The Insider’s Guide to Making Money in the Music Business
5th Edition, Schirmer Trade Books
©By Jeffrey Brabec and Todd Brabec
Under the 1976 Copyright Revision Act and 1998 Term Extension Act, creators and their representatives were given new rights to terminate grants that were made not only on or after January 1, 1978, but also prior to that date. In effect, the act provided authors, their estates, their heirs and other duly authorized representatives the opportunity to recapture rights in and to musical compositions, provided they complied with certain formalities.
Termination of the Extended Copyright Renewal Term
The 1976 Copyright Revision Act not only increased the duration of copyright protection from 56 years to 75 years – thus allowing the writer and publisher of musical compositions to continue for a longer period of time to benefit financially from being able to license such works – but also gave the author the right to recapture rights in the musical compositions during the extra 19-year extension period.
When the Termination Notice Must Be Sent
In order for an author or his or her duly authorized representative to terminate a music publisher’s right to continue to control a pre-1978 composition, written notice must be sent to the publisher not less than two years nor more than 10 years prior to the effective date of termination. In this regard, termination of the extra 19-year renewal period can take place only during the fifty-seventh through sixty-first year of copyright protection (1.e., during the initial five years of the 19-year extension period). In other words, termination can occur only during the five-year period commencing with the end of the fifty-sixth year subsequent to the initial copyright date, and notice must be sent not less than two years before that five-year period, nor more than 10 years before the same five-year period.
What the Termination Notice Must Contain
The termination notice should include the following information:
The name of the musical composition
The name of at least one of the writers
The date of initial copyright
The original copyright registration number, if available
The date on which termination is to take effect
Identification of the agreement or grant of rights to which the termination applies (e.g., songwriter agreement between [writer name] and [publisher name] dated [day/month/year]) …
The name and address of the music publisher or other company (or said party’s successor-in-interest) whose grant is being terminated
If the writer is deceased the notice should also contain the names of the successors to the deceased writer and their relationship to the writer. And if the termination notice relates to a contract signed by someone other than he writer, the name of the surviving person who signed the contract should be included.
Service of the Notice
The notice must either be served by personal service or sent by first-class mail to the last known address of the original music publisher or its successor-in-interest. The terminating party should make a reasonable investigation to determine the address of the party that currently owns the composition. It is also vital to record a copy of the termination notice in the U.S. Copyright Office prior to the date on which the termination is to take effect.
Persons Entitled to Terminate the Extended Renewal Term
The original creator, if alive, is the person who is entitled to terminate the additional 19-year period of the 47-year renewal term. If the creator is decease, the right to terminate vests in the surviving spouse. If there are children or, in the event a child is deceased, grandchildren of such deceased child, the spouse will own a 50% interest in the termination rights and the children or grandchildren will divide the remaining 50% interest in equal shares. For example, if there is a surviving spouse and three children, each of the children would be entitled to 1/3 of a 50% interest. If the original creator is dead, termination can be effectuated only if those persons entitled to more than 50% of the termination interests execute the notice. Executors, trustees, etc. come next.
Termination Rights Under the 1998 Term Extension Act
This law gives most authors or successors another opportunity to terminate a transfer for the added 20 years of protection given by this Act (95 years total rather than 75). The author has the opportunity effective during the five years following the 75 years of protection to terminate such a transfer, provided the work was in its renewal term at the time of the law and where the rights had previously been transferred before January 1, 1978. If the old law termination right had expired and if that termination right was never exercised, then the new termination right would be available. Any termination notice must be recorded in the U.S. Copyright office prior to the effective date of the termination. This new right does not apply to works for hire.
Termination of Agreements Made During or After 1978
In addition to the termination procedures established with respect to the extended copyright renewal period, the 1976 Copyright Revision Act also established termination procedures for compositions written on or after January 1, 1978. The act gives authors, their heirs, or duly authorized representatives the right to terminate a grand-of-rights contract effective during the thirty-sixth through fortieth year after the agreement was signed. If the grand-of-rights agreement covered publication of the work, the right to terminate can occur during the five-year period commencing at the end of the fortieth year after the signing of the agreement, whichever occurs first.
When the Termination Notice Must Be Sent
The termination notice must be served not less than two years nor more than 10 years before the effective date that is stated in the notice.
About the authors: Todd Brabec, Executive Vice President and Director of Membership for the American Society of Composers, Authors and Publishers (ASCAP), and Jeffery Brabec, Vice President of Business Affairs for Chrysalis Music Group, are Deems Taylor Award-winnng writers for excellence in music journalism. Former recording artists and entertainment lawyers, the twins are graduates of NYU School of Law and are Adjunct Associate Professors at the USC Thornton School of Music/Music Induattry Department where they teach the business of music publishing. Visit the authors at www./musicandmoney.com. © 2006 by Jeffrey Brabec and Todd Brabec, Schrimer Trade Books.