Protecting Your Musical Copyrights

by Lisa Alter

Copyright © 2008 by Lisa Alter. All Rights Reserved

What is a musical composition? A series of notes and chords? Words and melody? Poetry and rhythm? A musical composition may mean different things to different people, but according to United States copyright law a musical composition is an original work of authorship fixed in a tangible medium of expression. Compositions are a type of intellectual property, protected by copyright. Copyright protection extends to the musical work, including both music and lyrics, but not to the idea that gives rise to or is expressed by the composition. A copyright in a musical composition vests in the owner a myriad of privileges and protections codified in the copyright laws of individual countries as well as international treaties and conventions. This publication focuses primarily on those sections of the United States Copyright Act (the “Copyright Act”) most relevant to authors, owners, and licensees of musical compositions.

United States copyright law can be extremely complex; however it is important that anyone with an interest in a musical composition, including authors, heirs, music publishers, and administrators, have a basic understanding of the key aspects of the law in order to effectively protect and exploit their musical property. This handbook sets forth fundamental guidelines for the safeguarding of your copyrights from creation until the date each composition enters the public domain. The handbook is intended as an overview. For a specific understanding of the application of the principles contained herein to your own catalogue, you should consult with a copyright attorney and review the more detailed information available from the Copyright Office. *

Copyright—An Overview

Copyright Ownership

Copyright in a work automatically vests in the author upon creation of the work. Authors of joint works are co-owners of copyright. Authors of works contributed to collective works own the copyright only in their contribution, which is distinct from the copyright in the collective work. In the case of a work made for hire, where a work is created by an employee within the scope of his or her employment, copyright belongs to the employer.

Joint Works

In the United States, a composition written by two or more authors is generally deemed to be a “joint work,” which is defined as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” Ownership of joint works is presumed to be shared equally by the authors, absent an agreement to the contrary. Each author of a joint work is free to enter into a non-exclusive license for the entire work, provided that the author issuing the license accounts to his or her coauthor( s). In some cases, co-authors enter into an agreement among themselves, agreeing to work cooperatively in issuing licenses. As a practical matter, licensees of music publishing rights often insist on obtaining approval on behalf of each author of a work even if the grant of rights is nonexclusive.

Scope of Copyright

Section 106 of the United States Copyright Act lists six exclusive rights of the copyright owner, which include the rights:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copy righted work to the public by sale or other transfer of ownership, or by rental, lease or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Transfer of Copyrights

Copyright ownership may be transferred through assignments and contracts made by the original or subsequent copyright owner. If an author or current copyright owner passes away leaving an estate that includes works under copyright, ownership will pass either to the beneficiary designated in the author/owner’s will or, if there is no will, to the author/owner’s legal heirs.

What Are Music Publishing Rights?

The broad bundle of rights that are associated with a musical copyright are known as “music publishing rights.” These rights are not defined by statute but rather are terms recognized in the music industry. Similarly, the concept of the “writer’s share” versus the “publisher’s share” is based in practice, not law. Traditionally, 50% of the income derived from the exploitation of a composition is deemed to constitute the publisher’s share and 50% the writer’s share. Where the author assigns the copyright in the composition to the publisher, the publisher generally collects 100% of the income and, after deducting costs, remits the balance to the author. Other typical types of arrangements between authors and music publishers include copublishing agreements, under which the copyright ownership is shared by the author (or heir) and publisher; administration agreements, under which the author (or heir) retains the copyright ownership and the publisher administers the rights; and co-administration agreements under which the author (or heir) retains the copyright ownership and co-administers the rights with the publisher. The performing rights societies have subscribed to the distinction between writer and publisher shares and allocate monies accordingly, usually paying the writer’s share directly to the author or his/her heirs.

Music publishing rights are generally understood to include the following:

Non-dramatic or “Small” Performance Rights

Dramatic or “Grand” Rights

Synchronization Rights

Mechanical Rights

Print Rights

Concert Rental Rights

New Media Rights

Copyright Duration

Bifurcated Duration Provisions Under US Copyright Act

The United States copyright law is unique in that the duration of the copyright differs depending on the date of creation of the work, as well as the date the work is initially registered or published.

Pre-1978 works

Works created and copyrighted (that is, registered or published) prior to January 1, 1978, are protected for 95 years from the date the copyright was originally secured (95 years from the earlier of the registration or publication). The 95-year period is divided into an initial term of 28 years and a renewal term of 67 years.

