Copyright Termination for Authors & Composers

A Passing Opportunity to Break Bad Contracts 


Authors take note. The copyright termination clock is running down. The sands are running out there's much to be done, including calculating termination dates, mailing and recording Notices of Termination. 

Copyright termination rights cannot be waived.  It is a powerful revaluation mechanism that  allows copyright owners (or their heirs) to terminate copyright grants and assignments 35-years after initial publication, provided a Notice of Termination is properly served.  As of this writing (January 2020) works published between 1982 and 1990 can be noticed for termination.  The actual termination date - calculated by the author (or their heirs) can fall anywhere during a five year period starting 35-years from initial publication.

Notices of Termination must be served on the grantee and recorded with the US Copyright before the termination date.  If you don't file the Notice of Termination by a pre-determined date you lose the right and won't be able to get back rights.   
Invisible "Reset" Button
 

Designed to protect authors of older works who in hindsight signed away their rights for less than adequate compensation, Congress devised a "reset" button that wipes out bad copyright contracts.

Provided you satisfy the statutory notice requirements and maneuver properly, you can break any post-1977 copyright contract, provided it isn't a work for hire agreement. 

It's not uncommon for a publisher to offer new and improved terms after receiving a Notice of Termination.  It the negotiation is successful the parties will revoke the old agreement and enter into a new one with improved terms.  

Copyright Termination 101 

The right of termination cannot be waived because copyright law trumps contract law in this instance.   

Termination may be exercised at any time during a period of five years beginning at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever is earlier.” 

The date termination takes effect is determined by the author or their heirs not the Copyright Office.  The Notice of Termination must be sent within a specific time window, between two and 10 years prior to the effective date of termination.  The process is not considered complete until the properly drafted Notice of Termination has been recorded with the Copyright Office, which must be prior to the date of termination.

Example 1: If a book contract was signed in 1978, and the book published that same year, rights could have been recaptured as early 2014, i.e., 35-years after initial publication .  In this instance, the author (or his heirs) would have had to serve a notice of notice of termination in 2004, i.e., ten years before the recapture date.  And, the latest a notice of termination can be sent is 2016 -- two years before the last available termination date.


Like the deed to a home, a Notice of Termination must be filed with the Copyright Office, where it becomes part of the work's chain of title. 

Use It or Lose It 

The rules governing termination are dense.  They can also  be unforgiving.   Calculating the notice and recapture dates is the author or composer's sole responsibility.  The Copyright Office does not provide forms, or much guidance.

Clawing Back Rights to Pre-1978 Works 

While the main focus of this post is on works published post-1977, the Copyright Act also gives creators and their families (if the creator is deceased) an opportunity to terminate grants for pre-1978 works.  This provides for recapture of rights any time during a five year period beginning at the end of 56- and 75-years from the date the copyright was secured. 

Omitted from a Will?  The Act Trumps a Copyright Creator's Will

Sacrosanct as wills may appear, Congress wanted copyrights to go to an author's family according to federal rules -- not state law.   Therefore, a will is not necessarily the final word on who gets to own and control a deceased creator's pre-1978 copyrights.  It's worth repeating.  The Copyright Act, not an author's will dictates who receives the author's copyright interest in death.  Unlike state law will contests, you don't have to prove suspicious circumstances surrounding the drafting of a will to challenge it under the Copyright Act.  

Where a spouse or child has been intentionally or unintentionally omitted from a will (or trust document), the spouse or child (including adopted children or those born out-of-wedlock) are entitled to exercise their termination rights.  Over time, Congress lengthened the original 56-year copyright term to 75-years, and again from 75-years to 95-years.  The recapture rules allow heirs to claim the bonus 39-years copyright Congress tacked onto the original 56-year copyright term.

Another termination quirk, exemplified by example two below, allows family members to recapture a full 67-years of copyright if the creator dies within 28-years of initially publishing the work. 
Example 2. Miles Davis, the jazz icon, died in 1991, before the end of the 28th year of copyright of his revolutionary 1970-album Bitches Brew. Because he died before the 28th year of copyright, his renewal term rights in the song Bitches Brew vested automatically in his four children according to the Copyright Act -- cutting off  his brother, sister and a nephew mentioned in his will. Today, his sons (two of whom were not included in their father's will) and his daughter, jointly control the remaining 67-years of copyright in Bitches Brew and other songs. Here, the Copyright Act rewrote both Miles Davis' will and songwriter agreements.

