Recapturing Copyrights: A Second Chance at Royalties

Recapturing Copyrights: A Second Chance at Royalties

by Michelle Kaminsky, Esq., September 2012

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There's always an encore when it comes to music. Several of the biggest musical acts from the ‘70s might be getting another one, 35 years later. And they're not alone, as the first wave of the Copyright Act of 1976 comes into focus early next year, musicians and artists alike might get a second chance at owning their original works of art—all over again.

The Value of a Copyright

Once an author or artist grants the copyright of a work to someone else, ownership remains with the recipient for the life of the copyright, correct? Not exactly. Taking into consideration that young, struggling artists often enter into contracts that take advantage of them and their desire to reach a wider audience, the Copyright Act of 1976 specifically allows for the recapturing of copyrights under certain circumstances. Specifically, section 203 of the Act provides that grants, assignments and licenses can by terminated within a five-year window after the 35-year moratorium.

As long as a work was not made “for hire,” the right of termination stays with the original author or artist even if the copyright had been granted to another entity in perpetuity. In fact, even when a contract explicitly states that the original author or artist has lost a copyright for good, the Copyright Act can make that provision void. As a federal law, the Copyright Act trumps all state laws on the subject as well.

Moreover, in some situations, even the statutory heirs of the original copyright owner may move to recapture a copyright if the original owner had assigned the copyright interests to his or her heirs.

Successful Recapture in the Movie Industry

This is precisely the procedure that was followed by the family of Jerry Siegel, co-creator of Superman in recapturing copyrights to certain comics and depictions featuring the legendary superhero. In a separate proceeding, the estate of Siegel's co-creator, Joel Shuster, also successfully recaptured copyrights, which will take effect in 2013. According to, this means that “[a]t that point, the Siegels and Shusters will own the entire copyright to Action Comics No. 1, [which] will give them the chance to set up Superman pics, TV shows and other projects at another studio.”

Terminating Music Copyrights

Besides characters in comic books, music is now entering the realm of copyright recapture. Indeed, JDSupra notes that Bob Dylan, Tom Waits and Eagles are just some of the artists who have already filed notices of termination. And there's no telling just how many other artists will take advantage of the Copyright Act's recapturing provisions once they enter the termination window. Remember, because heirs may also be able entitled to recapture copyrights, even artists who have passed away may see their copyrights returned to them posthumously.

Recapture of copyrights could have a large impact on the music industry. Since most labels only promote an album for 12-18 months after release and don't receive money for radio airplay, they rely on future sales. If a song is picked up for a TV show, movie soundtrack, video game or even a commercial, the financial reward can be enormous. In an era of reunion tours and comebacks, the fight may be on.

How Recapturing a Copyright Works

It's a bit of a complicated process, particularly regarding the timing of giving proper notice. Essentially, authors and artists who granted copyrights and licenses on or after January 1, 1978 can terminate such grants after 35 years. And because of that magical “35-year” mark, legal experts are predicting a wave of copyright termination actions beginning in 2013, 35 years from the January 1, 1978 date provided for in the Copyright Act.

According to applicable law, the author seeking to recapture copyright has to have sent notice to the copyright holder by January 1, 2011 in order to take advantage of the copyright recapture provisions, so if those notices have been sent, the artist is free to move forward on his or her copyright recapture claim.

One thing is certain, no one in intellectual property circles would be surprised if copyright recapture litigation becomes the norm within the next few years. Some of those records from that long-gone era still might have a few spins left in them. Oh yes—the time is ripe for recapture.