Works created prior to January 1, 1978, that were neither copyrighted nor fell into the public domain before that date are protected for the life of the author plus 70 years, provided (i) in no event shall the term of the copyright in such a work expire before December 31, 2002, and (ii) if such a work is published on or before December 31, 2002, the term of the copyright shall not expire before December 31, 2047.

Works registered for copyright or published prior to January 1, 1923, are in the public domain in the United States.

Post-1977 Works

Works created on or after January 1, 1978, are protected for the life of the author plus 70 years. In the case of a joint work, protection continues for 70 years after the death of the last surviving author.

Anonymous Works; Pseudonymous Works; Works Made For Hire

The copyright term for an anonymous or pseudonymous work as well as a work made for hire endures for the shorter period of either 95 years from publication or 120 years from creation.

Registering works

Original works may be registered at any time after their creation. Although copyright is now secured automatically upon the creation of a work, it is advisable to officially register a copyright with the Copyright Office. To register a musical work, request application form PA from the Copyright Office and return it with the requested material.

Discrepancy in Duration Provisions

It is generally believed that the term of protection for works registered or published prior to January 1, 1978, is roughly equivalent to the term of protection for works created on or after that date. However, this is often not the case. Imagine, for example, a 20-year-old author who creates a composition and registers it for copyright in 1960. The author dies at the age of 85 in 2025. The song registered in 1960 will enter the public domain in the United States on January 1, 2056, just 30 years after the author’s death. Compare this to a 20-year-old author who creates a composition and registers it for copyright in 1980. The author also dies at the age of 85, in 2045. The song registered in 1980 will enjoy copyright protection until 2116—a full 40 years longer than the song from 1960. Clearly, the bifurcated duration provisions have not accorded the earlier author or his/her heirs protection equivalent to the life-plus-70 protection accorded authors of works created on or after January 1, 1978.

Registration and Renewal of Copyrights

Registering Works

Original works may be registered with the Copyright Office at any time after their creation. Although copyright is now secured automatically upon the creation of a work even if no registration is made, it is advisable to officially register a copyright with the Copyright Office in order to establish priority as well as to document title. To register a musical work, request Application Form PA from the Copyright Office and return it with the requested material. You may also print out and fill in Form CO from the Copyright Office website and send it in with the requested material. The fee for both types of registration by mail is currently $45. In addition to these two methods, the Copyright Office allows you to register works online using the eCO Online System. This option provides the fastest processing times and currently costs $35. For a tutorial on how to use this system and more information about registering works visit the eCO Page of the Copyright Office’s website.

Renewing copyrights

The process of copyright renewal applies only to works registered or published before January 1, 1978.

Works registered or published prior to January 1, 1964, must have been formally renewed (i.e., a renewal application must have been registered with the Copyright Office during the 28th year of copyright). Failure to renew caused the work to enter the public domain upon the expiration of the initial 28-year term of copyright.

Works originally registered or published between January 1, 1964, and December 31, 1977, benefit from automatic copyright renewal. Although the filing of a renewal application is not mandatory for these works, there are several advantages to filing renewals with the Copyright Office. A renewal registration in the 28th year records the interest of the renewal claimant in the work for the renewal term. Additionally, a renewal certificate can serve as prima facie evidence of copyright and allow the claimant to object to the creation of an unauthorized derivative work. Most significantly, with respect to posthumous renewal, the timely filing of a renewal application by the heirs of the author, where the heirs were not party to a prior renewal term grant, ensures that prior licensees shall not be entitled to continue to exploit either the original work or derivative works based thereon without the permission of the heirs.

Publication of Copyrighted Works

Publication is defined in the Copyright Act as the “distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” Since January 1, 1978, the inclusion of a composition on a sound recording has constituted publication. The simple public performance of a composition does not constitute publication. The date of publication of a work may be significant in determining the duration, as well as statutory termination windows, of the work.

Vesting of Renewal Term Rights in Pre-1978 Works

Ownership of Renewal Term Rights When Author Survives the Renewal Term

If an author lives into the renewal term of copyright, the ownership of the renewal term rights rests with the author unless the author has entered into an agreement transferring renewal term rights. If the author conveyed rights to a music publisher for the full term of copyright, including renewals and extensions thereof, the music publisher will continue to own the work in the renewal term subject to the applicable statutory termination provisions. If the author granted rights only for the initial term of copyright, rights will revert to the author on the commencement of the renewal term of copyright.

