The "Fantastic Four" of Copyright Recapture

The “Fantastic Four”
of Copyright Recapture:
Registration, Grant, Notice, and Recapture
www.TheKellerLawFirm.com
Presented By:
Kelley Clements Keller, Esq.

The “Fantastic Four”
of Copyright Recapture
• (1) Registration of Copyright
• (2) Grant of Rights to Copyrighted Work
• (3) Notice of Termination
• (4) Recapture of Rights to Copyrighted Work
* Images may be subject to copyright by a third party.
®

Let’s Start at the Beginning
• What is a Copyright?
• “Copyright protection subsists in original
works of authorship fixed in any tangible
medium”
• Rights Arise Under Common Law
• Rights May be Broadened through Federal
Registration (Article 1, Sec. 8, Cl. 8, US Const.)
You can’t own an idea, just the tangible expression of it.

Exclusive Rights of a
Federal Copyright Registration
• Reproduce the work in copies
• Prepare derivative works based upon the
work
• Distribute copies of the work to public
• Perform the work publicly
• Display the work publicly

Legal Remedies Accompanying
Common Law Copyrights
• Protection is limited to the geographic area
in which the copyrighted material is published
and used
• No automatic federal jurisdiction

• Statutory Remedies
• Actual Damages
• Statutory Damages
• Injunctive Relief
• Impoundment or Destruction of
Infringing Works
• Cost of Suit and/or Attorneys’ Fees
Legal Remedies Accompanying
Federal Copyright Registrations

• (1) REGISTRATION:
• Artists and Authors must first register their
eligible works for copyright protection
Registration

• What are Eligible Works?
• Literary works
• Musical works
• Dramatic works
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works
• Motion pictures, other audiovisual works and
sound recordings
Registration

Grant
• (2) GRANT:
• Once a copyright registration is received, the Artist
and Author may grant his or her rights to a
Performing Rights Organization (PRO) or
Publisher
• These PROs and Publishers collect fees from
businesses that purchase/use the works
• The fees collected are paid as royalties to the
Artists and Authors

Notice
• (3) NOTICE:
• According to the Copyright Act of 1976, an Artist or
Author can terminate his or her grant after 35 years
with proper notice to the grantee
• Given the life of a copyright, it can be transferred
and recaptured multiple times

Recapture
• (4) RECAPTURE:
• By terminating the grant, the Artist or Author will
“recapture”, or reclaim, the rights to his or her
copyrighted works

Exercising the Termination Right
• How to TERMINATE a Grant:
• Serve a Notice of Termination not less than 2 years or
more than 10 years before the specified date of
termination
• Notice must fall within the 5-year timeframe following
the expiration of the copyright grant
• Record the Notice with the Copyright Office
• The responsibility of terminating a grant lies solely in the
hands of the Artist or Author

• What is INCLUDED in the Right:
• Any grant or transfer of a copyrighted work
signed by the Artist or Author on or after January
1, 1978 is subject to termination

• What is EXCLUDED from the Right:
• “Works Made for Hire”
• “Derivative Works” and “Compilations”
• Grants Made by Will
• Grants Made by Heirs of Intestate Artists or
Authors

Ramifications of Recapture: Songs
• Can Rights to Sound Recordings (Songs) be
Recaptured?
• YES, unless it is specified in a contract that the
songs are “works made for hire”
• However, music artists generally foot the bill to
produce their music and are usually independent
contractors

• Billy Joel, Bruce Springsteen, and Bob Dylan
are but a few of 1978’s famous music artists
that have the option of recapturing the rights
to their songs

• Tom Petty, The Eagles, Village People, Kenny
Rogers, and Loretta Lynn also fall into this
category

• Can groups like Led Zeppelin, The Rolling
Stones, and Pink Floyd exercise the
termination right for American recordings?
• Where was the copyright registered?
• How were the rights transferred?

