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Understanding copyright termination
The termination right is one of the most powerful — and least understood — provisions in U.S. copyright law. Here's what every songwriter and heir should know.
Life of a Copyright
Copyright law has gone through many changes and revisions over the years, so the life of any particular copyright depends on a variety of factors — when the song was written, when it was registered, whether it was published with notice, whether a renewal was filed, and the life of the creators.
Works created after January 1, 1978
A work fixed in tangible form after this date is automatically protected from the moment of creation. The term lasts for the author's life plus 70 years after death. For joint works by two or more authors (not made for hire), the term lasts 70 years after the last surviving author's death.
Works made for hire, anonymous & pseudonymous works
The duration is 95 years from first publication or 120 years from creation, whichever is shorter.
Works created before 1978 but unpublished & unregistered
These receive the same life-plus-70 or 95/120-year terms as new works, but are guaranteed at least 25 years of protection. Copyright cannot expire before December 31, 2002, and if published before that date, the term extends through 2047.
Works copyrighted before 1978
Under the old law, copyright lasted for a first term of 28 years. If renewed, a second term of 28 years was granted. The 1976 Act increased the second term to 67 years, and subsequent legislation (Public Law 105-298) extended it further — bringing the maximum total protection to 95 years (a first term of 28 years plus a renewal term of 67 years).
Other variables can affect the length of protection for a specific work. At Legacyworks, we are happy to examine and discuss your individual situation.
↑ Back to topThe Termination Right
Most creators are amazed when they hear about the termination rights made possible by the 1976 Copyright Act. By law, it is possible for a creator to recapture the rights transferred by grant — a publishing contract, single song agreement, administration agreement, or even a security for a loan. Even if the creator has an outstanding balance due to advances, termination is possible.
The law took effect on January 1, 1978, an important date for determining when a song can be terminated. The author can serve notice of the intent to terminate, or if the author is no longer living, his or her statutory successors can serve notice. The Copyright Office does not provide a form for notification but is specific in their requirements of what must be included.
The termination windows
Pre-1978 Works
First Window
For songs copyrighted and assigned prior to 1978, there is a five-year window beginning on the 56th anniversary of the earlier of either the first registration or the first publication with copyright notice, extending through the last day of the 60th year. Notification must be served no more than ten years and no less than two years before the chosen termination date. Terminating in this window returns the copyright for up to 39 years of remaining protection.
Pre-1978 Works
Second Window
For older works in their renewal term on the effective date of the Sonny Bono Copyright Term Extension Act (October 27, 1998), if the original termination window has expired, a second window is available at the 75th anniversary, extending through the last day of the 79th year. Terminating here returns the copyright for up to 20 years of remaining protection.
Post-1978 Works
Publishing Grants
For songs entering copyright on or after 1978, the termination window begins the earlier of 35 years from first publication or 40 years from signing the transfer. Or, if previously published when granted, the window begins 35 years from the grant. The same notification rules apply — no more than ten years prior, no less than two years before the termination date.
Post-1978 Works
Non-Publishing Grants
For assignments that do not include publishing rights — such as a security for a loan — the five-year termination window begins 35 years after the date of signing. Unlike pre-1978 songs, there is no second window of opportunity. Miss the first, and there is no other.
This is a simplified explanation of some of the guidelines. One must be prepared with many specifics — title, writers, copyright dates, copyright numbers, date of publication, agreements, the specific termination date, and possibly identification and agreement of statutory successors. Notice must be served at the correct time.
Legacyworks is a great source for providing this service to authors and successors who recognize the benefits the law has given them.
↑ Back to topDocumentation & Planning for the Future
Most of us keep files with important papers — birth certificates, car titles, mortgages, insurance policies. Sadly, the same attention is seldom paid by songwriters to perhaps their biggest asset: the catalog of their works.
Long after your house is sold, your car is scrap metal, your insurance policies have expired, and your tax returns are landfill, your songs will still be protected, will still have a stream of income, and will live on.
Consider: a songwriter writes a hit at age 27 with a co-writer who was 25. The songwriter lives to 77; the co-writer to 86. Copyright protection lasts 70 years after the last surviving author's death — totaling 131 years of copyright protection from the date of creation. For as many as 96 of those years, income could have been greatly increased by filing a termination notice and structuring a better deal. That means children, grandchildren, and great-grandchildren who stand to benefit — if the copyright house is in order.
Why you need your own documentation
Over a career, a songwriter may have works at many different publishers — different accountings, different agreements, different sub-publishers around the world. This complexity makes it difficult to monitor usage, royalties, and errors. Exercising the right to terminate can bring all works under one administration.
Though it is often promoted that the publisher and songwriter have the same interests, in truth there are many ways their interests diverge. Publishers do what is best for their bottom line and that of their executives and shareholders. Having control of your works allows you to do what is in your best interest — but you need your facts to do so.
Major publishers have become depositories for enormous numbers of songs, some boasting catalogs of a million copyrights. They continue acquiring other publishers with large catalogs, placing greater workload on existing or smaller staff. Your works are probably not as important to them as you might hope. Original documents get buried in warehouses. People you knew and trusted move on, get fired, retire, or die. Over time, most songs become merely a back-room accounting code.
It is not in a publisher's long-term interest to inform writers that copyright law allows them to terminate contracts and recapture rights — even if there is an unpaid advance balance. Publishers are not in the business of giving up copyrights, so don't expect them to volunteer this information.
The bottom line: you, the songwriter, must accept the responsibility to pull together the documentation of facts pertaining to your songs and to prepare for the long future of your works. It is in your best interest, the best interest of your loved ones, and the best interest of your songs.
Legacyworks is here for that purpose. We research and document your songs — both past works and those you continue to create. We assemble detailed copyright and contractual facts on each song and prepare the schedules and documents necessary to terminate and renegotiate at the appropriate time. We give you everything your heirs will need to track what you created.
↑ Back to topThe "Gap Grant" Opinion
A work created on or after January 1, 1978 becomes copyrighted as soon as it is fixed in a tangible means of expression — essentially the date of creation. This was a considerable change from the old law, which required registration or publication with copyright notice.
However, questions remained regarding "gap grants" — works created on or after January 1, 1978, but bound by a term agreement signed prior to 1978. Many believed the wording of the copyright act did not specifically address how to terminate such a work, and different companies, organizations, and attorneys held conflicting views.
In 2009, the U.S. Copyright Office requested comment on how to resolve the gap grant dilemma. Legacyworks contributed comments on this issue in response.
The Copyright Office issued an opinion and now accepts filing for termination for gap grant works under Section 203 of the act. The interpretation holds that until there is authorship, there is no copyright interest, no transfer of that interest, and no author for whom exclusive rights — not to mention termination rights — can vest. While supporting this view, the Copyright Office makes clear that whether such notices fall within the scope of Section 203 will ultimately be decided by the courts or by Congress.
Creators have not generally kept records of date of creation as well as they should. Often, publishers apply an arbitrary date chosen from when a song is turned in or a single song agreement is signed. The creator needs to be accurate as to date of creation. Good record keeping is very important.
Faced with detailed issues and interpretation such as this, creators should remember that Legacyworks is a leading provider of expertise for those considering termination rights and the steps important to pursuing them.
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