Effect of Author’s Death During the Initial Term of Copyright

If an author dies before the end of the 28th year of copyright, the renewal term rights automatically vest in the author’s heirs (which may include the widow/widower or children of the author, the author’s executor(s), or the author’s next of kin) regardless of whether the author assigned the renewal term of copyright to a third party prior to his or her death*. A limited exception to this rule occurs if the author properly renewed the copyright during the 28th year of copyright, assigned the renewal term rights in the composition during that year, and subsequently died. In this limited circumstance, renewal term rights will remain with the assignee.

In general, when an author dies during the initial term of copyright, an assignee of the author such as a music publishing company may not rightfully claim the copyright during the renewal term unless (i) the author’s heirs were party to an initial grant of renewal term rights, or (ii) the author’s heirs subsequently assign the copyright for the renewal term to the music publisher. If an heir fails to advise the music publisher that the heirs have secured the renewal copyright and are reclaiming renewal term rights, the publisher may continue to collect on copyrights in the renewal term.

Even when an author’s heirs were signatory to a grant of renewal term rights, where an author leaves multiple heirs it is important to ascertain if all of the heirs were actually party to the grant. For example, if an author’s wife and two children signed a renewal term contract, but the author’s youngest daughter was not yet born, the youngest child will be able to claim her share of the renewal term rights even though the grant will subsist with respect to her mother and siblings.

While no explicit statutory notice requirements or procedures are prescribed in order to claim a renewal interest, the failure to make a timely claim may limit retroactive recovery. Accordingly, heirs should “claim” their rights in the renewal copyright as soon as possible by sending letters of notification to the music publisher as well as the applicable performing and mechanical rights organization. It is important to note that the vesting of renewal term rights in an author’s statutory heirs applies only to such rights in the United States. While the statute does not limit the territorial scope of the reversion of rights, custom in the industry limits the scope of the reversion because the notion of a renewal term of copyright is unique to the United States.

The foregoing rules regarding the vesting of renewal term rights in the author’s statutory heirs apply with respect to all exclusive and non-exclusive grants of copyright other than works-for- hire and grants made by will.

Statutory Termination of Transfers/ “Recapturing Copyrights”

Pre-1978 Works

Section 304(c) Termination

Under Section 304(c) of the Copyright Act, grants or licenses of pre-1978 copyrights executed before January 1, 1978, by the author or his/her heirs may be terminated during a 5- year period beginning 56 years after the earlier of registration or publication. This 5-year period is commonly referred to as the “termination window.” Any exclusive or non-exclusive grant may be terminated, with the exception of a grant of rights in a work-for-hire or grants made by will.

A grant may be terminated even if the original contract states that the grantee shall be entitled to retain its rights for the entire term of the copyright, including renewal and extended terms, because the statutory termination right overrides the contract.

If the author dies before exercising the termination right, the termination interest vests in the author’s heirs, who are defined by statute to include the author’s widow or widower, children, or grandchildren, or, in the event the author’s widow or widower, children, or grandchildren are not living, the author’s executor, administrator, personal representative, or trustee. Termination may be exercised only by following the procedures for notice and recordation outlined by the Copyright Act and Copyright Office Regulations.

Notice of termination must be served on the grantee or grantee’s successor in title no more than 10 nor less than 2 years before the effective date of termination. That is, notice must be served anytime during the period beginning 46 years after the original copyright date and continuing until 59 years after the original copyright date.

It is important to note that while renewal applications may be filed at any time during the calendar year in which the 28th anniversary of copyright occurs, the date of the start and close of the 5-year termination window corresponds with the original month and day of copyright. For example, if the original copyright date is April 29, 1950, then the earliest possible effective date of termination is April 29, 2006. In this case, the earliest possible date for serving notice of termination is April 29, 1996. The latest possible effective date for termination in this example is April 29, 2011, and the latest possible date for serving notice of termination is April 29, 2009. While it is recommended that the author or statutory heir(s) serve notice of termination on the earliest date possible, notice is timely if it is served at any time up until the date 2 years before the end of the 5-year termination window. Absent proper notice of termination, rights in the work will remain with the grantee.

Terminating Grants Under Section 304(c)

Section 304(d) Termination—A Second Bite at the Apple?

Section 304(d) of the Copyright Act affords the author or the author’s heirs another opportunity to terminate pre-1978 grants under copyright in the following limited circumstances: (i) the work was originally registered or published on or before October 26, 1939; and (ii) the author or heirs failed to exercise termination rights under Section 304(c). Any exclusive or nonexclusive grant that meets the foregoing criteria may be terminated with the exception of a grant of rights in a work-for-hire or a grant made by will. Termination under Section 304(d) may be effected at any time during the 5-year period beginning 75 years after the original copyright date (the “Section 304(d) Termination Window”).

