Copyright Recapture For Authors, Heirs and Estates

Bill Gable regularly represents authors, their heirs and estates in the area of terminations.   He provides termination services on behalf of many kinds of “authors,” including songwriters, composers, recording artists, novelists, illustrators, photographers, architects, choreographers – in short, any creator of an original musical, literary, artistic or other creative work that is protected under copyright law.  Mr. Gable has decades of experience as a professional musician (see Biography) and as a result a number of his termination clients are songwriters and musicians.

Preparing For Copyright Recapture

Although the law of terminations is far more complex than can be discussed here, generally speaking, copyright recapture works this way: 

• Contracts entered into by an author in 1978 or later may be terminated 35 years after the date of the grant.  There is a special rule for publishing agreements that usually allows authors or their heirs to recapture rights to published works 35 years after the date they were published and unpublished works 40 years after the date of the grant.

• For contracts entered into before 1978, rights to an author's work under those grants may be terminated 57 years after the copyright date of the work. There is a special rule for these contracts allowing the author a second opportunity to terminate after 76 years.  

Two more basic rules are:

• Generally speaking, the termination should be made on the earliest date allowed under the law since that allows the recaptured rights to ultimately vest in the author or the author's heirs as soon as possible.

• The author and his/her heirs must be certain not to wait too late to file their notice.  If they do, their rights to terminate will be forfeited at least for 19 more years, and in most cases lost forever.
  

Self-Education: It is sometimes difficult for a client to benefit from the law of terminations without some knowledge of how terminations work.  A bit of knowledge and preparation also can help a client keep legal costs down.

To learn more about terminations, this website contains various materials aimed at educating parties potentially affected by termination rights.  It includes reprints of two articles on terminations written by Mr. Gable.  “Introduction to Terminations of Copyright Transfers,” reprinted from the California Copyright Conference April 2008 newsletter, explains generally how terminations work, and was primarily written for music industry professionals.  “Taking It Back,” reprinted from the June 2008 issue of Los Angeles Lawyer Magazine, briefly discusses a few intricacies of terminations law, and was primarily written for practicing attorneys having little or no experience with terminations. 

(Note that the Steinbeck case discussed in both articles was later overturned in part by the Second Circuit, and that additional case law has developed since these articles were written.)

Special Note on “Works Made For Hire:” As both articles make clear, “works made for hire” are not terminable.  But the law regarding what constitutes a “work made for hire” is complicated and unresolved, and just because a document says a work is a “work made for hire” doesn’t make it so.  Until the law is settled, terminations notices for many of these works must be filed. 

Document and Information Gathering:  A “termination” involves the termination of a specific “transfer” – another word for a contract.  To effectuate a termination, the law requires serving the current “grantee” with a “notice of termination.”  Therefore, in preparing for a termination, a potential client does well (if possible) to locate a copy of the contract that will be terminated, and to locate paperwork identifying the name and address of the party who should receive the notice.  Although some further information will be required, Mr. Gable will discuss this with the client.  Certain situations involving joint and/or deceased authors can require additional document and information gathering. 

Strategic Planning:  What should the author or his or her heirs do with a copyright once they have recaptured it?  Some thought should be given to this, even if the answers aren’t readily apparent.  For example, in the case of a songwriter, does the client want to recapture rights to as many songs as possible and then self-administer rights, or allow someone else to?  Or to assemble as many copyrights as possible and then sell the catalog?  Or simply to enter into a new single song agreement with the old publisher, perhaps on better terms?  Or to sign with a different publisher?  In certain instances, knowing the answer in advance may affect the strategy used in terminations.   It is helpful if the client begins thinking about this.

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The materials contained on this website are intended for general informational purposes only, may not be taken as legal advice and are expressly conditioned on and subject to the Disclaimer. (Please read the Disclaimer to better understand why it is impossible to render legal advice over this website.) Obtaining Bill Gable’s legal services requires a signed engagement letter following appropriate interviews, clearance of conflicts and payment of a retainer based upon the scope of work contemplated.