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A Primer on Copyright Termination for Recording Artists

As the name suggests, copyright termination rights give authors the ability to terminate copyright assignments and licenses.  The effect of termination is to put both the author and assignee/licensee back where they were originally.  After termination, the author has all the rights he had originally.  The assignee/licensee has no rights, except with respect to derivative works, a topic for another time.

Different termination rights apply depending on when the copyright was assigned or licensed.  The important date for termination purposes is the date of the grant (assignment or license), not the date the work was created.  For sound recordings (masters), there are basically three categories.

On or After January 1, 1978.  Recording artists (or their heirs) can terminate grants executed after January 1, 1978, effective between 35 and 40 years after the date of the grant (with some variables depending on publication issues).

February 15, 1972 through December 31, 1977.  Recording artists (or their heirs), can terminate grants executed between February 15, 1972 and December 31, 1977, effective between 56 and 61 years after the date of the grant.

Pre-February 15, 1972.  Because pre-1972 sound recordings are not subject to U.S. copyright law, there are no termination rights with respect to them.

The first category, post-January 1, 1978 grants, is the one that has been getting attention recently because the termination period for 1978 works is imminent.  1978 grants can be terminated effective next year, 2013.

The mechanics of termination are very important.  In order to be effective, termination notices must be sent within a specific time period, between 2 and 10 years before the date of intended termination.  As an example, anyone wanting to terminate a January 1, 1978 grant as of January 1, 2013, should have given notice between January 1, 2003 and January 1, 2011.  If one were to give notice today, the earliest termination could be effective is May 17, 2014.  Any notice given after January 1, 2016 would be ineffective.  Notices must include specific information, must be delivered in specific ways, and must be recorded in the Copyright Office prior to the effective date of termination. 

Termination rights do not apply to works made for hire.  Record companies have taken the position that sound recordings are works for hire, and therefore not subject to termination.  They also assert that regardless of who owns the copyright in the recording, they own the actual master.  Therefore, they reason, even if an artist can recover the copyright in the recording, he cannot recover the recording itself.  So, if an artist terminates we will have a stalemate where the record company cannot exploit the master because of the copyright law, and the artist cannot exploit it because he cannot get access to the recording.  The courts have not ruled definitively on either of these issues.

A third issue that may be raised is whether a sound recording is a collective work, or a joint work.  If a sound recording were a collective work, each band member might own their own part, and the record company may claim that it owns the copyright in the whole.  Even if the recording is not characterized as a collective work, it may be a joint work: the product of all of the musicians, and perhaps even the producer, who performed on the recording.  In the case of a joint work, a majority of the authors who executed the grant must terminate for the termination to be effective.  This is one of the issues in the recent Village People case.  Apparently, various members of the Village People executed  separate grants to the music publisher.  The court ruled that one author could terminate his grant because he was the only one who executed it, but presumably the grants from the other group members are left standing.  One then must determine how the patchwork of grants affects the rights.

Here are links to a New York Times article describing the termination controversy with respect to sound recordings, a Rolling Stone interview with Don Henley about the subject, and an AFTRA notice regarding termination

Here are links to the termination statute and a Copyright Office circular describing termination rights

Work to Do

Recording artists should consider whether their ultimate goal is to obtain possession of the masters, or to negotiate a new agreement, which could include an advance.  At a minimum, termination creates an opportunity for recording artists to negotiate new agreements with their record companies. Therefore, no matter what the artist’s intentions, he may want to consider sending notices of termination at the appropriate times, or at least tell his record company that he is considering sending such notices as a starting point for negotiations.  Attorneys can help with calculating deadlines and preparing the notices.  Artists may also want their attorney to review the artist’s recording contracts, learn the facts concerning the contributions of other musicians who performed on the recordings and review their agreements if possible, and otherwise evaluate the factual and legal issues pertaining to their individual case. 

Once termination notices have been served, one should expect there to be negotiation with the artist's current record company, and perhaps other record companies, band members and producers.  Some artists may prefer to engage an attorney who specializes in negotiating record deals for artists to do that work, but one should be aware that record deal experience does not translate precisely to negotiation concerning termination rights. Negotiating points are different because the masters already have been recorded, and many issues relating to things such as recording costs, promotion, etc., are significantly different from the issues in the typical recording contract.  Depending on the results of negotiations, or if either side is unwilling to negotiate, there could be litigation concerning whether the artist is entitled to recover the masters.