Welcome everybody. This is Mark Jaffe from Five Bridges. Mark is a wonderful attorney who really takes a focus on creative stuff and he’s agreed to come in and talk to us a little bit about getting your copyright back.
And little disclaimer, I said this last time, Mark is not your lawyer. He’s gonna be answering questions in the general sense, but he is not giving anyone specific legal advice. I’m saying that so he doesn’t have to, but you’re welcome to as well, Mark.
Hey, how are you doing? Good morning. Oh, I’m doing pretty good.
Thanks. Yeah, I thought to start off this conversation, because it’s titled Getting Your Copyright Back, I don’t want to presume anyone actually knows what we’re talking about. So just at this basic level, why might someone not have their copyright?
Quite often when you make a deal with a larger company, in particular recording artists with record labels, you are asked to assign the copyrights to that company. With a recording contract, we call it assigning a master’s, which really assigning is the sound recording copyright. And that contract will often say in perpetuity, which really means for the life of the copyright.
If you’re a songwriter, you might assign your rights to a publisher indefinitely. There are many different ways where you’re asked to assign the copyright or license something indefinitely. And you’re doing it at a time where there’s quite often a power imbalance.
So you’re not getting the best deal. Congress identified this and devised two laws to help artists get their copyrights back. The more precise language is to terminate that transfer or terminate that grants.
And this would be something that you can’t waive in the contract. So even if the contract says it’s private, even if the contract says you can’t terminate, you can’t. I mean, interjecting.
Was that like a million years ago? Oh, yeah. Abraham Lincoln Congress.
This is what years in the making. And what ultimately was introduced in the Copyright Act of 1976, effective January 1st, 1978. Now, there are two provisions for transfers before 1978 and transfer of 1978 and forward, which is what I typically deal with.
Everything I say going forward is riddled with asterisks and complications. Just keep that in mind. I’d have to talk forever if I clarified every single thing.
But with that post 1978 and USC 203, it’s 35 years later. We often say it’s 35 years after the assignment. That’s one of the ways it’s really inaccurate because often it’s going to be 35 years after publication of the work.
Publication being a very thorny copyright term where we will often mean the release date. And this is why we have guys like Martin. Yeah, this is one of the hardest things to do on one’s own.
If you’re doing it with someone who’s reluctant to agree, even though the law compels them to you absolutely need somebody fighting for you who understands this law. In fact, since it’s 35 years later, the first effective dates for termination rights were 2013 for a right that made it into copyright law in 1978. So we had literally decades to ponder and think about this and how to do it right and decades of asking all the thorny legal questions that were likely to arise, none of which has been resolved by now, by the way, we just found more questions, but then that automatic you do have to send notice to the correct parties, follow the formalities and do it within the statutory time frame.
If I were a young person getting started and releasing thing, whatever, is there anything that I should keep in mind in my dealings with people to help me protect things going forward? Or is this just something baked in? Oh, that’s such a good question, because this is something we’re advising now.
And largely based on, as I said, unanswered questions, but we know this question. Record companies have been fighting recording artists for years over this, because there are exceptions to the termination, right? One of them is the work for hire exception.
So they claim that recording artists are work for hire based on what’s in the contract. That gets into a whole big thing. But to be more precise on your question, where artists have created their own company and then loan the services to the company, we call that a loan out company or a loan out corporation, there exists the possibility that you’ve given up your right to terminate later.
So for instance, you sign a deal with a recording company, and you and your individual capacity or the individuals of the band don’t assign the rights to the recording company, but you start your own corporation or LLC through that LLC or corporation, you assign it to the company as a loan out of your services, you might have sacrificed your opportunity to exercise the termination, right? We don’t know the answer, we will know the answer sometime between now and 35 years from now. Which is why if you plan to do it that way, either reconsider doing it that way or structure your contract with your company in such a way that it exists as a separate entity that you’re assigning the rights to, as you would anybody else.
It’s a dangerous thing to do on one’s own or with somebody who doesn’t understand the later implications. It really illustrates to me, there’s a reason that a lawyer is called an advocate, right? Yes.
It really makes sense to have somebody helping you with this because you probably didn’t go to a lot when you went to law school. I didn’t go to law school. And this is off topic, but I used to do a lot for video games and TV commercials, things like that.
I’m assuming that work for hire, that my contract being assigned as a work for hire puts it in a different bucket. There’s an exception for work for hire and whether or not something is a work for hire depends on part of whether or not it was created before and after 1978. I’m going to try not to get too much in the weeds on this, but if it’s a 1978 or up, there are two ways a work can be a work for hire.
One is it created by an employee within the scope of employment and the other is a specially commissioned work. And specially commissioned work is only a work for hire if there is a signed writing that is a work for hire. This leads to one of the hardest fought battles in the recording industry over termination rights because nearly every recording contract is going to have that work for hire language in there.
It’s always there. They’re just going to take a swing. But the statute sets forth categories that can be specially commissioned works and sound recording, which is a distinct copyright, is not one of those enumerated works in the statute.
