Some of the terminology around copyright can seem confusing at first. Here are few basic\u00a0definitions.<\/p>\n
- \n
- Grant<\/em><\/strong>: the agreement of transferring or licensing your copyrights to an outside entity in exchange for a monetary advance or other\u00a0consideration.<\/li>\n
- Termination<\/em><\/strong>: also known as \u201creversion\u201d; your right as an author of a creative work to recapture your copyright after a set period of\u00a0time.<\/li>\n
- Execution of grant<\/em><\/strong>: generally, when the original transfer of your copyright(s) took place. The Copyright Office has recently stated that a grant cannot be \u201cexecuted\u201d until a work is created. Specifically, the\u00a0execution of grant<\/em>\u00a0is the date the grant transfer was made for an existing work or the date of its creation; whichever is\u00a0later.<\/li>\n
- Date of publication<\/em><\/strong>: Generally, publication occurs on the date on which copies of the work are first made available to the public.<\/li>\n<\/ul>\n
Why do creators have this right?<\/strong>
\nIt is often difficult to determine the worth of a creative work at the time of its creation. Because the value is unknown, musicians and songwriters will not be in the most advantageous position when negotiating what labels and publishers will pay for commercially exploiting their work. Thus, Congress made a policy decision to give authors an opportunity to regain ownership of their copyrights and entertain new, potentially more lucrative licenses for their work. Creators may also choose to re-transfer their copyright(s) under more favorable licensing terms. Consider also that changes in the marketplace can increase the range of potential uses for a piece of music, which may not have existed at the time of its creation. For example, few could have anticipated the explosion of console video games and \u201csynch\u201d opportunities. In addition, artists can now \u201cgo direct,\u201d selling music directly to fans without the high barriers to entry common to the historic marketplace. There are surely new platforms for music that have yet to arrive, so it is important that artists have the ability to directly participate in revenue streams generated by potential new\u00a0uses.<\/p>\nSection 203 of the Copyright Act permits authors (songwriters and recording artists) to\u00a0terminate<\/strong>\u00a0deals that they made transferring or licensing their copyrights after 35 years. Meaning, if you transferred your recording or song to a record label or publisher at the beginning of your career or licensed certain rights, you may be eligible to regain ownership or terminate the licenses after this period. Artists may have more leverage than they did at the time that they signed away their copyright(s), and using this leverage, artists could re-grant their copyrights in a better deal or recapture ownership for the purpose of licensing\u00a0directly.<\/p>\n
Complicating factors<\/strong>
\nSuccessfully terminating a copyright transfer is not always a simple matter. Much depends on the nature of the grant you made to a label or publisher, as well as other factors. How many authors made the work? When was the work made? What rights associated with the work were assigned? Did the person\/entity to which you granted your copyright later assign it to someone\u00a0else?<\/p>\nAlthough crafted in 1976, the current version of the Copyright Act was not put into effect until 1978. This means that the first grants of transfer eligible for termination under the updated law are grants that were executed on or after January 1, 1978.[iii]<\/a>\u00a0This guide will focus solely on works eligible for termination under Section 203 of the Copyright Act. This Guide is not legal advice.\u00a0 Since the process can be convoluted and to some extent uncertain, we strongly suggest that those seeking to undertake a termination seek formal legal advice from an attorney experienced in these\u00a0matters.<\/p>\n
What can be terminated?<\/strong>
\nGenerally, any type of transfer or license that authors make with their copyright(s) can be terminated. This includes\u00a0assignments<\/strong>\u00a0(even such grants that purport to give someone else power over your copyright forever!) The grants that you can terminate apply only to transfers of copyrights; trademarks and other \u201crelated\u201d non-copyright rights are not affected or terminable (e.g., if you transferred the trademark in your band name to your label, it will retain ownership of the\u00a0trademark).<\/p>\nHowever, there are a couple of\u00a0exceptions:<\/p>\n
\u2022 \u00a0Works for hire<\/strong>. You, as an employee, make a musical work within the scope of your employment, or by an independent contractor, as a specially ordered or commissioned work for use as a\u00a0contribution to a collective work or as a compilation or as part of an audiovisual work<\/a>[ 1]<\/a>\u00a0.
\n\u2022\u00a0\u00a0Grants by will<\/strong>.
\n\u2022\u00a0\u00a0Grants made by persons other than the author(s)<\/strong>.
\n\u2022 \u00a0Derivative works<\/strong>. Derivative works (think adaptations, synch uses, or officially-sanctioned remixes) made under a grant can still be used after termination; however, no further derivative works may be created by the original licensee based upon the work that was originally licensed or\u00a0assigned.
