Regular readers have probably seen us post about “termination rights,” which is a fancy way of saying that authors of copyrightable works — including musicians and songwriters — are eligible under federal law to have their rights return to them after a period of 35 years. Some of the companies to whom those copyrights were originally granted (like publishers and labels), aren’t keen to give them up.
On Monday, November 14, the Songwriters Guild of America (SGA) asked permission of a district court to accept a “friend of the court brief” stating the many reasons why creators must have another opportunity to reclaim their expressions. Future of Music Coalition shares the view that musicians and songwriters should have a “second bite at the apple” with regard to their work, and support the SGA in their attempt to present this argument to the court.
In 1976, Congress extended the term of copyright, but also established an important provision letting creators regain control of their work after a period of 35 years (previously, it had been 56). The “new” law went into effect in 1978, and that’s when the clock started ticking. So now we’re seeing a host of works that are eligible to revert back to their creators. Essentially, anything created after January 1, 1978 is fair game for what’s called “termination of transfer.”
This case involves the original lead singer of the Village People, who is asserting his right to terminate copyright grants on 32 songs, including the ubiquitous “Y.M.C.A.” It’s important to remember that this is the composition, or songwriting, copyright we’re talking about. There are two copyrights in music: the composition copyright (think notes on paper) and the sound copyright (think music captured on tape or hard drive). The composition copyright belongs to the songwriter at the moment he or she writes the song. The sound copyright belongs to the performer (or performers, if it’s a band), when the “master” recording is created.
Termination doesn’t happen automatically — the artist has to serve notice at least two years before the date they want to get their copyrights back; once the Copyright Office decides that the song fits the criteria, they have five years to file a claim to actually have the work come back to them. If they miss the window, they’re out of luck. Complicating matters is the fact that publishers and labels may litigate using various strategies, including the claim that the expression was a “work for hire,” and therefore ineligible for termination. We, like the SGA, think that this is counter to Congress’ intent.
The Hollywood Reporter excerpted a key passage from the brief SGA intends to file, and we think it hits the nail squarely on the head:
It is a simple fact that authors of copyrighted works have limited financial — and therefore limited legal — resources. If the recipients of the many termination claims that will be filed in the coming years — all of which possess superior economic resources — are permitted to engage in protracted litigation and legal gamesmanship to block the effect of clearly meritorious termination claims by creators, then songwriters, authors and other creators will run the constant risk of being drained of the resources necessary to persevere in the litigation process, and authors’ rights under Section 203 of the Copyright Act will have been chilled to the point of evisceration.
According to the Hollywood Reporter, U.S. District Court Judge Barry Moskowitz has scheduled a hearing on for December 16th to consider SGA’s request to file their brief. We hope that it gets granted.