Similar to Section 304(c) termination, if the author dies before exercising the termination right, the termination interest vests in the author’s heirs, who are defined by statute to include the author’s widow or widower, children, or grandchildren, or, in the event the author’s widow or widower, children, or grandchildren are not living, the author’s executor, administrator, personal representative, or trustee. Termination may be exercised only by following the procedures for notice and recordation outlined by the Copyright Act and Copyright Office Regulations. Included in the Copyright Office Regulations is a provision that the Section 304(d) termination notice must specify that notice of termination was not served pursuant to Section 304(c). This precludes the termination claimants from recapturing rights under Section 304(c), re-conveying the recaptured rights, and then once again serving a notice of termination.

Notice of termination under Section 304(d) must be served on the grantee or the grantee’s successor in title no more than 10 nor less than 2 years before the effective date of termination. That is, notice must be served at any time during the period beginning on the date 65 years after the original copyright date and continuing until 78 years after the original copyright date.

As with Section 304(c) terminations, the date of the start and close of the 5- year termination window under Section 304(d) corresponds with the original month and date of copyright. For example, if the original copyright date is June 1, 1930, then the earliest possible effective date of termination is June 1, 2005. In this case, the earliest possible date for serving notice of termination will be June 1, 1995. The latest possible effective date of termination in this example is June 1, 2010, and the latest possible date for serving notice of termination is June 1, 2008.

While it is recommended that the author or statutory heir(s) serve notice of termination on the earliest date possible, notice is timely if it is served at any time up until the date 2 years before the end of the 5-year termination window. Absent proper notice of termination, rights in the work will remain with the grantee.

Terminating Grants Under Section 304(d)

* Provided that the work was originally copyrighted on or before October 26, 1939.

Post-1978 works

Section 203 Termination

Grants of works executed by the author on or after January 1, 1978, may be terminated under Section 203 of the Copyright Act under slightly different conditions from those applicable to pre-1978 works. Unlike termination pursuant to Sections 304(c) and 304(d), Section 203 termination is based on the date of the grant rather than the date of initial registration or publication of the work. Accordingly, Section 203 termination may be available to a work regardless of whether it was initially created or copyrighted before, on, or after January 1, 1978, as long as the grant was executed by the author on or after January 1, 1978. Moreover, the termination provisions of Section 203 are limited to grants executed by the author. This means that any grants or licenses executed by the author’s successors on or after January 1, 1978, are not subject to statutory termination. The Section 203 termination right does not apply to a grant of rights in a work-for-hire or a grant made under will.

Grants executed by the author on or after January 1, 1978, may be terminated during a 5- year period beginning 35 years after the date the grant was made; or, if the grant includes the right of publication of the work, during the 5-year period beginning on the earlier of (i) 35 years after the date of publication under the grant, or (ii) 40 years after the date of the grant. Note that for grants of rights in subsisting, previously published, copyrights, the date of the grant will generally be contemporaneous with the date of publication under the grant. A different result may occur if the work was out of publication as of the date of the grant.

If the author dies prior to serving notice of termination under Section 203, the termination interest vests in the author’s heirs, who are defined by statute to include the author’s widow or widower, children, or grandchildren, or, in the event the author’s widow or widower, children, or grandchildren are not living, the author’s executor, administrator, personal representative, or trustee.

If the composition subject to termination is a joint work and the grant was executed by two or more of its authors, then the termination must be effected by a majority of the authors who executed the grant (in the case of a deceased author, the termination notice may be executed by his/her heirs). This means that in the case of a grant executed by 2 authors of a work, those authors or their heirs must work cooperatively to serve notice of termination.

Notice requirements

Notice of termination under Section 203 must conform to the procedures for notice and recordation outlined by the Copyright Act and Copyright Office Regulations.

Notice of termination under Section 203 must be served on the grantee or the grantee’s successor in interest no more than 10 nor less than 2 years before the effective date of termination. That is, notice must be served any time during the period beginning 25 years after the date of the grant and continuing until 38 years after the date of grant; provided, if the grant includes the right of publication of the work, notice must be served during the earlier to occur of (i) the period beginning 25 years after the date of publication and continuing until 38 years after the date of publication, or (ii) the period beginning 30 years after the date of the grant and continuing until 43 years after the date of the grant.

