Lommen Abdo Helps Music Clients Secure Reversions of Valuable Copyrights

8/19/2011

Lommen Abdo helped its client file the first termination of copyright in the nation under the Sections 203 and 304 of the U.S. Copyright Act. Sections 203 and 304 of the U.S. Copyright Act permit authors to terminate exclusive or non-exclusive transfers of copyright or any right under copyright executed by the author. Are your song rights being protected?

In the case of a transfer or license executed on or after January 1, 1978, Section 203 of the Act provides that notices of termination may be served no earlier than 25 years after the execution of the grant or, if the grant covers the right of publication, no earlier than 30 years after the execution of the grant or 25 years after publication under the grant, whichever comes first. 17 U.S.C. § 203(a)(3). However, termination of a grant cannot be effective until 35 years after the execution of the grant or, if the grant covers the right of publication, no earlier than 40 years after the execution of the grant or 35 years after publication under the grant, whichever comes first. Id. As a result, the effective date of the termination of a transfer of copyright executed, for example, on January 1, 1980, is January 1, 2015. The window in which a notice of termination must be served ends January 1, 2013 (or 2 years before the effective date of termination). As a result, legacy songwriters and recording artists who signed agreements in 1978 and after are well advised to engage music law counsel to review prior agreements and catalogs and serve notices of termination under the U.S. Copyright Act. Failure to do so may result in the loss of valuable reversion rights.

In the case of a transfer or license executed prior to January 1, 1978, Section 304 of the Act provides that notices of termination may be effected at any time during a period of five years beginning at the end of 56 years from the date copyright was originally secured, or beginning on January 1, 1978, whichever is later. 17 U.S.C. § 304(c)(3). As a result, the effective date of the termination of a transfer of copyright executed, for example, on November 1, 1968 (i.e. the date of the first Atlantic Agreement), is January 1, 2023.

For legacy songwriters, the right to reclaim music publishing copyrights is fairly straightforward. For legacy recording artists, however, the right to reclaim sound recording copyrights is subject to a couple of obstacles. First, sound recordings fixed before February 15, 1972 are not subject to federal jurisdiction under the U.S. Copyright Act and, therefore, Section 304 would not apply to these sound recording copyrights. (Pre-1972 sound recordings are protected under a patchwork of state common laws). Second, Sections 203 and 304 of the U.S. Copyright Act do not apply to works-for-hire as this term is defined under the Section 101 of the U.S. Copyright. Record labels maintain that work-for-hire language in most recording agreements exempt sound recordings from the termination right under Sections 203 and 304. However, recording artists have a strong argument that most works are not, in reality, works-for-hire. As a result, artists are well advised to serve notices of termination on sound recording copyrights because this issue will likely be resolved by litigation or legislation in the near future.


Ken Abdo's quote in the New York Times article on August 15, 2011 ignited national and international interest in the topic of termination of copyright transfers. Starting in 2013, for songs and recordings published after January 1, 1978, artist/authors may be eligible to the reversion of the copyrights previously assigned by them to record companies and music publishers. Among other artists including Kool and the Gang, and the author of Marvin Gaye's "Sexual Healing", Lommen Abdo represents the song "Funkytown" by Lipps Inc. for which the firm filed the first termination notice with the Copyright Office in 2006.

• Listen to the Ken Abdo interview on the nationally syndicated Public Radio International show, The Takeaway.
• Listen to the Ken Abdo interview on BBC Radio's Today show.
• Check out the interview of Tim Matson by award-winning journalist and Toronto talk radio host Arlene Bynon. Tim and Arlene discuss timely issues arising under the 1976 U.S. Copyright Act which provides for termination of transfers of copyright, including how recording artists and songwriters can take advantage of this statutory right.

If you have questions on termination of copyright transfers, contact Ken Abdo at ken@lommen.com or 612-336-9316 or Tim Matson at tim@lommen.com or 612-336-9331.