• Can Rights to Motion Pictures be
Recaptured?
• NO, in the majority of cases
• Motion pictures are generally “works made for
hire,” meaning everyone involved in the
production is an employee or independent
contractor with an appropriate contract in place
• Motion pictures are often “derivative works”
based on screen plays as well
Ramifications of Recapture: Movies

• Can Rights to Literary Works be
Recaptured?
• YES, unless they fall into the “works made for
hire,” “derivative works,” or “compilation”
exceptions
Ramifications of Recapture: Books

• Authors of popular books from as early as
1978 may recapture their rights upon
expiration of their grants
• The Stand by Stephen King
• The World According to Garp
by John Irving

• These children’s books also fall into this
category
• A Pocket for Corduroy by Don Freeman
• Cloudy with a Chance of Meatballs by Judi Barrett

Ramifications of Recapture: Comics
• Can rights to fictional characters – think
comics - be Recaptured?
• VERY DEBATABLE - Do they fall into the
“derivative works” or even “works made
for hire” exceptions?
• Fictional characters have the Propensity to …
• Adapt, Transform, and Develop

• Consider the following characters potentially
eligible for recapture
• Superman®
• Wonder Woman®

• Amazing Spider-Man®
• Fantastic Four®
• X-Men®
• Iron Man®
• The Incredible Hulk®
• Captain America®

Looking Ahead
• Areas with Minimal Litigation
• Literary Works (Books)
• There is generally not much argument as to where
the work originated from, e.g. the Author wrote
the book

• Areas with Extensive Litigation
• Sound Recordings (Songs)
• “The four major record companies … have made it
clear that they will not relinquish recordings they
consider their property without a fight.”
(“Record Industry Braces for Artists’ Battle Over Song Rights," New York Times, 15 Aug 2011)
Looking Ahead

• Areas with Extensive Litigation
• Fictional Characters in Comics
• The question of “derivative works” and whether
the grant can be terminated will likely be resolved
through litigation
• Comic characters share few ties to their creative
roots, as compared to more traditional forms of
copyrights
Looking Ahead

Looking Ahead:
The Wild West – Anything Goes
• Another Cause for Litigation
• Inalienable Right of Recapture:
“Termination of the grant may be
affected notwithstanding any
agreement to the contrary…”
• If an agreement includes language that bars the
recapture of rights 35 years after the grant, it may
not be held valid

• “The termination right was expressly
intended to relieve authors of the
consequences of ill-advised and
unremunerative grants that had been made
before the author had a fair opportunity to
appreciate the true value of his or her work
product.” (11 Wis. L. Rev. 67 (2011))
The Unfair Bargaining Position

A Closer Look: Termination Litigation
• Milne v. Slesinger, 430 F.3d 1036 (2005)
• Are there instances when an Author is estopped from
abrogating an “agreement to the contrary”?
• Is this provision “plain on its face”?
• NO, says the Ninth Circuit. According to the
Legislative History, nothing in the Copyright
Acts has altered the power of private parties
to contract
• The spirit of provision is to safeguard Authors
against unremunerative transfers

• Penguin Group v. Steinbeck, 537 F.3d 193 (2008)
• Second Circuit follows Milne
• Neither plain language nor legislative intent
of the Copyright Act precluded Authors and
their statutory successors from losing the
right to terminate by renegotiating it
• If rights-holder uses termination right as a
bargaining power to renegotiate an agreement,
spirit of provision is fulfilled

• Classic Media v. Mewborn,532 F.3d 978 (2008)
• Ninth Circuit distinguishes Milne
• The rights-holder knew he had the right to
vest copyright in himself at the time he revoked
his prior right and leveraged his termination rights
• In Classic Media, the rights-holder had “nothing in hand
with which to bargain” at time of renegotiation since
termination of right had not vested
Lassie did in fact “COME HOME”

Questions to Think About
• Will music become more expensive as a result of
music artists recapturing their rights to copyrighted
works?
• Will Artists renegotiate their royalty rates with
record labels or seek to publish them independently?
• New Talent: Will the labels – major and minor – be
willing to invest at levels similar to the past
knowing that 35 years later it may be a whole new
ball game?

Thank You!
Kelley Clements Keller, Esq.
(717) 386-5035
kkeller@thekellerlawfirm.com
@KelleyKeller
/TheKellerLawFirmLLC
/KelleyKeller

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