Vesting of Renewal Term Rights in Pre-1978 Works
Ownership of Renewal Term Rights When Author Survives the Renewal TermIf an author lives into the renewal term of copyright, the ownership of the renewal term rights rests with the author unless the author has entered into an agreement transferring renewal term rights. If the author conveyed rights to a music publisher for the full term of copyright, including renewals and extensions thereof, the music publisher will continue to own the work in the renewal term subject to the applicable statutory termination provisions. If the author granted rights only for the initial term of copyright, rights will revert to the author on the commencement of the renewal term of copyright.
Effect of Author’s Death During the Initial Term of CopyrightIf an author dies before the end of the 28th year of copyright, the renewal term rights automatically vest in the author’s heirs (which may include the widow/widower or children of the author, the author’s executor(s), or the author’s next of kin) regardless of whether the author assigned the renewal term of copyright to a third-party prior to his or her death.1 A limited exception to this rule occurs if the author properly renewed the copyright during the 28th year of copyright, assigned the renewal term rights in the composition during that year, and subsequently died. In this limited circumstance, renewal term rights will remain with the assignee.
In general, when an author dies during the initial term of copyright, an assignee of the author such as a music publishing company may not rightfully claim the copyright during the renewal term unless (i) the author’s heirs were party to an initial grant of renewal term rights, or (ii) the author’s heirs subsequently assign the copyright for the renewal term to the music publisher.2 If an heir fails to advise the music publisher that the heirs have secured the renewal copyright and are reclaiming renewal term rights, the publisher may continue to collect on copyrights in the renewal term.
Even when an author’s heirs were signatory to a grant of renewal term rights, where an author leaves multiple heirs, it is important to ascertain if all of the heirs were actually party to the grant. For example, if an author’s wife and two children signed a renewal term contract, but the author’s youngest daughter was not yet born, the youngest child will be able to claim her share of the renewal term rights even though the grant will subsist with respect to her mother and siblings.
While no explicit statutory notice requirements or procedures are prescribed in order to claim a renewal interest, the failure to make a timely claim may limit retroactive recovery. Accordingly, heirs should “claim” their rights in the renewal copyright as soon as possible by sending letters of notification to the music publisher as well as the applicable performing and mechanical rights organizations. It is important to note that the vesting of renewal term rights in an author’s statutory heirs applies only to such rights in the United States. While the statute does not limit the territorial scope of the reversion of rights, custom in the industry limits the scope of the reversion because the notion of a renewal term of copyright is unique to the United States.
The foregoing rules regarding the vesting of renewal term rights in the author’s statutory heirs apply with respect to all exclusive and non-exclusive grants of copyright other than works made for hire and grants made by will.
- Section 304(a)(1)(C) of the U.S. Copyright Act designates the persons entitled to renew a copyright registration in the event that the author has died prior to the commencement of the renewal term: “(ii) the widow, widower, or children of the author, if the author is not living, (iii) the author’s executors, if such author, widow, widower, or children are not living, or (iv) the author’s next of kin, in the absence of a will of the author.” 17 U.S.C. § 304(a)(1)(C). ↩
- See Stewart v. Abend, 495 U.S. 207, 219-20 (1990). ↩