The Tennessean recently published my article on recapturing copyrights. This is what I wrote:
If they’re not scrambling yet, Nashville songwriters, recording artists, publishing houses and labels soon will be as they jockey to control copyrights. Starting this year, authors can begin to give notice to terminate the transfer of any copyright that was published on or after January 1, 1978.
Generally, whoever owns the copyright owns the right to distribute, sell and reproduce the work in question, whether it be lyrics or music to a song, sound recordings, motion pictures, manuscripts, software, architectural designs, or photographs. When an author transfers ownership, he or she loses those rights. But by terminating the transfer, authors redirect royalty streams away from the current owners (labels, publishers, and so forth) and back to the original authors.
A five year window opens up 35 years after publication, allowing authors to terminate transfers they made in the past. For those works published in 1978, the first opportunity to terminate the transfer will be in 2013. (For works published or registered prior to 1978, different rules apply, but authors can still recapture their copyrights.) The Act requires authors to provide at least two years notice, so those who want to terminate their 1978 transfers in 2013 must send notice in 2011.
Historically, when working to get established, authors (be they poets, songwriters, filmmakers or sculptors) have had little leverage with their publisher or label. In exchange for receiving financial advances and getting published, young authors often must transfer ownership of the copyright in the work to the publisher/label. For example, Garth Brooks currently has a lot more negotiating power than newer artists because he has a track record of producing huge hits.
Recognizing the uneven bargaining power that authors possess when first trying to make it big, Congress leveled the playing field by giving them the ability to recapture the copyrights they transferred to the publisher/labels 35 years ago. Whether an artist’s record contract says he has created a work made for hire, or whether she has signed a contract promising never to terminate the transfer, it doesn’t matter because the right to terminate transfer is irrevocable.
Congress left open many unanswered questions that courts across the country will have to answer. With Nashville’s stature in the music and publishing industries, as well as our growing technology community, this has the potential to wreak as much havoc on business as the switch from vinyl to digital. Given the impact of this law on our own community, I feel certain that Nashville’s federal courts will be in the center of this storm.
The rules in this area are complicated, even to many lawyers. They are highly technical and require jumping through many hoops. Once the window to recapture closes, it generally closes for good. Authors who are interested in recapturing their copyrights should start working on this right away, take this into account when writing their wills, and enlist professional help from a lawyer in this field.