[This post was assembled with the assistance of FMC interns Adam Holofcenter and Lindsey Reilly.]
Remember that post from a while back, “The Terminator,” where we described the somewhat bizarre — and clearly unintentional — “gap” in the 1976 Copyright Act’s termination of transfer provisions?
It’s cool if you don’t, but if you wanna get caught up, we’ll wait. Back? Good. Now for the hotly-anticipated sequel.
Some basic background: the 1976 Copyright Act lets authors “terminate” grants that they made of their copyrighted material 35 years after the grant was “executed.” Terminate? Execute? Sounds kinda harsh. But it’s actually good for artists.
Here’s why: if you are a songwriter or recording artist and you license your song to a publisher or record label, the 1976 Copyright Act allows you to terminate that license after 35 years. The reason for this is because trying to value a song (or any other copyrighted material) can be difficult at its inception and the government thought it was a good idea to give creators another chance to exploit their work.
Like most things, however, the termination of transfer is not entirely cut-and-dry.
Recently, it came to the attention of the Copyright Office that there was a “gap” in the termination provision of the 1976 Copyright Act for works that were licensed before January 1, 1978, but not created until after that date. Technically, works that fall in that gap are not statutorily allowed to be terminated.
Back in May 2010, FMC filed comments to the Copyright Office, who are attempting to address the issue. FMC believes that it was not the intention of Congress in creating the 1976 Copyright Act to leave individuals in this situation without termination rights, and we said as much in our filing.
We also encouraged the Copyright Office to further analyze the discrepancies in the language of the Copyright Act to make sure that all those who fall in the termination gap are able to have an opportunity to regain their copyrights. Our aims were twofold: 1) that a process be created to allow works falling in the gap to terminate and 2) make sure that musicians and songwriters aware of the process for termination.
After taking in feedback from a range of stakeholders, the Copyright Office released their December 2010 Analysis of Gap Grants. Guess what? Their analysis included language from FMC’s comment:
This ‘second bite at the apple’ is even more important in an environment where product and broadcast spectrum scarcity has far less bearing on whether a musical work finds an audience. As more copyrights become eligible to revert back to creators, we may find that the artists themselves exploit their works in novel ways that could be beneficial to the overall health of the music marketplace.
Almost as cool as an on-stage shout-out!
From there the Copyright Office issued a Notice of Proposed Rulemaking (NPRM), which proposed changes to the notice of termination filing procedure. Specifically, the Copyright Office stated that they “will accept for recordation under section 203 a notice of termination of a grant agreed to before January 1, 1978, as long as the work that is the subject of the grant was not created before 1978,” thereby eliminating the gap. Phew!
FMC replied by comment to the NPRM applauding the Copyright Office for its analysis of the situation, while stressing that the proposed regulation be narrowly-applied. If it were to be read broadly, it could mean that the 35-year timer would start when any copyrighted work was created, as opposed to at the time of transfer. We suggested that the Office’s determination that “work creation equals execution of grant” would only be necessary to to resolve instances when a work fell within the gap.
This might all sound like legal mumbo-jumbo (it sometimes does to us!), but it’s really important in terms of securing artists’ right to regain ownership of their creations. We’ll lt you know if there’s a Terminator III: Rise of the Copyrights.