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Here is what you need to know, to have a basic understanding as to how this works, and whether your works are subject to the termination laws:
- There are two basic statutes of the Copyright Act in which the law of termination has been established.
- First, and the law that is more prominent at the present time, is Section 203. Also known as the “35-year law,” it allows for the termination of BOTH grants of rights in post-1977 sound recordings (i.e., record contracts) AND musical compositions (publishing agreements, co-publishing agreements, administration agreements, licenses, etc.) 35 years after publication of the work.
- Second, the older law, Section 304(c), presently ONLY covers musical compositions (and not sound recordings) registered prior to 1978, and it affects copyrights 56 years after the date of copyright. For instance, if you wrote a song in 1965 (and registered for copyright on a date in 1965), 56 years after that is 2022, so you could send a notice now, for termination in 2022. This is the law currently being utilized by Paul McCartney to terminate Sony’s right in 50% of a whole list of Beatles songs. (The law will also cover sound recordings registered from February 15, 1972 to December 31, 1977, but we’re just not there yet.) In any event, this law is very important, and we are just getting started with terminations of the great songs of the 1960s! There is still a lot of time left.
- If either of these laws describe your works, it is time to act!
- The termination is effective with regard to the US copyright only. There is no effect on foreign copyrights, or the arrangement that you have with regard to foreign territories. For instance, if you have a worldwide publishing deal from 1979, you can terminate the grant to that publisher, but you only get back the US copyright, and the original grantee keeps all other countries, including Canada.
- This is because copyrights are "divisible by territory,” as we say. So, while copyrights are not often discussed in such terms, every musical work created has a US copyright, regardless of where it was created, registered, or published. For instance, a British album released on a British label in 1979 and never released in the US nevertheless has a US copyright; it can be terminated, but only with regard to the US. That same album has a British copyright, a German copyright, an Australian copyright, etc. But those other countries are not affected by our law, just as the copyright law of those countries cannot affect our US copyright (see related discussion on the recent Duran Duran case!).
- This also means that it doesn’t matter where the contract was signed, the language in which it was written, or what “choice of law” is stated in the contract.
- Also, you need not worry whether the work was registered in the US Copyright Office, back when the work was created. The law covers works regardless if they were ever published or sold in the US, or registered in the US.
- The nationality of the recording artist or songwriter is irrelevant. You can be any nationality, and still own a US copyright.
- With regard to joint works, a majority of authors of the song must sign the termination. With regard to bands, a majority of recording artists on that particular album must sign. Here, it gets a little tricky, especially if some people are hard to find, or if their share is now represented by widows, children, or other successors. But the problems are rarely insurmountable, and solutions require careful research.
- With regard to deceased authors and recording artists, there are special rules with regard to who can sign the notice. Local laws with regard to heirs, executors, probate, estates, etc. do not apply. This is because copyright law is federal law, and it overrides state law (or foreign law) on these issues.
- There is a two-year notice period after you send the Notice of Termination, and during this time, before the Termination becomes effective, ONLY the grantee (that is, usually the record company or the music publishing company) has the right to try to make a deal with you for what happens after the effective date of termination. It’s sort of a statutory “right of first refusal,” built into this whole process. You can make a deal, or not. It’s up to you.
- The Notice of Termination MUST be sent no less than two years, but no more than ten years, prior to the effective date of termination.
- The effective date of termination, under Section 203, is a date that is any date that is not less than 35 years after the publication of the work (anywhere, not just in the United States), or later than five years after the end of the 35 years. So, there is a five-year window.
- Sending the Notice of Termination is only the first step. Recording the Notice is the equally important second step, in the US Copyright Office in Washington, D.C. There is a modest fee that must be paid to the Copyright Office for this recordation, but without recordation, the termination is not valid. The recordation must take place before the effective date of termination, so there is two years to get that part done. Nevertheless, it is important to send it in soon, because the Copyright Office may have issues with the Notice, and these errors would need to be corrected.
- We have experience in all of these areas, and we are confident that we can handle any situation.
- These laws were enacted for YOU, the creative artist. BUT — Do you think the “powers that be” in the music business want you to know about them? Of course not. The major labels don’t. The mega publishers, like Sony, Universal, Warner-Chappel, etc. don’t. The RIAA does not. ASCAP and BMI? We don’t think so, or else they would be holding seminars by now! No one at these big companies wants YOU to know about how to terminate the grants of copyright YOU made 35 years ago!
Please note that although our company is operated at a law firm, none of the statements we have made on this website are intended to create an attorney-client relationship, unless and until we agree to provide services to you and you agree to accept those services. This website is intended for informational purposes only.
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