for owners. As times have changed, with sales becoming less meaningful to artists, owners have pushed lawsuits and lobbying efforts to shake up the system.

As its defense to the ABS lawsuit, CBS argued that it was not broadcasting the original analog recordings but rather remastered versions that came out after 1972. Under this specious argument, the specifically performed works would not be protected by State law and CBS would not have to pay anything. ABS argued that what sound engineers accomplish by tweaking timbre, balance and loudness is "mechanical" and not sufficiently original to be entitled to copyright protection. ABS further argued that to accept otherwise would mean owners of sound recordings would enjoy perpetual copyright over works.

Incredibly, the Judge accepted the position of CBS. On the issue of originality, the Judge gave credence to the CBS expert, an acoustic engineer and research scientist specializing in forensic investigation of audio evidence, and held that the plaintiffs' pre-1972 sound recordings "have undergone sufficient changes during the remastering process to qualify for federal copyright protection," adding that ABS did not offer sufficient evidence to even make this a contestable point for a jury to decide.  As a specific example, the Judge referred to the remastered version of Ace Cannon's 1961 recording "Tuff," which the expert found had additional reverberation, was played in a different musical key and at a faster tempo. The Judge accepted the proposition that these were not merely “mechanical changes or processes ... such as a change in format, de-clicking and noise reduction,” nor were the changes “trivial,” making note of the fact that experienced sound engineers were brought in for a reason. "Instead, the changes reflect 'multiple kinds of creative authorship, such as adjustments of equalization, sound editing and channel assignment,'” he writes. ABS also tried to argue that sound recordings authored before 1972 cannot serve as a "pre-existing work" for a later derivative work, but the Judge found that argument to be unpersuasive. And so, for now, based on this decision, the remastered versions are independently copyrightable.

The holding in this case determined that for some of the recordings in dispute, such as Green's "Let's Stay Together" and Jackie Wilson's "I'm Coming on Back to You": there is no disagreement that the version publicly performed is different from the pre-1972 versions; that for other songs there is no genuine dispute that CBS is performing the post-1972 versions; and that for the remaining songs ABS failed to offer up sufficient evidence that CBS is performing pre-1972 versions. It all adds up to huge victory for CBS as well as roadmap for how radio can publicly perform older sound recordings without liability... and it is a horrific, although hopefully temporary, decision for the recording  artist community.

Hopefully, this decision will be overturned on appeal so as not to wreak havoc on issues of copyright term, termination rights and its singular determination that sound engineers do copyrightable work when they remaster sound recordings.

* Wallace Collins is an entertainment lawyer and intellectual property attorney. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. T: (212) 661-3656; www.wallacecollins.com 

HOW DO I GET MY RIGHTS BACK: TERMINATION RIGHTS UNDER U.S. COPYRIGHT LAW

     The 1976 Copyright Act provides for the termination of copyright transfers. It entitles content creators to reclaim their copyrights - regardless of any contract stating otherwise –after certain time periods. So, even if an author, artist, musician, photographer or songwriter signed a contract which purports to transfer all rights in a work for perpetuity, the Copyright Act provides that the author of the work (or the author's heirs) can terminate that grant and demand that the rights revert in a shorter period of time. Authors and creators are now entitled to terminate their contractual transfers and demand back control of their copyrights: authors can terminate their book publishing contracts, songwriters can demand return of their musical compositions from music publishers and recording artists and record producers can demand return of their sound recordings from the record companies.

            

   Generally speaking, for copyright grants made on or after January 1, 1978 (the effective date of the 1976 Copyright Act) the termination period is 35 years under Section 203 of the Copyright Act. For pre-1978 works Section 304(c) of the Copyright Act, says that a copyright owner (or his or her heirs) can terminate all grants, licenses or transfers of beginning on the 56th year after that assignment was made. Termination may be exercised anytime during a 5 year period beginning at the end of either the 35 year or 56 year period from the execution of the grant (as applicable) or, if the pre-1978 grant concerns the right of publication of the work, then the period begins on the sooner of 35 years after publication or 40 years after execution of the grant. Although there are certain formalities which must be complied with to effectuate transfer, this essentially means that recording artists and songwriters were entitled to start exercising their right of termination on post-1978 works as of the start of 2013. 

       The big exception to the termination right is if a work was done as a "work-for-hire.” Section 101 of the Copyright Act of 1976 delineates what types of works by their nature are incontestably works for hire. It is essentially a two part test: (1) was the work created by an employee within the scope of his or her employment, and; (2) if not, is it (a) one of the nine enumerated work-for-hire classes of works and (b) is there a written agreement signed by the author acknowledging the work for hire relationship. Included on the list of nine enumerated categories of works that are works for hire are collective works, compilations and motion pictures. Not included on this list are books, photographs, songs and sound recordings.

       There are ongoing legal battles over how termination rights affect the book, comic book and motion picture fields. Not unexpectedly, the entertainment business companies are not pleased with the copyright termination provision and the inevitable ramifications thereof.

       With respect to songs and music publishers, some litigation has already been decided. In Scorpio Music S.A. v. Willis (Case No. 11 CV 1557 (C.D. CA 2012), California Federal District Judge Moskowitz determined that original Village People member, Victor Willis, could terminate his transfers and recapture a direct copyright interest in many of his group's songs, including "YMCA." In this case, after Willis notified Scorpio that he was terminating the prior transfers, Scorpio sued arguing that Willis could not terminate because a majority of each song's authors had not also agreed to terminate their transfers. The court sided with Willis, ruling that an author can unilaterally terminate the transfer of his share in a copyrighted work without his co-writers.  Although the Scorpio decision addressed a fairly narrow point concerning multi-author transfers, the decision opens the way for most songwriters to get their composition copyrights returned and sets the stage for the bigger battles looming on the recorded music side of the business. The copyright termination procedures apply to the separate and equally lucrative sound recording copyrights transferred to record labels as part of typical recording artist contracts over the years. Since the term “sound recordings” is not explicitly contained in the enumerated work for hire category list, practitioners representing record companies will need to try to find other ways to justify any claim that sound recordings are indeed works for hire in order to preclude termination by artists.

       The termination rights of the author or creator of a copyrighted work are generally subject to a 5 year window. Termination must be made effective within the termination window or the right to terminate the grant is forfeited. To be effective, the author must serve a written notice of termination on the original record company or publisher (and/or any successors) no more than 10 and no less than 2 years prior to the effective date stated in the notice. The notice of termination must state the effective date of termination. Perfection of the termination requires that a copy of the written notice also be filed with the U.S. Copyright Office prior to the effective date of termination.

       Although the termination rights of an artist under the 1976 Copyright Act would only be effective for the U.S. territory, the size of the U.S. consumer market still makes this a valuable right to reclaim. 

Wallace Collins is an entertainment and intellectual property lawyer based in New York. He was a songwriter and teenage recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656;  www.wallacecollins.com