Similarly, in 1938 Jerry Siegel and Joe Schuster, two young men from Cleveland, Ohio, signed over all of their rights to the Superman character to DC Comics for $130.00 and vague promises of future work.  Starting in 1999, using Section 304 of the Copyright Act, Siegel’s heirs recaptured his rights to the Superman character.  Similarly, the estates of James Baldwin, Truman Capote, William Saroyan, Lorenz Hart, as well as children born out-of-wedlock to creators and composers like Hank Williams, have availed themselves of these valuable rights. 

"To Do" List for Authors & their Families

Review Old Files.  If ever there was a time to review old copyright files, it's now.  If you can, locate copies of old contracts and license agreements.  Make a list of titles and publication dates.  If the author or creator is deceased, compile a list of possible heirs. 

Don't Dawdle.  Doing nothing is not an option.  If you simply do nothing, the termination window will close.   

Copyrighted or Published Before 1978? 

Contact us for a termination screening to determine if you are eligible to recapture your copyrights. 

Contract Signed After 1977?  

Contact us for a termination screening to determine if you are eligible to recapture your copyrights.

Published After 1977?  Contact us for a termination screening to determine if you are eligible to recapture your copyrights. 

Don't sign anything you don't understand.  Contact an attorney.  It's easy to inadvertently waive the termination right.  Regrettably, time-and-money crunches cause some people to basically just say “yes” to what is put in front of them.  Don't be one of those people. Congress provided only one do-over. 

Alert!  If you invoke your termination right, and re-grant rights, you may have to live with that second deal.  That is what happened to Christopher Robin who re-granted rights to Winnie-the-Pooh to Disney in 1983.  That agreement to re-grant rights cut off his daughter's right terminate the original 1930 agreement signed by her grandfather, A.A. Milne.  The lesson in all of this is don't sign anything without consulting a copyright attorney.

Negotiate.  If authors wish to renegotiate the terms of an existing contract, they must wrestle with contract details that seem daunting.  Don't make the same mistake twice.  There is no such thing as a standard agreement.  Contract provisions such as advances, royalty rates, fees, the grant of rights and  territories, the duration of the agreement, the right to create new works based on the old, are all negotiable. If you retain us to represent you, we will negotiate with your original publisher on your behalf. 

Terminate.  Original publisher not an option?  Consider taking control of these rights yourself, or entrusting them to another partner for better terms, including a new advance, higher royalties, catalog promotion, etc.  Again, if you retain us to represent you, or your family members, we will negotiate with your new publisher on your behalf, or help you to set up your own publishing company. 

Don't Assume Your Estate Planning Attorney Understands Any of This.    

Suffice it to say, due to its complexity, and the dearth of case law interpreting the copyright termination statute, it's not surprising that agents, as well as many trusts and estates attorneys, are not conversant in the ins-and-outs of this esoteric topic.  We are happy to work cooperatively with your trusts and estates attorney. 

Maneuvering the Other Complexities

There is also a whole emotional side to copyright termination. These are not just business and financial decisions, but decisions that may involve family members, and the revisiting of past relationships. Fortunately, the invisible copyright "reset" button found in virtually every copyright grant or license, and certain wills, also has the potential to set right injured relationships -- provided the focus is on the future, not past injustices.  

It's Time to Break Bad Contracts and "Bump" Will

With the exception of true "works for hire," it is not hypothetical speculation to say that every author contract entered into on or after January 1, 1978 is vulnerable to termination.  To that end, we can we can: (i) identify which copyrights are eligible for termination; (ii) determine who is the proper party to exercise those termination rights; (iii) prepare and record your Notices of Termination; (iv) assist you recover rights to copyrighted works you thought were irrevocably assigned or bequeathed to others; (v) help you negotiate new, better contracts; and, if requested (vi) work cooperatively with your trusts and estates attorney on reopening an estate.

The opportunity to terminate or renegotiate a copyright grant comes around just once.  Know your rights.  Make the best of that opportunity.   

Resources
Copyright Office Chart Calculating Deadlines For Serving & Recording Notices of Termination

Not Legal Advice.  The information contained in this blog is intended as general advice.  Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information publishing here.  Be aware that the law may vary from state-to-state.  Therefore, this blog cannot replace the advice of an experienced attorney.  No attorney-client relationship is created by your access to or use of this website.   Contacting us by email does not create an attorney-client relationship.  If you wish to establish a professional relationship, it must be done through mutual agreement in writing.  Please do not send us any confidential information until an attorney-client relationship has been established.
LLOYD J. JASSIN is a New York-based publishing and entertainment attorney with a special interest in copyright and trademark matters. He is co-author of The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers (John Wiley &Sons, Inc.)  He has taught publishing courses at New York University-School of Professional Studies.  For a consultation, contact:  Jassin@copylaw.com or at (212) 354-4442. His offices are located at 1501 Broadway, Floor 12, New York, NY 10036. Visit www.copylaw.org.

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