A quick Q-and-A on ‘copyright recapture’

An undeniable benefit of studying entertainment law in Los Angeles — the entertainment capital of the world — is not only access to, but the opportunity to work with, practitioners in the field. For Biederman Blog editor and music lover Rosalind Read, the Southwestern Law School experience included a summer internship with Richard Jefferson, a graduate of  the school’s SCALE program whose intellectual property and business law practice represents entertainment industry clients.

Jefferson is keenly interested in an aspect of copyright law that allows artists a way to ‘recapture’ rights to their works.  “After graduating law school and working as an attorney in legal affairs for various labels,” he said, “the copyright termination right was always a topic of discussion when reviewing contracts from the late 1970s and early 1980s, since it was these artists who would be the first eligible to assert this right.”

In an era of little bargaining power, musicians and groups such as Earth, Wind and Fire, Parliament Funkadelic and Chaka Khan, often signed away all rights to their songs to powerful record label executives. But Section 304(c) of the Copyright Act says that copyright owners or their heirs can terminate all grants, licenses or transfers of rights made before 1978, beginning on the 35th year after that assignment was made. Jefferson is hopeful about the future for artists who hope to exercise their legal options regarding their works, saying of the recapture possibilities,  “have no fear, the groundwork for this powerful right is already being laid by seasoned talent like The Eagles, Journey and Barbra Streisand, who are planning to test the waters soon. Their efforts will set a powerful precedent for ’70s music projects that are still experiencing success.”

Jefferson, at Read’s invitation, agreed to a Q-and-A on this aspect of copyright law, with some necessary disclaimers: This is a general discussion for educational. informational and entertainment purposes and should not be construed in any way as an offering of legal advice or counsel.

Why is copyright recapture important?

“This subject has become a hot topic of late because beginning Jan. 1, 2013, an artist can assert his or her termination rights for the first time in history. To assert these rights, the author must have sent a notice to the holder of the copyright no later than Jan. 1, 2011.  Authors of content created as late as 1985 are now eligible to serve their notices of termination and authors of content created in 1978  could, subject to certain criteria, regain ownership of their works. This will now be an ongoing right (i.e. authors of copyrights created in 1990 can regain their rights in 2025 by giving notice of such as early as 2015).”

What is the basis for the copyright recapture?

“In short, taking advantage of a songwriter or composer is literally unconstitutional. Even though an author signs a contract that says something like, ‘all rights are assigned for the life of the copyright’ (common language in publishing deals), such provisions becomes void  under the Copyright Act, which gives the author the right to terminate the contract assignment and recapture control of his or her work after 35 years.  The Copyright Act, as federal law, takes precedent over any state laws, such as contract law.  Therefore if a conflict arises between federal and state law, federal law wins and consequently, an author’s Copyright Termination Right cannot be waived, sold in advance, or otherwise forfeited by contract.”

How does this work?

“To be eligible, the transfer or license must have been executed by the author, not by a recipient of an author’s rights (i.e. an heir receiving the author’s copyright by will). If the original author transferred or licensed the rights, there are certain criteria that need to be analyzed.”

1. Were the author’s rights transferred before or after Jan. 1, 1978?

“This is the date that the 1976 Copyright Act took effect so there are different analyses necessary for works transferred either before or after this date.”

2. Was the copyright created as a “work-made-for-hire”?

“This can be a tricky analysis in the music industry because many music contracts contain both’work-made-for-hire’ and ‘assign and transfer’ language. Both types of language are included because the Copyright Act fails to give a specific definition of ‘work-made-for-hire,’ another hot topic that rose to fame after the 1976 Copyright Act was enacted.”

3. Who is going to assert the right?

“If the author is alive, then the author can terminate use of the copyright directly but if the author is not alive, things get complicated.  The short answer is the author’s heirs have the right to terminate assignments provided the deceased assigned the copyright interests to the heirs.”

Richard B. Jefferson, Esq. is a partner at M.E.T.A.L. Law Group, LLP, in Los Angeles (www.metallawgroup.com). Most of the firm’s clients are small- to medium-sized independent companies in media, entertainment, technology, action sports, and lifestyle brands.

One thought on “A quick Q-and-A on ‘copyright recapture’

  1. Interesting post- I wonder how many artists or heirs will actually understand they have this power? Maybe SW should hold information sessions to education the public on rights issues such as these.

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