Page 28 - Delaware Lawyer - Summer 2020

FEATURE
mance. But what about the producer? The engineer? The mixer? The arrang- er? The engineer who handles the mas- tering? What about the accompanying musicians and back-up singers? The drum programmer? And what about the record label itself, whose contract with its artist asserts the “fact” that it is the author because all of these pro- fessionals are deemed (by them) as employees-for-hire even though the re- cord label does not treat any of them in any other respect as employees?
Other examples of works which a copyright owner may claim to be works made for hire are audio-books, podcasts, elements harvested from Zoomathons, other works of an audio- visual character, ghost-written books or books written “with...”, etc.
For works made for hire, the or- dinary term of copyright protection constituting the life of the author plus 70 years, of course, cannot apply. For these, the term of copyright is 95 years from the date of initial publication, or 120 years after the creation, whichever
The Copyright Act provides a potential windfall for authors and their heirs
by giving them the right to recapture U.S. copyrights.
occurs sooner. To repeat, the reason the distinction is important is that if a work is “made for hire,” the transfer of rights cannot be terminated. The “em- ployer” is the author.
In conclusion, the Copyright Act provides a potential windfall for au- thors and their heirs by giving them the right to recapture the United States copyrights and all attendant rights with respect to authors’ copyrighted cre-
ations which were previously assigned to another party. Specifically, the re- capturing party will secure, for the first time, the right to administer the works themselves, to collect U.S. earnings de- rived from their exploitation, to license all or part of rights under copyright (which are manifold), to license or to sell them for money in hand and/or, if sold back to the original copyright owner, to negotiate to improve royalty and accounting terms for the so-called author’s share, an industry concept where half of every dollar earned by a copyright belongs to the author and the other half to the copyright owner. The recapturing party can also sell both the copyright and the author’s share, doubling the value of any such transaction. Essential to accomplishing any of these options is that the mecha- nisms and procedures affecting termi- nation of copyrights must be carefully followed lest the right is lost.
NOTES
1. 17 U.S.C. §§ 101-810.
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