\nWho Can Terminate?<\/strong>
\nTermination under \u00a7 203 applies to grants made by the author(s), not to grants made by anyone else. Eligibility is determined based upon the status of the author(s), basically whether they are living or dead.[iv]<\/sup><\/a>Here is a chart to help\u00a0explain:<\/p>\n\n\n
\n \n\n Potential\u00a0Claimants<\/p>\n<\/th>\n
\n Author(s)\u00a0Alive<\/p>\n<\/th>\n
\n Author(s)\u00a0Dead<\/p>\n<\/th>\n<\/tr>\n<\/thead>\n
\n Author<\/td>\n Author may\u00a0terminate<\/td>\n Statutory\u00a0successor<\/td>\n<\/tr>\n \n Author w\/\u00a0spouse<\/td>\n Author may\u00a0terminate<\/td>\n Spouse may\u00a0terminate<\/td>\n<\/tr>\n \n Author w\/ spouse\u00a0&\u00a0children<\/td>\n Author may\u00a0terminate<\/td>\n Spouse gets 50% interest in termination while the other 50% is split equally amongst the children. Termination requires the spouse plus at least one\u00a0child.<\/td>\n<\/tr>\n \n Author w\/ spouse, children and\u00a0grandchildren<\/td>\n Author may\u00a0terminate<\/td>\n Spouse gets 50% interest in termination while the other 50% is split equally amongst the children. If one of the author\u2019s children dies and leaves behind grandchildren, each grandchild equally splits their parent\u2019s share in termination. The share of the dead child can be exercised only by a majority of his\/her children. However, to utilize their part of the termination right at least 50% of the grandchildren need to vote for termination. Termination still requires the spouse plus at least one\u00a0child.<\/td>\n<\/tr>\n \n Multiple authors of a joint\u00a0work<\/td>\n Majority of the authors who entered into the grant must agree to terminate (Ex. If 2 authors, both must agree. If 5 authors of a work, but only 3 enter into the original grant, than only 2 of those who entered into the grant need to agree to\u00a0terminate).<\/td>\n A majority of the authors interests still applies. See above to determine how a deceased author\u2019s termination interest is\u00a0utilized.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n As you can see, calculating who has the power to terminate gets tricky in a hurry. Remember, the chart above speaks in general terms. If you want to pursue your termination right, it is advisable to contact a\u00a0lawyer.<\/p>\n
The termination process<\/strong>
\nNow that we have figured out who and what are eligible, it is time look at how a grant of transfer can be terminated. Although you might think that in this day and age of online databases there\u2019s an easy way to go about filing for termination, this isn\u2019t the case. Nor does the United States Copyright Office provide you step-by-step instructions or handy forms. After examining the statute and its concurrent regulations (37C.F.R.\u00a0201.10), we were able to deduce basically\u00a0when<\/strong>\u00a0you need to send\u00a0what<\/strong>\u00a0and to\u00a0whom<\/strong>\u00a0to properly call yourself a\u00a0\u201cterminator.\u201d<\/p>\nNotice<\/strong>
\nTermination is all about notice. At the start of the process, you must let those to whom you granted your copyrights know that you are planning to reclaim them. This is accomplished by sending a letter or form to the grantee providing them with the relevant info. What should be in the letter and to whom it needs to be sent can be complicated. We will go into both areas \u2013 the\u00a0what<\/strong>\u00a0and the\u00a0who<\/strong>\u00a0\u2013\u00a0below.<\/p>\nThe notice must be in writing and\u00a0include:<\/p>\n
\u2022\u00a0 The\u00a0date<\/strong>\u00a0that termination will be effective.
\n\u2022 \u00a0Signatures<\/strong>\u00a0of all authors, or those who have the right to terminate (and their relationships to the authors).
\n\u2022 \u00a0A\u00a0statement<\/strong>\u00a0that termination is being made under \u00a7 203 of the Copyright Act.
\n\u2022 \u00a0The\u00a0name<\/strong>\u00a0of each person\/entity whose rights are being terminated (this includes people who have been granted an interest after the original deal took place). The addresses where these individuals are being sent notice.
\n\u2022 \u00a0The\u00a0date<\/strong>\u00a0of<\/strong>\u00a0execution<\/strong>\u00a0of the original grant (or the\u00a0date of publication<\/strong>\u00a0if the right that was granted was the publication right).
\n\u2022 \u00a0The\u00a0title<\/strong>\u00a0of the work and the\u00a0name<\/strong>\u00a0of the author(s) who executed the original grant (if you want to be really fancy you should include the original copyright registration number).
\n\u2022 \u00a0A brief\u00a0statement<\/strong>\u00a0that reasonably identifies the grant to which the notice of termination applies.
