More on US Termination, a How to

I don’t have any moving stories of the importance of the Village People in my life like Nicholas Smith’s wonderful post on the US termination right at IP Whiteboard.  - Although I will admit that The Village People’s Greatest Hits was the first cd I purchased with my own money; – But, I would like to draw your attention to a very detailed how-to-guide on termination rights by Digital Music News: The Comprehensive Guide to Reclaiming Your Old Masters…

Note: If you’d like some background on the US termination right before getting into the guide, see Ben’s earlier post, Terminal Blues for Record Labels?

The Guide gives a bit of background on the termination law, explains the affect terminations may have on record labels and outlines the steps artists wishing to terminate their contracts should follow. 

It also, and perhaps most interesting to the copyright gurus reading this blog, explores in detail the ‘work for hire’ issue that will often be the deciding factor in whether a termination is successful or not.  As the Guide points out, if a work was created as a work for hire, the person who created the work cannot reclaim the rights.  This is because although they created the work, they are not the legal author.  Authorship in works for hire vests with the hiring entity. 

Of course, most record label agreements would state that the works at issue are works for hire.  The golden nugget lies in the fact that saying something doesn’t make it so.  (A common theme in copyright lately.)  The Guide gives a great analysis of the work for hire doctrine, complete with Congressional drama and RIAA trickery.  Check it out.

Sen and the Art of Licence Termination

Here's something interesting from New York lawyer Shourin Sen: US copyright legislation gives authors and enumerated family members the power to terminate certain grants upon the completion of paperwork. These termination provisions, 17 U.S.C. §§ 203, 304(c) and 304(d), apply to, among other things, both exclusive and non-exclusive licences, assignments, mortgages and conveyances -- but not to terminate a "work made for hire" or grants made by will.

Congress enacted the termination provisions in order to give an “author a second chance to control and benefit from his work" and to "secure to the author's family the opportunity to exploit the work if the author died", according to Stewart v Abend, 495 U.S. 207, 218 (1990).

Shourin has launched an online calculator and website to enable readers to evaluate the rights and risks associated with the termination of copyright grants. While the termination provisions are regrettably intricate, this online calculator seeks to people through the basic issues and maths necessary to figure out when an author may terminate a grant. It does not cover all of the contingencies needed to make an evaluation, but seeks at least to provide a useful starting-point.

I thank Shourin for drawing this to my attention and would be interested to hear from any readers who put the calculator through its paces -- or, better still, who would like to review it.