Copyright Recapture Battles Loom

According to Pamela A. MacLean writing for the National Law Journal on April 3, 2006, a copyright time bomb that has been quietly ticking away for nearly 30 years may soon explode into a flood of intellectual property litigation as authors begin to recapture their transferred copyrights.

To protect authors of older works from having to suffer with bad deals they entered into when they had little negotiating skill or leverage, Section 304(c) of the Copyright Act allows copyright owners (and their heirs) to terminate all grants, licenses or transfers of rights made prior to 1978 beginning on the 56th year after an assignment was made. As noted by Lloyd J. Jassin in Copyright Termination: How Authors (and Their Heirs) Can Recapture Their Pre-1978 Copyrights, "This allows authors to benefit from laws that extended the term of copyright from 56 years to 95 years."

[He also notes that post-1977 grants may be terminated during a five year period beginning 35 years after the grant was made. However, the 35- year rule only applies to grants made by the author after January 1, 1978. Consequently, the author’s surviving spouse or children may terminate assignments executed after January 1, 1978 only if the assignment was made by the now dead author.]

But "the devil is in the details," writes Jassen. "Any copyright proprietor wishing to terminate a grant, license or transfer of any copyright rights must provide at least two (2) years’ and no more than ten (10) years’ written notice to the person to whom the grant was made." That notice must also be filed with the U.S. Copyright Office.

In 2003, authors began entering that 10-year notice window for rights that will be recaptured in 2013. Ever since, publishers have been trying to avoid recapture losses by characterizing agreements with authors as "works for hire" where the publisher owns the original copyright. However, only certain types of works can qualify, and in the reported words of Kyle Staggs, director of legal affairs for Bug Music in Los Angeles, "If I am a record label, I am not going to let anyone think I don't have 100% control of my sound recordings."