Artists regain copyrights — decades later
A small copyright law went into effect years ago with the purpose of helping artists regain their copyright after 35 years.
Known as the termination rights provision of the Copyright Act of 1976, it was and is intended to protect novice artists who may not make the best deals for themselves in the early years of their careers when negotiating with established record labels, publishers, etc.
The idea is to give the artists a way, down the road, to regain the potentially lucrative copyright that they granted to another person or organization. The provision applies to work created on or after Jan. 1, 1978.
Last year marked 35 years since the provision was enacted — and, therefore, the first time artists and other independent contractors could start to take advantage of the law.
Made for hire
Sheila Eddy, a Grand Rapids-based attorney at Smith Haughey Rice & Roegge, pointed out that the higher profile case of Victor Willis, former member of the Village People, might be an indicator of future court battles to come.
Eddy explained that in 2013, Willis won back his copyright interests for several songs he wrote while with the Village People.
The record company was not able to prove that the works were “made for hire” or created through an employer-employee relationship.
Eddy said when you have an employer and employee relationship, the moment the employee is hired and they create copyrightable works of authorship for the employer, everything they create "automatically belongs to the employer."
“However, when you are talking about the issue of independent contractors and the people who hire them by contract, there has to be specific provisions if the person hiring by contract wants to retain any of the copyright interest that belongs in the work created by the independent contractor.”
If a work is made for hire, termination rights don’t apply. However, it’s not always clear-cut if the work was part of a made-for-hire contract or if it was created by the artist and then assigned.
An assigned work means that an independent contractor agrees to grant the copyright to another party. In the case of an assigned work, an artist can later apply their termination rights to regain the copyright for the work.
Today, many companies are using independent contractors of all types to do work for them, including in the technology field, where software is often governed by copyright law rather than patent law.
“Entrepreneurs and businesses that want to engage in independent contractor relationships really should continue to do made-for-hire agreements rather than assignment agreements or licensing agreements if they can,” Eddy said.
At the same time, Eddy noted that in the case of the independent contractor, if they want to be able to apply the termination rights provision after the 35-year period, that person should try to negotiate an assignment agreement instead, which grants the copyright to the other party.
“Assign the photos, songs, etc., but then 35 years later they can terminate the interest and have the copyright back,” Eddy said.
Eddy said the decision in the Willis case was made by a lower court, so it doesn’t have widespread impact, but it still could signal things to come.
“There’s hardly any case law on this specific provision of the Copyright Act, because 35 years just happened,” Eddy added.