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© C in a Circle - Now Showing: The Facts of (Copyright) Life and The (Copyright) Terminator

You should know that copyrights, unlike diamonds, are not forever. But they are for a long time.

Posted in Songwriter 101 on November 1, 2004 by

You’ve been lucky enough to find a publisher that accepted your song. You’ve signed an agreement with the publisher that gives it your copyright, as is the norm, and in exchange, provides you with a royalty agreement. That’s all well and good, but since the transfer of your copyright is irrevocable, is there ever any situation when you can get it back?

There is, but before I discuss that, you should know that copyrights, unlike diamonds, are not forever. But they are for a long time. You may see words in your songwriter-publisher agreement similar to “for the life of the copyright.” What does that mean?

The copyright in a song you write today or that you wrote last year or even earlier (as long as it was on or after January 1, 1978) will last for 70 years after you die. If you have co-writers, your song copyright will last for 70 years after the date when the last of you dies. So the copyright “life” of every song is different. (I am talking here about songs that were not commissioned to be written for certain special projects like films or television shows, which are probably “works made for hire” and have different life rules.)

Therefore, even though you have assigned your copyright away to your publisher, it is your and your collaborators’ lives that control how long that copyright will last. What happens when the post-death 70 years is up? Then the song enters the “public domain” or “goes PD,” as some like to say. Once a song is PD, it becomes dedicated to all people and can be used by anyone for any purpose without payment of any compensation to the last copyright owner, the publisher. Advertisers can put it into commercials at their whim, other composers can use the music to support new lyrics or vice-versa, sampling can be done without license, cover records can be made royalty-free, and so on. And if the publisher has no income from the song coming in, there is nothing to share with you.

But there are situations where a songwriter who assigned his/her copyright to a publisher can get it back before it goes PD. One way is if the publisher did not live up to his part of the agreement that you and he signed, and there is either a clause in the agreement allowing you to cancel the agreement and regain your copyright as a result, or the circumstances are such that, even without such a clause you can declare the agreement to have been “materially breached” and thus subject to being rescinded. But that last way has dangers if you rescind and you are wrong, so if you think you have a good reason for canceling your agreement for non-performance by the publisher, you should first consult a lawyer about it.

The other way to get a copyright back from a publisher is built right into the copyright law. It is called the termination right. This provision allows a writer who signed away his or her copyright to get it back after 35 or 40 years, depending upon whether it was intended to be published. The law and the regulations issued by the Copyright Office to support it has very detailed and specific requirements about how to notify the publisher that you are terminating, when to send the notice and what rights are recaptured when you terminate. For example, U.S. rights are the only ones that can be recaptured, leaving your publisher with copyright ownership elsewhere in the world even if you successfully terminated your copyright assignment. Also, certain works (such as recordings) that were properly authorized by the publisher before termination can still be used afterwards. And if you are inclined not to delay doing things, you can send a termination notice to the publisher as much as 10 years in advance! But the bottom line is that once you properly terminate, the ownership of the U.S. copyright comes back to you.

Since 35 years is a long way off, I won’t go into the gory details here, but now you know that a transfer of a copyright can indeed be reclaimed under certain circumstances. By then, you will know whether you’ve written a hit or a miss and can better assess your song’s worth. You may want to keep it with the same publisher, but you may not. The termination right gives you the option to take it elsewhere or even publish it yourself, which by that time you may want to do. Keep in mind that this right doesn’t apply if you write a work made for hire, whose copyright stays with the party who hired you to write the composition for 95 years from first publication or 120 years from creation, whichever is earlier. Then it goes into the public domain.

So you’ve signed a contract with a publisher, and the publisher was able to get it recorded by a major artist. The royalties start coming in, and you sit down to write your next hit. During one of your creative sessions, you decide that there is a well-known musical phrase from another person’s song that you want to use—only a few bars—to give your song a reference point. Can you use it? If so, how much of it can you “borrow”? Come back next time for the answers.

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