The statutory termination provisions enable an author or the heirs of a deceased author to terminate perpetual or “life of copyright” grants under copyright. However, in certain cases it may not be necessary to invoke the statutory termination provisions if a contract itself provides for the expiration or termination of the grant. Some agreements provide for early contractual termination in the event that certain events occur (such as breach by, or bankruptcy of, the grantee) or that certain events fail to occur (such as the failure to meet a minimum guaranteed royalty). Other grants are in the form of option agreements under which rights terminate in the event that an option is not exercised. It was not uncommon prior to 1978 for a grant to be limited on its face to the initial 28-year term of copyright, or for a grant to specify that it was to persist for a limited term of years. It is established case law in the United States that a pre-1978 grant will persist in the United States for the initial term of copyright only unless the grant specifically includes a grant of the renewal term of copyright.1 Note, however, that the general understanding is that the grant will continue to control outside the United States in these instances unless specific provisions are included in the contract that provide for a limited term outside the United States.
During the mid-twentieth century, a series of original and renewal songwriter form agreements were published by the Songwriter’s Protection Agency, successor in interest to AGAC and predecessor in interest to the Songwriter’s Guild of America. It is worth noting several of the most commonly used of these forms, which contained specific provisions relating to the term of the contract. While the contract must be reviewed in each instance to determine if the parties amended or modified the standard terms, a basic familiarity with these provisions will alert you to a possibility that a grant will terminate at least in some portion of the territory by virtue of the standard language of the agreement.2
The 1939 Uniform Popular Songwriters Contract
The 1939 Uniform Popular Songwriter Contract (the “1939 UPSC”) provides for the grant of rights in a musical composition and the right to secure copyright in the composition throughout the world, including “the right to have and to hold the said copyright and all rights of whatsoever nature thereunder existing.” Since the 1939 UPSC does not specifically grant rights for the renewal and/or extended term of copyright, the form is generally understood to convey rights in the United States for the initial 28-year term of copyright only. With respect to the rest of the territory (the world excluding the United States) the grant is understood to persist for the life of copyright in the song in each country of the territory.
The 1947 Revised Uniform Popular Songwriters Contract
The 1947 Revised Uniform Popular Songwriters Contract (the “1947 UPSC”) provides for the worldwide grant of copyright in the subject compositions. The agreement provides that rights will revert to the author in the United States and Canada at the end of the initial term of copyright, or 28 years from the date of publication in the United States, whichever is shorter. The 1947 UPSC does not provide for automatic termination and reversion of rights outside the United States and Canada but does provide in Paragraph 8 that if the author intends to offer for sale the rights in the composition outside the United States and Canada, he/she must give the publisher 6 months’ prior written notice of such intention. This notice is known in the industry as the “Paragraph 8 Notice.” The 1947 UPSC does not specify when the Paragraph 8 Notice may be served. While the position of some music publishers is that the notice must be served 6 months prior to the expiration of the initial term of copyright, this argument is not supported by the language of the contract. The better interpretation is that the Paragraph 8 Notice may be given at any time (after the initial term of copyright) that the author or his/her heirs decide to offer the rights in the song for sale outside the United States and Canada.
The 1950 Uniform Popular Songwriters Renewal Contract
The 1950 Uniform Popular Songwriters Renewal Contract (the “1950 UPSRC”) provides for the grant of rights for a period equal to the shorter of (i) the second or renewal period of the United States copyright, or (ii) 28 years after the expiration of the first original term of the United States copyright. The 1950 UPSRC provides, further, that on the expiration of the 28-year term the rights to the composition will revert to the author throughout the world, unless foreign rights were granted to a foreign publisher before 1947. The effect of a grant of renewal rights utilizing the 1950 UPSRC is that even if the original songwriter agreement was construed to convey rights outside the United States for the life of copyright in the composition, the grant may only persist until the date 28 years after the original term of United States copyright.
- See e.g., Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373, 375 (1960); Epoch Producing Corporation v. Killiam Shows, Inc., 522 F.2d 737, 747 (2d Cir. 1975), cert. denied, 424 U.S. 955 (1976); G. Ricordi & Co. v. Paramount Pictures, Inc., 189 F.2d 469, 471 (2d Cir. 1951), cert. denied, 342 U.S. 849 (1951); White-Smith Music Pub. Co. v. Goff, 187 F. 247, 253 (1st Cir. 1911). ↩
- It is important to review each individual agreement in the context of the series of transactions that may occur during the life of a work. For example, a work that reverts to the author in the United States by reason of a contract that terminates at the end of the initial term of copyright may be the subject of a renewal agreement. ↩