The right of termination accorded under Section 203 of the Copyright Act is not limited to circumstances in which an author has failed to exercise the right to terminate a prior grant under Section 304(c). Imagine, for example, an author who registers a song for copyright on March 1, 1930, assigns the right to a music publisher in April of that year, and serves notice of termination on the music publisher pursuant to Section 304(c) effective March 1, 1986. After serving notice of termination, the author reassigns the copyright in the song to the original music publisher.* Beginning in April 2011, the author or his heirs may serve notice of termination on the publisher effective April 1, 2021.

As of January 1, 2009, the effective date of termination under Section 203 has not yet occurred for any copyright. The earliest effective date of a grant made by an author on January 1, 1978, is January 1, 2013.

To Terminate a Transfer or Grant Under Section 203

*In no event will the termination window begin later than 40 years after the date of the grant.

Termination by the Heirs of a Deceased Author

Each of the statutory termination provisions (both pre-1978 and post-1977) stipulates that in the event an author dies before serving notice of termination, the author’s right of termination is owned and may be exercised by his/her statutory heirs.

In order to exercise the termination right of a deceased author, a majority of the statutory heirs must be signatory to the notice of termination. As a practical matter, this means that in the event that the author has more than one statutory heir, a certain degree of cooperation is necessary in order to recapture rights. For example, if an author dies leaving a spouse and 3 children, at least the spouse (50%) and 1 child (16.7%) must be signatory to the notice of termination. If an author dies leaving no spouse but 7 children, at least 4 of those children must be signatory to the notice of termination. It is not unheard of for rights to remain with a publisher because the author’s statutory heirs are not able or willing to cooperate to recapture rights.

Statutory Termination Provisions Are Limited to the United States

An argument may be made that if a grant of worldwide rights is made in the United States under United States law and the grant is subsequently terminated by the author or his/her heirs pursuant to Section 304(c), 304(d), or 203 of the Copyright Act, then the termination would end the grantee’s rights throughout the world. However, the customary understanding is that because the termination right is unique to the United States copyright law, only the grant of rights in the territory of the United States is subject to termination.

Falling Between the Termination Cracks

It is generally believed that any grant under copyright made by an author would be subject to termination under one of the statutory termination provisions. However, there are instances in which such a grant may fall outside the scope of any of the termination provisions, and other instances in which it may not be clear which termination provision applies.

Example 1. An author enters into a term songwriter agreement with a music publisher in 1970, pursuant to which he grants to the publisher all rights under copyright to every composition he writes during the 3-year period beginning January 1, 1970. The grant is a worldwide grant for the life of copyright in each of the compositions and any renewals or extensions thereof. In 1972, the author writes a composition entitled “Unsung Melody.” The work is not registered or published. The author dies in 2002. The music publisher publishes the composition in 2005. The author’s heirs will not be able to terminate the grant of rights to “Unsung Melody” under Section 304(c) of the Copyright Act because the work was neither registered nor published prior to January 1, 1978. The heirs will not be able to serve notice of termination under Section 203 because the composition was not the subject of a grant made by the author on or after January 1, 1978. A strict construction of the copyright termination provisions reveal that the grant of rights in “Unsung Melody” is not subject to termination.

Example 2. An author enters into a term songwriter agreement with a music publisher in 1977 pursuant to which she grants to the publisher all rights under copyright to every composition she writes during the 5-year period beginning January 1, 1977. The grant is a worldwide grant for the life of copyright in each of the compositions and any renewals or extensions thereof. In 1980 the author writes a composition entitled “Three Years Together” and the publisher publishes the composition in that year. The author is looking forward to terminating her agreement with the music publisher and recapturing this composition. She may not rely upon the Section 304(c) termination right because the composition was not registered or published prior to January 1, 1978. The agreement was executed by the author prior to January 1, 1978, so an argument might be made that the author similarly does not have the right to terminate the grant under Section 203. However, the better approach is to imply a grant by the author made as of the date that the song was created in 1980 and to find that the author has the right to terminate the grant 35 years after the date of publication of the composition.

Re-assignment of Terminated Rights

The termination provisions contain a safeguard for the original grantee (or that grantee’s successor in title) that prevents the author or his/her heirs from granting the terminated rights to a third party until after the effective date of termination. An exception is made for a further grant to the original grantee or its successor in title. In effect, this allows the original grantee an exclusive negotiation period that begins on the date notice of termination is served and continues through the effective date of termination. A grant made to a third party during this period is invalid.

