What if I told you that it was possible for you, the author of content, to take back ownership of your copyrights in your creations, such as recorded music, publishing, TV or film productions, or script, from the evil record label, production company, or studio that forced you to take a deal worth less than the potential you know it was worth, which turned out to be true years later.
I suspect that most people would have an answer similar to this, “Yeah, sure, but what about that God awful contract that I signed with the label’s attorney hovering over my shoulder so I wasn’t making smiley faces in my signature, and pointing out that I understood I was transferring ALL of my rights? How do you propose I get past that minor detail Mr. Attorney At Law?”
My response would be in the tone that Jor-El would likely have used with his son, Superman, if he had lived past the first scene of the movie (my reference to Superman is for a reason since that movie was released in 1978…read on). I would say, “Because you have the power that may actually trumps the contract that you signed, an inherent right to termination your copyright found in the U.S. Copyright Act. Particularly, there are two main reasons why you may possess this right:
First, Congress created this mechanism to prevent a restraint on the transfer of copyrights and to protect young authors from having to settle for bad deals that were made for the life of the copyright because the struggling authors had no leverage at the time the original deal was made. Believe it or not, taking advantage of such a situation is literally unconstitutional, so in the 1976 Copyright Act (which took effect on January 1, 1978) Congress ensured that the author would have a chance to re-evaluate the value of the copyright after 35 years, and either re-negotiate a deal that is more fair with the original contracting party, or go elsewhere and make a new deal with another party for the remainder of the copyright life. This may sound like Congress was being noble, but note that before the 1976 Copyright Act an author could renegotiate after 28 years so there was probably some lobbying going on to increase the time that an author could assert this right.
Second, federal law, such as the Copyright Act, always takes precedent over any state laws, such as contract law, so if a conflict exists between the two then the federal law wins. This means that the termination right found in the Copyright Act cannot be waived, sold in advance, or otherwise forfeited by contract. Even though an author signs a contract that says something like, “all rights are assigned for the life of the copyright”, such a provision is void and ineffective when it comes to an author’s right to terminate the contract assignment and regain control pursuant to the Copyright Act.
The reason that this is becoming a hot topic now is because January 1, 2013 will be the first time that an author can assert his/her/its termination rights, and to do so, the author is required to send a notice no later than January 1, 2011 (yes, just months away!). This means that the author of content created in 1978 could regain ownership if certain criteria are met, and authors of content created as late as 1985 are now eligible to serve their notices of termination. This will now be an ongoing right (i.e., authors of copyrights created in 1990 can regain their rights in 2025 by giving notice of such as early as 2015).
In my opinion, I think that it is unlikely that super star recording artists (i.e., “Van Halen”, “The Stones”, “Barry Manilow”), successful television shows (“Three’s Company”, “Cosby Show”, “Cheers”), or predictable blockbuster movies (i.e., “Grease”, “Superman”, “Back To The Future”) are going to terminate their rights without a brutal legal fight, but I’ll bet there are one or few hit wonders (i.e., “Macho Man” by the Village People, “Party All The Time” by Eddie Murphy, “Oh Sheila by Ready For The World), underrated TV shows that did well (“227”, “What’s Happening”, “Amen”) or cult movies (“Animal House”, “Pee Wee’s Big Adventure”, The Breakfast Club”) that are lacking properly drafted contracts somewhere down the line and are vulnerable to the original author asserting this termination right.
This is actually one of those topics where knowing the detail is crucial to actually take advantage. If anyone is interested in my explanation of the details let me know and I’ll write a part two.
- Richard B. Jefferson, Esq. -
This article is intended for entertainment and informational purposes only, including any examples used therein. It is a general discussion about the subject matter and nothing mentioned is intended to be specific legal advice whatsoever.