\n\u2022 \u00a0A\u00a0statement<\/strong>\u00a0that certifies all the necessary people have signed the notice\u00a0to the best knowledge and belief\u00a0<\/strong>of all the people who signed the\u00a0notice<\/p>\nWell, that is a lot of info, and some of it may not be easy to gather. The regulations do say that you can include a\u00a0statement<\/strong>\u00a0explaining that you have provided as much information as is currently available to the individuals who are signing the notice and an explanation of why full information is not available. The regulations also explain that all information should be contained in the notice and not reference other documents. Small errors are\u00a0OK, but if you have something wrong that\u00a0materially affects<\/strong>\u00a0the adequacy of the information in the notice than you won\u2019t be able to terminate. In other words be careful, and\u00a0consult an experienced attorney<\/strong>.<\/p>\n
Who gets sent the notice?<\/strong>
\nNotice must be sent to each entity whose rights are being terminated. If the company or individual to whom you originally transferred your rights hasn\u2019t given any portion of those rights to anyone else, then this task is (relatively) easy \u2014 you will just serve that company or individual. If the originally assigned rights have been given all or part to another party, then you may have to do some more detective work. Basically, anyone that can legally use your copyrighted material (which they obtained through a grant) needs to be notified that after termination their actions will constitute infringement.\u00a0 However, the government realized that such a search could be overly burdensome, so they only necessitate a\u00a0reasonable investigation<\/strong>.<\/p>\nIf there is\u00a0no reason to believe<\/strong>\u00a0that your copyrights \u2014 or portions thereof \u2014 have been transferred to new parties, then you can simply serve notice to the person\/entity to whom you originally granted your copyright(s). If there is\u00a0reason to believe<\/strong>\u00a0that such rights have been transferred, then an investigation is necessary and\u00a0may include<\/strong>: a search of the records in the Copyright Office and, for musical compositions, a report from relevant performing rights societies.\u00a0 Either way, when you find out who needs to be served, you can either provide\u00a0personal service<\/strong>\u00a0of the notice or send it by\u00a0first-class mail<\/strong>\u00a0to what reasonable investigation shows is their last known\u00a0address.<\/p>\n
After you properly serve the individuals whose rights you are terminating, you must record the notice with the Copyright Office. You do this by submitting an exact copy of the original notice, accompanied by a small \u201crecordation fee\u201d and a statement explaining the manner in which notice was served and its date. You must record the notice in the Copyright Office before the date of termination specified on the\u00a0notice.<\/p>\n
When can notice be served?<\/strong>
\nIf the grant does not include the right to distribute copies or sound recordings, 35 years after the execution of the grant, you may terminate that grant. You have a period of five years in which to terminate; however, notice needs to be served before the proposed date of termination. Generally, notice\u00a0must<\/strong>\u00a0be served\u00a0no less than two, nor more than ten, years before the date of termination specified in the notice<\/strong>. Meaning, the earliest you can serve notice of termination is 25 years after you granted the use of your copyright to someone and the latest is 38 years, so you have a 13-year window to serve your\u00a0notice.<\/p>\nThe reason for this is that the guidelines surrounding when you can serve notice have to do with the date of termination\u00a0that you specify in your notice<\/em><\/strong>. You have a five-year window to terminate and you can pick any day within that period to do so. However, once you pick a date and write it on the notice you have to serve that notice somewhere in-between 10 to 2 years prior to the date you picked. If you choose a date early in the five-year window and for one reason or another can\u2019t meet the timeline for serving notice, you can always try again by crafting a new notice with a new date of termination (within the five-year window, that\u00a0is).<\/p>\n
For grants of right by\u00a0the author<\/em>\u00a0(and only the author), for all the exclusive rights granted by copyright except\u00a0publication.<\/em><\/p>\n
![\"\"](\"http:\/\/www.futureofmusic.org\/sites\/default\/files\/images\/TermofTransferFactSheetGraph1.jpg\")
<\/p>\nIf the grant includes the right of publication (i.e., the right to distribute copies for sale), the grant may be terminated during the 5-year period beginning the earlierof 35 years after publication or 40 years after the execution of the grant. Therefore, if publication takes place\u00a0within<\/strong>\u00a0five years of when you granted your copyright, the grant may be terminated in the five year period from 35 years to 40 years after the date of publication, as opposed to 35 years after the grant, and notice may be served during the 13 year window from 25 years to 38 years after the\u00a0date of publication<\/strong>. On the other hand, if publication takes place more than five years after the execution of grant, the grant may be terminated in the five-year period beginning 40 years after the grant, and notice can be served during the 13-year window from 30 years to 43 years after the\u00a0execution of the grant<\/strong>. This may sound confusing, which is why you should consult a lawyer with expertise in copyright\u00a0issues.<\/p>\n
For grants of right for the right of\u00a0publication.<\/em><\/p>\n
![\"\"](\"http:\/\/www.futureofmusic.org\/sites\/default\/files\/images\/TermofTransferFactSheetGraph2.jpg\")
<\/p>\nConclusion<\/strong>
\nThe history of the music industry is rife with examples of musicians not getting a fair shake when it comes to their copyrights. Even if dealt with squarely, it is important that artists have further opportunities to benefit from their creative labors. It is clear that Congress intended as much in the crafting of federal laws around\u00a0copyright.<\/p>\nWe recognize that this process is complicated, requires specific information, some investigatory work and a strict adherence to dates. It may also be the case that those to whom you granted the use of your copyrights aren\u2019t in a hurry to return them. But remember, this is your right! We hope this guide proves helpful, but it should not act as a substitute for legal advice and\u00a0guidance.<\/p>\n
- Termination<\/em><\/strong>: also known as \u201creversion\u201d; your right as an author of a creative work to recapture your copyright after a set period of\u00a0time.<\/li>\n