Contractual Termination

The statutory termination provisions enable an author or the heirs of a deceased author to terminate perpetual or “life of copyright” grants under copyright. However, in certain cases it may not be necessary to invoke the statutory termination provisions if a contract itself provides for the expiration or termination of the grant. Some contracts provide for early termination in the event that certain events occur (such as breach by, or bankruptcy of, the grantee) or that certain events fail to occur (such as the failure to meet a minimum guaranteed royalty). Other grants are in the form of option agreements under which rights terminate in the event that an option is not exercised. It was not uncommon prior to 1978 for a grant to be limited on its face to the initial 28-year term of copyright, or for a grant to specify that it was to persist for a limited term of years. It is established case law in the United States that a pre-1978 grant will persist in the United States for the initial term of copyright only unless the grant specifically includes a grant of the renewal term of copyright.* Note, however, that the general understanding is that the grant will continue to control outside the United States in these instances unless specific provisions are included in the contract that provide for a limited term outside the United States.

During the mid-twentieth century, a series of original and renewal songwriter form agreements were published by the Songwriter’s Protection Agency, successor in interest to AGAC and predecessor in interest to the Songwriter’s Guild of America. It is worth noting several of the most commonly used of these forms, which contained specific provisions relating to the term of the contract. While the contract must be reviewed in each instance to determine if the parties amended or modified the standard terms, a basic familiarity with these provisions will alert you to a possibility that a grant will terminate at least in some portion of the territory by virtue of the standard language of the agreement.*

The 1939 Uniform Popular Songwriters Contract

The 1939 Uniform Popular Songwriter Contract (the “1939 UPSC”) provides for the grant of rights in a musical composition and the right to secure copyright in the composition throughout the world, including “the right to have and to hold the said copyright and all rights of whatsoever nature thereunder existing.” Since the 1939 UPSC does not specifically grant rights for the renewal and/or extended term of copyright, the form is generally understood to convey rights in the United States for the initial 28-year term of copyright only. With respect to the rest of the territory (the world excluding the United States) the grant is understood to persist for the life of copyright in the song in each country of the territory.

The 1947 Revised Uniform Popular Songwriters Contract

The 1947 Revised Uniform Popular Songwriters Contract (the “1947 UPSC”) provides for the worldwide grant of copyright in the subject compositions. The agreement provides that rights will revert to the author in the United States and Canada at the end of the initial term of copyright, or 28 years from the date of publication in the United States, whichever is shorter. The 1947 UPSC does not provide for automatic termination and reversion of rights outside the United States and Canada but does provide in Paragraph 8 that if the author intends to offer for sale the rights in the composition outside the United States and Canada, he/she must give the publisher 6 months’ prior written notice of such intention. This notice is known in the industry as the “Paragraph 8 Notice.” The 1947 UPSC does not specify when the Paragraph 8 Notice may be served. While the position of some music publishers is that the notice must be served 6 months prior to the expiration of the initial term of copyright, this argument is not supported by the language of the contract. The better interpretation is that the Paragraph 8 Notice may be given at any time (after the initial term of copyright) that the author or his/her heirs decide to offer the rights in the song for sale outside the United States and Canada.

The 1950 Renewal Agreement

The 1950 Uniform Popular Songwriters Renewal Contract (the “1950 UPSRC”) provides for the grant of rights for a period equal to the shorter of (i) the second or renewal period of the United States copyright, or (ii) 28 years after the expiration of the first original term of the United States copyright. The 1950 UPSRC provides, further, that on the expiration of the 28-year term the rights to the composition will revert to the author throughout the world, unless foreign rights were granted to a foreign publisher before 1947. The effect of a grant of renewal rights utilizing the 1950 UPSRC is that even if the original songwriter agreement was construed to convey rights outside the United States for the life of copyright in the composition, the grant will only persist until the date 28 years after the original term of United States copyright.

The Implications of Foreign Copyright Law

While our focus in this publication is United States copyright law, certain provisions of foreign copyright law are particularly relevant to creators and owners of musical copyrights and will be briefly touched on here.

“Joint” or “Collective” Works

In the United States, a song written by two or more authors is deemed to be a “joint” work regardless of whether one author composed the music and one author wrote the lyrics or all authors wrote both music and lyrics. This is not the case in certain major foreign territories including Australia, England, Germany, Japan, the Netherlands, New Zealand, Scandinavia, and South Africa. In these “non-joint” countries where one author writes lyrics and one author composes music, the music and lyrics are each deemed to be an independent contribution to a collective work. The copyright, in this case, runs individually with each of the music and lyrics. The status of a work as “joint” or “non-joint” may have implications with regard to duration of copyright, allocation of royalties, and reversionary rights.

