Page 25 - Delaware Lawyer - Summer 2020

The law can be used to recapture U.S. rights regardless of where the author was domiciled
or where the transfer of rights took place.
It would not surprise me if well over 90% of authors (not just of songs but other literary properties as well) and their heirs are either unaware of this right or simply do not accept the fact that the right exists even when so ad- vised by their representatives. The law can be used to recapture U.S. rights wherever the author may have been, or is still, domiciled and/or wherever the transfer of rights took place. It should be noted that one lower court in the UK recently raised the question of whether an attempt to exercise the U.S. termination right in a contract entered into in England by English parties under English law could be deemed a breach of contract. In fact, the court held that it was. However, the case was then settled, so no definitive ruling has yet occurred on the subject in the UK or any other country.
For obvious reasons, lawyers who specialize in areas such as trust and estates, general practice lawyers who draft wills in the ordinary course of their representing individuals, and fi- nancial advisors of every stripe, should be aware of the existence and the pa- rameters of the termination right. Whether the official Notice of Termi- nation is served during the author’s lifetime, or afterwards, this new asset,
once recaptured, can be an extraordi- nary windfall for the author, and the author’s spouse and children.
Given the immutable windows of opportunity for termination — for each separate work, by the way, taken individually — these rights, if ne- glected, will expire faster than they matured. Failure to act in timely fash- ion will result in the retention by the current copyright holder for the re- maining term of copyright protection throughout the United States, of all of the rights it acquired. If the copy- right holder owns the copyrights for the world, such failure will result in the U.S. portion being retained as if nothing had happened to threaten the worldwide holdings.
Expiration of Copyright
As indicated earlier, the term of copyright in the United States for works written/copyrighted before 1978 (for the most part) is 95 years from the date of copyright. Presuming that a work was written in 1925 and formalities re- quired at that time and even later were followed, the copyright to that work, in the United States at least, is still protected by all aspects of the Copy- right Act until the end of 2020, after which it will fall into the public do- main. Works written in 1926 will fall
into the public domain a year later, etc. Nothing can be done to reinstate these copyrights.
The term of copyright for works cre- ated after 1977 will survive the death of the author plus 70 years. Thus, a work created in 2020 will fall into the pub- lic domain in 2090 if the author dies in 2020. A work created in 1980 by an author who also dies this year will also fall into the public domain in 2090. A work created in 1980 whose author died in 1990 will fall into the public domain in 2060. Yet a work created in 1990 whose author also died in 1990 will also fall into the public domain in 2060, and so forth. Copyright protec- tion for recaptured rights will also last until these respective end dates of U.S. copyright protection.
Because the recaptured rights only apply to the territory of the United States, the original transferees of the copyrights who acquired worldwide rights initially or at some later point, will still have a significant role to play in the exploitation (nurturing) of the copyrights at issue for the territory of the rest of the world. The author, or the author’s heirs, will have to deal with each other should an opportunity for a worldwide license arise (e.g. for a motion picture use of a song). [The worldwide owner’s rights outside of
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