Back
Song Recapture for Canadians in the U.S.

Song Recapture for Canadians in the U.S.

Wednesday, October 28, 2015
ShareThis

Song Recapture for Canadians in the U.S. 

If you have assigned your songs in the US to a music publisher, you may be able to get them back after 35 years. This is known as copyright recapture. 


Life of Copyright and “Forever” Are Not the Same
GET YOUR COPYRIGHTS BACK
by
Linda Edell Howard, Esq.
(c) 2002, 2015 Linda Edell Howard

            The laws of the United States give authors and their “statutory heirs” two opportunities to terminate a grant and recapture rights in copyright previously given away, licensed (exclusively or non-exclusively), sold or even mortgaged, and even if the grant was “forever” (e.g., assignment, single song agreement, exclusive writer agreement, administration agreement, security interest for a loan, copublishing agreement, commissions payable to managers on song royalties, an outright sale, a synchronization license, etc.).

            An author’s “statutory heirs” are those provided by the Copyright Act, not those included in his/her will.

            Method One:  For works that secured copyright prior to 1978 (those registered prior to 1978 or published with notice prior to 1978) for which an author or anyone else transferred rights prior to 1978 other than by a will, an author may terminate the grant with respect to extended renewal term of copyright under that grant, and s/he or that author’s “statutory heirs” will own the extended renewal term of copyright, being the last 67 years of copyright protection.  Actual notice of termination is required in this instance, which must be served properly within an eight-year window (of not more than 10 years nor less than 2 years) from a date that falls within a five-year period beginning at the end of 56 years after copyright was secured.  As a rule of thumb, add 56 years from the date copyright was secured and subtract 10 years to find the first date to serve notice, but use actual dates here, not yearend dates.  To find the last date that notice can be provided, add 61 years from the date copyright was secured and subtract 2 years, and again, use actual dates, not yearend dates.  If no notice is provided, forever will mean forever.

            Method Two:  For works that secured copyright prior to 1978, common law copyrights (neither published nor registered prior to 1978) or works created after 1977 for whichthe author executed a grant other than by a will after January 1, 1978, that transfer may be terminated and that author or his/her “statutory heirs” will own the balance of the term of copyright (pre-1978 works being 67 years, post-1978 works being life of the longest living author of the work plus 70 years). Actual notice of termination is required in this instance, which must be served properly within an eight-year window (of not more than 10 nor less than 2 years) from a date that falls within a five-year period beginning either at the end of 35 years from the date the author signed the transfer (if the transfer did not include publication rights) or the earlier of 40 years from the date the author signed the transfer or 35 years from the date of publication of the work (after 1978, distribution of a phonorecord is publication of the underlying musical work)(if the transfer included publication rights). As a rule of thumb for grants that include publication, add the earlier of 40 years from the date the transfer was actually signed or 35 years from when the work was published and subtract 10 years to find the first date to serve notice, but use actual dates here, not yearend dates.  Add 5 years to whichever date you used and subtract 2 years to find the last date, and again, use actual dates, not yearend dates.  If no notice is provided, forever will mean forever.

            Reversion and recapture rights apply to any copyright, not just for musical compositions.  Termination is not available for works-made-for-hire.

Reversion and recapture rights may be effective outside the United States.

            This article is not intended to be a substitute for professional legal advice.  The specific facts that apply to each situation are unique and must be handled by an experienced professional.  Do not rely on this article for a determination of your legal rights.


Linda Edell Howard  
Partner
Adams and
            Reese LLP
901 18th Avenue South | Nashville, TN 37212
main 615.341.0068 efax 615.687.1540  |  fax 615.341.0596
linda.edellhoward@arlaw.com