Dangers of "The Gap"

Publishers Weekly had an article yesterday titled "Authors Guild Says Watch the Gap."

The gap the story refers to is the one that exists in the termination of rights clauses in the Copyright Act of 1976:

The Authors Guild along with the Songwriters Guild of America filed a joint statement Friday with the U.S. Copyright Office asking that Congress act to eliminate what the two groups see as a potential “gap” in termination rights granted under the Copyright Act.

According to the filing, if the gap is not addressed as many as 100,000 creators may not be able to exercise termination rights they thought had effectively been granted to them under the law in 1976.

According to the Music Row blog for February 26, the gap was discovered about a year ago by an intellectual property and copyright law attorney named Casey Del Casino:

The gap deals with Section 203 and Section 304 of the Copyright Act and could affect many songwriters and publishers in Nashville, said Del Casino, as he released his findings in a recent presentation to the Nashville Bar Association Intellectual Property Section ... at the offices of the Nashville Songwriters Association International (NSAI).

Section 203 covers works where rights were transferred after 1/1/78:

§ 203. Termination of transfers and licenses granted by the author

(a) Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions:

The section which caught Mr. Del Casino's attention was this one:

(3) Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.

Section 304 covers works where rights were transferred prior to 1/1/78 and says:

(c) Termination of Transfers and Licenses Covering Extended Renewal Term. — In the case of any copyright subsisting in either its first or renewal term on January 1, 1978 ... the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it, executed before January 1, 1978, by any of the persons designated by subsection (a)(1)(C) of this section, otherwise than by will, is subject to termination under the following conditions:

Compare the earlier phrasing in Section 203 to this wording in Section 304:

(3) Termination of the grant may be effected at any time during a period of five years beginning at the end of fifty-six years from the date copyright was originally secured, or beginning on January 1, 1978, whichever is later.

You can see the problem. BusinessWire summed it up this way:

... there may be an inadvertent gap for works governed by pre-1978 contracts that were not published or registered for copyright until 1978 or later.

The comments submitted by the two creative guilds say that because of the gap:

... the possibility exists that the right to terminate transfers of some works will never become available ...

The guilds urge Congress to correct the problem via legislation.

There are many well-known works (both music and books) where the author signed a contract granting the copyright before 1/1/78 and then the work was published or registered for copyright after 1/1/78. According to the comments submitted by the two creative guilds:

Charlie Daniels 1979 signature song, "The Devil Went Down to Georgia," could be subject to agreements signed before 1978--making it unclear when or if Daniels is legally entitled to take back ownership.

Likewise, since most book contracts are signed more than a year before publication, the comments indicate that nearly all the books published in 1978 and many, many books published in 1979 and 1980 may be impacted by the gap. Well-known works include The World According to Garp and The Right Stuff.

You can read the Music Row blog here and the BusinessWire blog here.

You can read Section 203 of Chapter Two of the Copyright Act here. You can also read Section 304 of Chapter Three here.

You can read the comments by the Authors Guild and the Songwriters Guild here.