Navigating US copyright termination rights
| Author | Brian D. Caplan |
| Position | Esq., Caplan & Ross, LLP |
| Pages | 19-21 |
WIPO | MAGAZINE p. 19
N AV IG AT I NG
US copyright
termination rights By Brian D. Cap lan, Esq.,
Caplan & Ross , LLP*
* Caplan & Ross, L LP is a New York City-based
law rm that spec ializes in enterta inment and
intellectual property litigation.
1. For pre-1978 grants, the C opyright Act
continued the r enewal term system, but ad ded
an additional 19 years of copyright protection
to the renewal term (s ince extended), and
provides autho rs with a commensur ate right to
terminate gran ts 56 years after copy right was
originally secured. This termination right with
respect to the “ex tended term of copyri ght” is
codied in 17 U.S.C. § 304 and l argely mirrors
the provisions o f § 203.
In the Copyri ght Act of 1976, the US Con gress gave reco rding arti sts and
songwriter s the possibilit y to claw back rights to p reviously licens ed works
after 35 years. This so-called “termination right” is designed to enable crea-
tors to reneg otiate the terms of t he publishing dea ls they concluded b efore
the true val ue of their work wa s known. The term ination rig ht, codied a s
17 USC §203, appl ies to rights assigned f rom January 1, 1978, on condit ion
they are not “m ade for hire”.
The right, which has signicant implications for the entertainment and
publishi ng industr ies, will rs t have an impact in 2 013. These sector s are
underst andably clo sely following r elated cour t decisions . One of the rs t
such cases i nvolves Victor Wil lis, the forme r lead singer of t he 1970s pop
band, Vill age People. In May 2 012, a court in Cal ifornia held t hat Mr. Willis
has the righ t, in 2013, to recaptur e his interests in th e copyright of 33 song s
he co-autho red, includ ing the iconi c hits, “YMCA”, “Go West” and “ In the
Navy.” This art icle takes a closer look at th e termination right an d some of
the key legal is sues likely to ari se from its applicatio n.
LEGAL CONTEXT
Prior to 1976, Congress had attempted to protect authors who had assigned rig hts
in their works before their true co mmercial value was known. The 1909 Copyrig ht
Act, for example, provided an initial 28-year protection period renewable for a further
28 years. This sought to ensure that the copyr ight in a work revested in the author
after the rst 28 years, on conditi on renewal rights had not already been assigne d. In
practice, to get their works commercially published, authors generally had no option
but to assign their rights for both terms of p rotection.
The 1976 revision of US copyright law introduced a new “terminatio n right” whereby
rights must revest in the author before a ny further reassignm ent would be valid. For
works created after Januar y 1, 1978, the Act provides for a single term of copy right
protection – the life of the author plus 50 year s (since extended by 40 years). It also
provides authors with an ina lienable right to “terminate” a grant of copyright 35 yea rs
after the grant was made.1
THE MECHANICS OF TERMINATION
To exercise this right the assigning authors must ter minate their grants within a ve-
year period beginni ng at the end of the 35th year from the original grant date (i.e. the
35th to the 40th year) by serving a Notice of Termination on gr antees no less than 2
and no more than 10 years before the effecti ve date of termination.
→
IN THE COU RTS
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