Very few people are aware that we are entering a unique period of time for musicians, artists, writers and their heirs. In 1976, the U.S. Copyright Act was amended to allow the creator of a copyright to reclaim the rights to a work that was assigned. Congress recognized that many new musicians, authors and artists were being taken advantage of by entertainment companies because they had so little leverage. As a result, such individuals often assigned their rights for very little money.
The purpose of the Act was to allow individuals who had created the copyrightable material to terminate a bad assignment so that they could better profit from their work.
The Copyright Act
The Copyright Act allows the original copyright owner, the person who created the copyrighted work, to reclaim the work typically 35 years after the assignment.
However, notice of such termination can ONLY be done during a five year period which starts 30 years after the execution of a grant that does not include the right of publication. For grants that do include the right of publication, notice of such termination must be made no earlier than 30 years after the execution of such grant or 25 years after publication under the grant, whichever comes first.
The timing of when one must reclaim can be quite confusing, but it is also critical. Accordingly, it is best to consult an attorney immediately if you are the original owner of a copyright or an heir to the original owner of a copyright.
While the original copyright owner can terminate an assignment for any reason, it might be worthwhile to reclaim the copyright if the owner:
- had assigned the copyright for an unreasonably low amount;
- does not like the way the assignee has been utilizing the copyright; or
- has a bad relationship with the assignee.
The right to reclaim the copyright
Importantly, the right to reclaim the copyright doesn’t just apply to the individual who created the copyright, but also to the heirs and the estate of such individual.
The corporations that own such assignments are not obligated to tell the creator of a copyright that he has the right to terminate the original assignment, so it is up to you to look out for your own interests.
However, if you are an executor of an estate, it is your duty to marshal all the assets of the estate, including any copyrights that might be outstanding.
The duty to marshal the assets of the estate
The duty to marshal the assets of the estate basically means the executor must do a cost benefit analysis to determine whether to terminate any outstanding copyright assignments or let them be. Additionally, on the planning side, if you are the original owner of a copyright, you may wish to create a position of a literary executor under your Will to manage all your copyrights.
Because managing a person’s copyrights can be quite complex, the duties will require a knowledge and expertise that many traditional executors may not have.
If you are the heir to (or an executor of) an estate of someone who has produced any copyrighted works, please feel free to contact us so that we can help you determine what rights you may have.
Please note that the ability to reclaim a copyright does not apply to works for hire.