So many people, including I, take the position that sound recordings ordinarily are not eligible as works for hire. This is being battled right now. There was a purported class action lawsuit, which to one started by Buster Poindexter or David Johansson, really, and another by John Waite, which is now it’s members of Dream Syndicate and the Dickies.
They are currently battling this out and what they want to be a class action lawsuit against their record companies. We’ve known about this issue, we’ve known about this issue for literally more than 25 years. And we still, I wrote about it in the Journal of the Copyright Society of the USA.
This is dated 2005. You see everybody, I’m not sure. Before the right was even effective.
And we still don’t have an answer, but we know that the major labels don’t want to lose this issue because if they lose one, they can lose them all. It strikes me as that legal premise. They’re just going to try for every single thing they can.
It’s like, if I’m being sued because I scratched your car, I say, I didn’t scratch your car. And also when I scratched your car, it wasn’t my fault. Like it just, yes.
So when you see these fights and we’ve seen a number of them, a company that’s fighting termination, yeah, it’s going to try every legal issue that it possibly can. And not only have we not resolved any of those legal issues, we discovered new ones. I think some people are asking questions in the comments.
If you ask a question, didn’t get answered, ask it again, because we’re happy. Yeah, I saw a South African producer I really like in the, in the join. Hello.
Is it Spalak Matambo? I’m not sure if I pronounced your name right. These will only apply in the US, the termination right.
No other country has a similar. So if you made a worldwide deal and you terminate, it’s only going to apply to your US rights. And it’s a little more complicated if you signed the contract outside the US, whether or not you can terminate it in the US.
If you’re on my TikTok, I talked about these kinds of issues. Someone asked about deeper dives. I can give you a few sources, but I do talk about it.
Let me say this so you don’t have to, by the way. If you’re not following Mark’s TikTok or his Instagram, you absolutely should. It’s chock full of this kind of stuff.
And we’re teaming up on this because I think we’re of like minds. In fact, this termination issue, you’ve got termination Tuesday over there. This is something that, that you can learn a lot from him.
And you should just cause he’s in my orbit doesn’t mean you shouldn’t be in his orbit. Go ahead. I was going through the question.
That was one question. Where can we find a deeper dive for social media? Also my Twitter, I’ve written a few articles about it that, that you can find.
I got to repost some on the blog. You can go. Authors Alliance is an organization that is very helpful with that.
And they have some handy guides on that. Also, so does the copyright office. But I do think it’s a mess.
Anybody who’s been dealing with this for a long time is disappointed on how it’s playing. So we didn’t really get to the topic of getting your copyright back. So assuming that I’m young and I’m doing this now, I got to wait until I’m an older guy to do it.
But if I did this a while ago, this is something that is coming to or coming within my reach. How do I get my copyright back? What does that mean?
To exercise this determination, and I’m specifically talking about section 203 of the Copyright Act, it requires first of all, you have to identify who the copyright owner is because you are serving in on what copyright law calls the success or interest. Essentially the current copyright holder, right? Because you got to terminate every assignment along the chain.
You got to serve notice on them and notice on them at least two years before the effective date, which means you have to go to the statue and calculate the effective date and calculate when you served a notice and calculate when the assignment was based on the original contract, calculate to find the release date. I double checked this like a million times. In fact, I read the statute like every day, but it does require notice on those parties.
It has to be at least two years in advance. If you had co-authors, you may need their cooperation, especially if you assign the rights together in that same contract. Once you serve the notice and you give them the effective date, then it happens as of the effective date.
They don’t have to do anything in theory. And you also have to, before that time, record it with the Copyright Office. This to me sounds hard and it sounds like the sort of thing that you would want some help with.
Mark, if I do it, you’re my guy to help me. I wouldn’t want to try and do this myself. Well, yeah, go through my tit-tat.
West termination Tuesday was about the things you need to prepare. There’s always going to be more to say about this topic. It’s just full of asterisks.
You might be wondering, well, what if the authors have passed away? The answer is it passes on to statutory errors, for instance. So they’re in the statute.
You can assign a copyright, but you can’t assign a termination right. You either have it as the author or if you’re gone, it will pass on to your errors in the statute. Right now, there’s just a lot of litigation.
In the case of a co-authorship, that seems like it would be… If you assign it in the same instrument, that’s the language in the statute. You could say multiple authors in the same contract, that in order to terminate, you need a majority of those authors to do it.
If there’s only two, you need both. Mark, I’m going to let you go only because you strike me a little bit like a golden retriever in that, like I told you, I’d keep you for 15 minutes. And if I keep throwing the…
I don’t want to, but we have to stop this. I hope you will come back and do this another time. It’s always a pleasure to talk to you.
Mark Jaffee, everybody. This was fun. I’m Mark Jaffee, Five Bridges Law, RIP, Chiragoy the Dove, and his memory before blessing.
And we’ll talk again Thanks everyone. Bye, everyone.
