Whilst the U.S. Congress seems to be doing its best to honor big entertainment and frustrate public discussion of copyright reform, there’s an issue bubbling below the surface that will bring artists’ rights to the fore both in public discussions as well as, you guessed it, litigation.
Here we discuss section 203 of the 1978 Copyright Act which provides a path for authors/creators to terminate any contract after 35 years. Back in the distant late 1970’s (yes, I was a lawyer, even then), during the Ford Presidency (look it up), Congress put this in place to protect young artists who signed away future best sellers or other creative for little or nothing. It’s a provision with a 35 year fuse. Called “termination rights,” the law reverts rights back to the author, meaning that works published in 1978 could soon (by now, when it is 2013) leave their publishers, or new contracts forced to be negotiated. Congress passed the copyright law in 1976, specifying that it would go into effect on Jan. 1, 1978, meaning that the earliest any recording or other creative work can be reclaimed is Jan. 1, 2013. But artists must file termination notices before the date they want to recoup their work, and once work qualifies for termination, its authors have five years in which to file a claim; if they fail to act in that time, their right to reclaim the work lapses.
As you can see from the previous sentence, with most things in life, Section 203 termination rights are not as simple as they appear. To repeat, Section 203 provides that authors have a five-year period in which to exercise the right, but must also provide advance notice at least two years but no more than 10 years before the date of termination.
And any case exercising the right — if the publisher fights it — is unlikely to be clear-cut.
One particular issue is that the book cannot be considered a “work for hire”. A work made for hire is a work created by an employee as part of his or her job, or a work created on behalf of a client where all parties agree in writing to the work for hire designation. It is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work. According to copyright law in the United States , if a work is “made for hire”, the employer—not the employee—is considered the legal author.
For sophisticated creators, this provision has been on the radar for a long time. The New York Times reported in 2011 that
“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.”
And yes, it applies to all works of authorship, whether musical compositions, books, or other works of authorship. The law gives leverage to creators, but most publishers (whether print or music) are likely not to be keen on just kicking back their rights. It’s a challenge in an already fluid sector. We will be following the issue closely here and here. More to come….