The 35-Year Copyright Decay: Singers to Take Advantage of Approaching License/Transfer Termination Date

The 35-Year Copyright Decay: Singers to Take Advantage of Approaching License/Transfer Termination Date

Dates far in the future have a tendency of falling off our radars. If you're looking 35-years into the future, the dates really fall off. Beyond the purchase of 35 twelve-month calendars, you can't effectively plan 3 1/2 decades in advance. But if you aren't at least looking ahead, be warned. Thirty-five years can come quickly, which is what the recording industry is now finding out. Lookout music, here comes 17 USCS § 203.

Section 203 provides for the termination of transfers and licenses granted by an author. Specifically, § 203 states that under certain conditions:

In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination ....

The conditions for termination include:

(1) In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by an authorized person. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it;

(2) Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier;

(3) The termination shall be effected by serving an advance notice in writing. The notice shall be served not less than two or more than ten years before the termination date; and

(4) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.

According to a recent New York Times article:

Bob Dylan has already filed to regain some of his compositions, as have other rock, pop and country performers like Tom Petty, Bryan Adams, Loretta Lynn, Kris Kristofferson, Tom Waits and Charlie Daniels, according to records on file at the United States Copyright Office.

"In terms of all those big acts you name, the recording industry has made a gazillion dollars on those masters, more than the artists have," said Don Henley, a founder both of the Eagles and the Recording Artists Coalition, which seeks to protect performers' legal rights. "So there's an issue of parity here, of fairness. This is a bone of contention, and it's going to get more contentious in the next couple of years."

Section 203 notwithstanding, the major record companies have offered an argument against license terminations. They're hanging their hats on § 203's language, "other than a work made for hire." In light of this language, record companies are arguing that sound recordings belong to them in perpetuity. Whether or not this argument holds water remains to be seen. However, for it to have any legitimacy, it has to go through 17 USCS § 101(a), which defines a "work made for hire" as:

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

According to the New York Times article, experts doubt the validity of the record companies' argument. They note that traditionally, artists finance their own records, with advances from the record companies charged against royalties. Moreover, in terms of Social Security payments, tax withholdings and other aspects, the typical employee relationship is non-existent between artists and record companies.

Under the Copyright Law, January 1, 2013 is the earliest date to enforce § 203's termination right.

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