Monday, December 17, 2012

Music Business/Law Tips - "Copyright Recapture – 35 Year Rule"

Under the Copyright Act 203, song copyrights that were transferred to a publisher under a publishing agreement can revert back to the songwriter(s)/their heirs if the songs were created after 1/1/78. This is known as the “35 year rule”. (Songs created prior to 1/1/78 are subject to a different 56 year rule). Basically, to exercise the 35 year rule, a songwriter must give written notice to the publisher and the Copyright Office not less than 2 years and no more than 10 years from the intended “termination date” (in general, the date 35 years from when the song was created). In other words, the earliest date of notice is 25 years after the song was created for a 1978 or later song. For example, if a song was created on 1/1/78, a notice of termination can be served as early as 1/1/2003 (to be effective 1/1/2013). There is some issue about whether this statute applies if an artist signed a “work for hire” or “writer for hire” agreement. A lot of the publisher agreements have this language - it is an issue to be aware of because this is not a clearly defined area as yet. Also, if it is a joint work (co-write) one might also need the co-writer(s) to sign off on the notice. None of these cases have gone to court yet to test the statute/these issues, but 2013 is supposed to be the year a lot of these disputed cases go to court because that is 35 years from 1978 so the issue is finally ripe for many valuable copyrights. Ben McLane Esq

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