Duration of Copyright

Outside of the United States the duration of copyright protection is generally measured by a term of years after the death of the author. In countries in which all songs are deemed joint works, the term is based on the date that the last author dies. In countries in which only songs for which all authors both compose and write lyrics are deemed joint works, the term of protection for “non-joint” compositions is measured individually for each of the composer and the lyricist. The following summarizes the current term of copyright protection in several major foreign countries. This list is not complete, and you should check the individual laws of each country.

In each instance the copyright subsists through December 31 of the final year of copyright protection.

British Reversionary Right

The service of a notice of termination under the Copyright Act is generally believed to effect a termination of rights in the United States only. While there may be a legal or contractual basis for also reclaiming rights outside the United States, this must be evaluated on a case-bycase basis. In addition, an analysis of the relevant foreign copyright laws is recommended. Particularly with respect to older works, the possible application of foreign copyright laws relating to the posthumous reversion of copyrights should be considered. Many foreign jurisdictions recognize some form of reversionary interests. Foremost among the foreign reversionary laws are the provisions relating to the “British Reversionary Right.”

The United Kingdom Copyright Act of 1911 provided that copyrighted works granted to a third party automatically revert to the author’s heirs, successors, or legal representatives 25 years after the death of the author under the following circumstances: (i) the author is the first copyright owner of the work, and (ii) the grant being terminated (e.g., the publishing agreement) was made by the author (grants made by the author’s heirs are not terminable under the Copyright Act of 1911). The Copyright Act of 1911 applied to all of the so-called “British Reversionary Territories” or “BRTs”—that is, all countries that were part of the British Commonwealths as of 1911. *

With the passage of time, the individual countries that made up the British Reversionary Territories adopted their own copyright laws, and those laws have also been amended over time. In most of the major BRTs, the concept of a reversionary right was deleted from the law, and in these countries the right exists only until the date that the respective law changed. Accordingly, in the United Kingdom the reversionary right applies only to grants made by the author on or before June 1, 1957. In New Zealand, the reversionary right is available for grants made by the author on or before April 1, 1963. In South Africa, the right applies to grants made by the author on or before September 10, 1965, and in Australia the right is available for grants made by the author on or before May 1, 1969. The reversionary right exists to this day in Canada.

In the “non-joint work” BRTs (all of the major BRTs other than Canada), the actual date of reversion depends on whether or not the work is a joint work. If the work is deemed “joint,” then the rights in the song revert on the later of (i) 25 years after the date of death of the first author to die, or (ii) the date of death of the last author to die. In these countries, if the work is deemed “non-joint” then the reversionary date is calculated separately for each author. In Canada, the reversion occurs 25 years after the date of death of the last author to die. While the Copyright Act of 1911 provides for the automatic reversion of rights in the subject works, as a practical matter the music publisher will continue to claim ownership in the songs (and retain the publisher’s share of income) until the author’s heirs assert their reversionary rights.

The Copyright Act of 1911 does not require that a particular form of notice be sent in order to claim reversionary rights. To facilitate your claim you should identify the author of the composition, the date of the original composition, the parties to the original contract and their successors in interest, the author's date of death, and the relationship of the reversionary claimants to the author (i.e., heirs, executor, trustee, or legal representative). There is no time limit on claiming reversionary rights; the claim may be made at any time following the 25th anniversary of the author’s death.

Given the popularity of American musical “standards” in the British territories, the British reversionary rights in these countries can be valuable indeed.

Concluding Thoughts for Authors and Heirs

For Composers and Lyricists

The job of a composer and lyricist is to create. It is very common for creators to leave the business of their creations to managers, agents, and lawyers. These professionals are generally well versed in the specifics of registering works for copyright and handling the transactional matters of licensing and selling copyrights. However, it is critically important for the future of your songs that you yourself have a basic understanding of the workings of the copyright laws and the legacy you are leaving for your heirs. Planning ahead for the ongoing management of your compositions and keeping careful and detailed records of copyright registrations, licenses, and grants will help ensure the smooth ongoing administration of your works. Your compositions are not only your legacy to your children and grandchildren; they are an important part of America’s cultural heritage. If you understand the rights and protections afforded to the author and his/her heirs by the copyright laws, you will be able to enhance the economic portfolio of your compositions. Careful safeguarding of musical copyrights helps to prevent the abuse of treasured works and ensures that the compositions receive the honor and appreciation they deserve.

