Copyright Termination Rights in the US

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Copyright Termination Rights in the US

This will be of interest to any Canadian recording artist who made a recording in 1978 or later while signed to a US record label.

Under the US Copyright Act, an artist signed to a US record company may, 35 years after a recording was made, give notice to the record company to terminate their transfer of copyright to that record company. This effectively means that the copyright in the recording reverts to the artist.

The year 2013 is the first year that falls 35 years after the 1978 Copyright Act came into force. But bear in mind that, each year, a new crop of recordings becomes eligible for termination.

There is a two-year window during which notice can be delivered. For example, for recordings made in 1978, notice must be given during 2011-2012. So there are only six months left to give notice for 1978 recordings.

Of course, the termination provisions have already given rise to litigation in the United States. To reject artists’ termination claims, record companies say their recordings were “works made for hire” (a distinctly US concept), either because the artists were employees or because the recordings were ”specially commissioned works.” The Copyright Act specifically exempts “works made for hire” from the termination provisions.

In fact, calling the recordings “works made for hire” in the contract does not make them so. And it would be difficult to establish in most cases that artists were actual “employees” of the record company, although perhaps easier to establish that the recordings were “specially commissioned works.”

In the end, however, the recording company’s defence may break down simply because a sound recording is not one of the enumerated “works” that can be “works made for hire.”(Note that musical works are enumerated, so tread carefully if you want to invoke the termination provisions to get back songs you assigned to a music publisher in 1978).

One looming problem on the horizon is that it is not altogether clear who is the “author” of a sound recording. Arguably, it is the performers under contract, but we might see background players, producers and engineers assert their roles as co-authors as well. And of course, the bigger the hit, the more claimants we can expect to join the fray.

Craig Parks is a director on the CMA Ontario Board and sits on the Governance Committee