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Recapturing US copyright

Exploring an anomaly in US Copyright Low, which empowers songwriters to leave unfair contracts by Catherine Pocock.

Bruce Woolley & The Camera ClubOne afternoon in 1978, around an acoustic piano in East Sheen, songwriters and BASCA members Trevor Horn and Bruce Woolley wrote a new song. BASCA member Geoff Downes later added instrumental melodies and a startling keyboard arrangement to the song. The track went on to become the new wave synth pop classic and MTV favourite, Video Killed The Radio Star. Woolley first recorded the song for his band The Camera Club before Downes and Horn produced their version for the group Buggies, which became the global smash hit. The song reached No.1 in 16 countries, topped the UK charts on 20th October 1979 and, despite only reaching number 40 in the US Billboard Charts, was the video chosen to launch M1V in August 1981. Fast-forward 37 years and you’ll find that the song is still remembered as one of the greatest hits of the 80s. It seems only natural that the man behind this musical wonder is keeping a watchful eye on his copyright – and fighting to keep it in the best possible hands.

US anomaly

Under American copyright law, authors have a statutory right to terminate copyright-related contracts. But this termination right is an anomaly very specific to US copyright law and there are no equivalent ‘recapturing’ rights in the EU or the UK. The important bits are Sections 203, 304(c) and 304(d) of the US Copyright Act. These state that authors are afforded a five-year window within which they can terminate their contracts for perpetual or ‘life of copyright’ grants.contract These provisions were originally prompted by an acknowledgment by the US Congress that authors (including songwriters) frequently enter into inequitable, long-binding deals. The termination provisions give authors the opportunity to ‘recapture’ the rights to their copyright in the United States under a very strict series of conditions and administrative process. It doesn’t just happen, though. The main condition of this process is that notice of termination must be served on the appropriate party within the designated notice period in accordance with the law and regulations. But according to US attorney Lisa Alter (of the New York law firm Alter, Kendrick & Baron, LLP), the termination provisions “are complicated by design – perhaps a result of a strong publisher lobby intent on retaining ownership of music assets.” To make things even more complex, it isn’t the same for every case. Different rules apply depending on which section of the US copyright law the termination falls within. What does this mean for songwriters? In principle, these provisions mean that regardless of the termination clauses within a publishing contract, the statutory rights may allow authors to terminate their contracts – but only if they are able to navigate through a legal maze.

Lisa Alter 001 (2)New opportunities

Luckily for Woolley, Sam Fein, informally known as ‘The Copyright Vigilante’ from the Songwriters’ Guild of America (BASCA’s sister organisation) is well attuned to the US Copyright Act and its many amendments. Following Fein’s advice, Woolley engaged in a strenuous two-year negotiation with his publisher. Ultimately, with the help of music copyright attorney Lisa Alter, Woolley was able to ‘recapture’ the rights to his US catalogue. With the ways of American law being as they are, the ‘recaptured’ rights extend only to the US publishing rights, not worldwide publishing. But this in itself enabled Woolley to negotiate a new deal with the New York-based Round Hill Music, whose vision for the US catalogue better suits Woolley’s professional ambitions. As Lisa Alter notes, ‘The ability to terminate unfavourable contracts and recapture rights in the US offers songwriters an invaluable opportunity to regain control of treasured works. However, the termination rights are time-sensitive and when the window closes, it closes forever. It makes good business (and personal) sense for songwriters to explore the possibility of reclaiming their creations.’

Please visit our Members Area and view the ‘Termination of Transfers under US Copyright Law’ by Lisa Alter of Alter, Kendrick & Baron, LLP, New York, click here.