• Royalty Accountant (LA) (Royalty Review Council) • Music Publishing Client Manager (LA) • Licensing Assistant Wixen Music (LA) • Director, Client Solutions (Nielsen Music - NY) • Part-Time Royalty Assistant (LA)
View All Jobs
US Copyright Office Copyright Legislative Developments
Digital Music News The Most Calming Music for Dogs Ever Created
• 2017 Billboard Latin Music Conference Announces 'The Life of Jenni Rivera' Panel • 2017 Billboard Latin Music Conference Announces Power Players Panel Feat. Latin Music's Top Movers & Shakers • Billboard Latin Music Awards - finalists announced • What Happened In Latin Music In 2016? • Universal Music Publishing and Roc Nation Latin partner for the Latin Market
View All Entries
• The SCL Submits Comments In Response To the USCO's Request • How the Battle Over Control of the U.S. Copyright Office Could Affect the Music Industry • 15 Music Organizations Say DMCA Isn't Working • Copyright Alliance Asks President Trump To Strengthen Protections • Copyright Royalty Board Cost-of-Living Adjustments Take Effect
View All Entries
View All Copyright Corner Entries
WHAT IS A TERMINATION RIGHT?
This provision of copyright law originates from a basic principal or fundamental of the music publishing business: When a song is first written, it’s impossible to know whether it will become commercially successful over time. This provision is called The Termination Right and is designed to give songwriters, or their heirs, a second chance by allowing them to reclaim their copyright ownership, but only after many years, and only if the law’s requirements are followed to the letter
WHEN IS A SONG ELIGIBLE FOR TERMINATION RIGHTS?
The math of termination rights is complicated but we’ll break it down for you:
The math for “counting” copyright duration, and for knowing when termination rights arise, is different depending if a song was published before 1978 or after 1978 (the effective year of the current Copyright Act).
One other important item to note is that termination rights don’t have to be exercised the first year they arise; there is a five year “window “to work with.
For Songs Published Pre 1978
It takes at least 56 years from the initial copyright assignment for the termination right to arise. So this year, 2011, is the year that songs assigned in 1954 are eligible for termination, because their 56 year waiting period expired at the end of 2010. Pre-1978 copyrights have a total duration of 95 years, so if an estate reclaims a work after 56 years, the estate will have the copyright for the remaining 39 years.
There’s another category of termination right for works published 75 years ago. For example, if a song was published in 1936 and never terminated before, it would be ready for termination so that the estate could reclaim the last 20 years of copyright before it went into the public domain.
For pre-1978 works where there are multiple authors or heirs, any one of the rights holders can terminate their share independently.
For works Post-1978
Starting in 1978, the math is different: For works assigned to a publisher in 1978 and later, it takes 35 years for the termination right to arise. For example a song assigned in 1978, the termination right will be available after the end of 2013.
Major issue with Post-1978 copyrights: for songs created Post-1978, where there are multiple authors or heirs, a majority of the authors or heirs must agree to terminate.
HOW TO RECLAIM YOUR PUBLISHING RIGHTS
For Writers – here’s what you must do.
Carefully calculate the termination date, and we recommend that you have a proper notice of termination drafted by a copyright lawyer. You would then send the termination notice to the publisher. Note: you can do this up to ten years in advance, but it must be no less than two years in advance of the effective date of the termination. If there are multiple authors or heirs, for songs created Post-1978 the majority must agree to terminate.
For Publishers – here are your options
a. Keeping a copyright: An upcoming termination may be an opportunity to reach a new deal with the songwriter’s estate, and secure the future rights that might have otherwise been lost. Once an estate gives notice of termination, there is a waiting period before it comes in to effect, and during the waiting period, only the current publisher can enter into a new deal with the estate. It is an important negotiating advantage.
b. Acquiring termination rights from an estate: A publisher might acquire a classic song from an author’s estate that was formerly owned by a competitor. Estates that reclaim copyrights may be looking for a better agreement, and many publishers are on the lookout to grow their catalogs with good copyrights that were terminated and have come onto the market for the first time in 56 years.
TWISTS AND TURNS
A few examples of how this can get complicated.
1. Derivative Rights Even though a writer (or estate) was successful in regaining the rights, the music publisher who had the rights will still be able to receive continuing revenue from derivative works (based on the song), such as mechanical licenses for sound recordings. Notwithstanding this ruling there have been cases where courts have settled disputes over these continuing post-termination royalties in different ways. Notable examples included a dispute over mechanical royalties for the song Bye Bye Blackbird on the Sleepless in Seattle movie soundtrack.
2. Only In The USA The termination right is effective only under U.S. copyright law. Where a publisher was assigned worldwide copyright, even after termination, the publisher will retain all rights outside the United States.
3. Works For Hire Songs that are classified as “works made for hire” can’t ever be terminated, for example a song written especially for a motion picture where the songwriter was a studio employee and/or signed a valid work made for hire agreement can’t be terminated. Sometimes, there are legal disputes over whether or not a work was a work made for hire.
4. Termination Rights Cannot be Excluded Under the law, a songwriter can’t contract away the termination right. Even a contract that says “I will never terminate” is void under the law. But, as is often the case with valuable works, there have been disputes over this provision.
5. Is It Worth It? Sometimes a 56 year old song truly has no more commercial appeal, but authors or heirs may demand promotional time and investment. Even where a business decision is made by a publisher not to try and negotiate to keep the copyright, the publisher retains some of the rights post-termination as discussed below.
Despite The Complexity, You Must Pay Attention To Termination Copyrights.
If you are a music publisher, there may be works in your catalog ripe and at risk of termination. You can wait it out and see if the estate will terminate (they may not), or you can use a pending termination as a good time to renegotiate, and take advantage of the way the law give the current publisher a “first look” at re-acquiring the work.
If you are a songwriter or the heir of a songwriter, you may have termination rights now, or in the future. Neither side can escape this “second bite at the apple” under copyright law. Understanding termination rights is the key.
This article is meant to give an overview of termination rights but is not to be considered legal advice. You should retain legal counsel or seek advice from a knowledgeable expert before making decisions involving termination rights.
Corey Field, Esq.
with Richard Feldman, AIMP President
2nd Annual Mountain Recording Retreat
AIMP Nashville Awards // SAVE THE DATE
Music Biz 2017 // May 15-18
AIMP Premier Members only Roundtable Discussion -
Music Licensing Regime Is Out Of Tune View More
How much should writers and publishers get paid? with Rich Stumpf of Atlas Music Publishing View More
See all Articles
Music Publishing Radio Show ft. Corey Field
by C. Field
View Full Post
NMPA Membership Dues Reduced For Qualifying Publishers
by L. Redwing
View Full Post
See all Posts
House Judiciary Committee Passes Register Appointment Bill The Copyright Alliance reported that on March 29, the House Judiciary Committee passed H.R. 1695, the Register of Copyrights Selec …
NMPA & NSAI Present Case to CRB The NMPA and NSAI will begin presenting their case to the Copyright Royalty Board (CRB) on March 8th to determine the new mechanic …