For Heirs

Before you can determine the scope of the rights you have inherited and the potential for expanding the catalogue in the future (including claiming renewal term rights and/or terminating prior grants) you need as much information as possible. In a perfect world, the composer would leave you a file cabinet filled with precise information regarding the status of his or her musical compositions. The file would contain a complete list of songs written in whole or part by the composer, the identity of any co-writers, certified copies of all copyright registrations and renewal registrations, certified copies of all notices of termination served by the composer, an up-to-date copyright search report, and copies of all contracts entered into by the composer relating to the compositions (including agreements with co-writers, music publishers, performing rights organizations, managers, motion picture producers, record producers, and similar documents). However, it is the rare composer who is so attentive to the minutiae of copyright administration. Often, you will have to reconstruct the history of the composer’s work before planning for the catalogue’s future.

The Future Administration of Your Musical Copyrights

How Do You Administer Your “Recaptured” Compositions

Upon the effective date of termination of a grant, the songwriter or his/her heirs will identify a publisher for purposes of administering the music publishing rights in the song. At the outset, it is customary for this entity to be the songwriter’s or heirs’ wholly-owned publishing entity (be it a corporation, partnership, or d/b/a for the writer or heirs). The long-term administration of the compositions is generally handled in one of three ways—the catalogue may continue to be handled by the songwriter or heirs (self-published), the catalogue may be administered by a third-party music publisher, or the catalogue may be sold to a third-party music publisher.

Self-Administered Catalogues

In the event the songwriter or heirs decide to personally administer future exploitation of the catalogue, the copyrights in the compositions will be retained by the songwriter or heirs. The self-publisher will handle all requests for uses of the compositions as well as the marketing and proactive exploitation of the catalogue.

Administration Agreements

Alternatively, the songwriter or heirs and their publishing entity may enter into an administration agreement for a term of years with an unrelated music publisher (either the original publisher or a third-party music publisher). In this case, the copyrights in the compositions will be retained by the songwriter or heirs. The music publisher will be authorized to administer some or all of the music publishing rights in the compositions, subject to contractually established parameters (such as approval rights for the songwriter or heirs), deduct agreed-upon fees, and remit the balance to the songwriter or heirs. The amounts retained by the music publishing administrator, the advance and/or guarantee payable to the songwriter or heirs, and the scope of the rights granted to the music publishing administrator will be established in the negotiations between the parties.

Sale of Catalogue/Co-Publishing Agreements

Finally, the songwriter or heirs and their publishing entity may elect to sell all or a portion of the recaptured copyrights (or an interest therein) to an unrelated music publisher (either the original publisher or a third-party publisher). The sale of a partial interest in the copyrights is known as a “co-publishing” arrangement. While such a sale is usually for the life of copyright, it is possible to negotiate a sale for a limited term of years with a contractually established reversion date. The songwriter or heirs will usually retain the right to receive the writer’s share of the royalties generated from the catalogue and in the co-publishing situation a portion of the publisher’s share of the royalties. The author or heirs may also elect to sell all or a portion of the writer’s share of the royalties.

Remember, if you sell the copyrights in the songs that you own as a result of exercising your Section 304(c) termination right, you will not be entitled to subsequently recapture the rights under Section 304(d). Bear in mind also that a purchase price that seems substantial at the time of sale may prove to be inadequate in hindsight. You should carefully consider the options of self-publishing your catalogue or entering into an administration agreement prior to electing to sell your copyrights.

Concluding Thoughts for Music Publishers

Musical compositions are the key assets owned by a music publisher. Clearly, the business of publishing focuses on the exploitation of these assets. However, it is essential to the long-term vitality of the business that the publisher understand as much as possible about the underlying rights that accompany the assets. The ability to anticipate the possible statutory termination, contractual termination, or reversion of a composition will enable the publisher at a minimum to plan for a possible diminution of its catalogue and provide the publisher with information necessary to maximize the potential for reacquiring rights. Publishers in the market to acquire musical compositions similarly should conduct an in-depth evaluation of the current and future legal status of the catalogue. Legal due diligence is as important as financial due diligence in attributing a value to a potential acquisition.

About the Author

Lisa A. Alter is a partner in the firm of Alter & Rosen, LLP in New York City. Her practice focuses primarily on copyright law. She advises composers, musical estates, and music publishers and consults frequently on music publishing matters, including issues involving copyright due diligence, termination of grants, and recapture of copyrights. Ms. Alter has lectured frequently at law schools and professional meetings on these topics.

For information regarding the reprinting of all or a portion of this publication, please contact Lisa Alter at 212-707-8377; lisa@alterandrosen.com.