May 3, 2010. The Authors Guild and The Songwriters Guild of America (SGA) told the U.S. Copyright Office on Friday that there is an urgent need to eliminate a potential “gap” in termination rights granted under the Copyright Act. The joint filing, announced today by Authors Guild executive director Paul Aiken and SGA president Rick Carnes, was in response to a request for comments by the Office on the issue. The “gap,” if not addressed, might prevent as many as 100,000 creators from being able to exercise termination rights they – and Members of Congress – thought had effectively been granted to them under the law.
In establishing termination rights for creators – allowing them to end transfers of their copyrights to publishers after a set number of years – Congress established rules for terminations for both pre- and post-1978 works. However, because of a quirk in the drafting of the law, 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 legislative drafting error dates back to a major revision of copyright law in 1976,” said Aiken. “The potential problem is serious and pressing – the time to file thirty-five year termination notices for post-1978 works commences in 2011 – but it’s a technical problem that can be resolved with a straightforward legislative clarification.” Carnes added, “We simply need to make sure that, as a matter fairness, certain categories of works that may have fallen through the cracks in drafting the 1976 Act are now clearly included in the law.”
There are various scenarios in which confusion may arise under the law as currently written. Songwriters often sign exclusive agreements with music publishers covering the transfer of all songs written prospectively over a period of several years. For example, Charlie Daniels’ classic “The Devil Went Down to Georgia,” released on his band’s 1979 album, almost certainly was subject to a pre-1978 contract and might fall into the statutory “gap.” Moreover, nearly all books published in 1978 and most books published in 1979 were subject to pre-1978 contracts and therefore could fall within the suspected gap as well. John Irving’s “The World According to Garp,” published in 1978, and Beverly Cleary’s “Ramona and Her Mother” and Tom Wolfe’s “The Right Stuff,” both published in 1979, are all likely to be in this category.
“Authors, particularly those early in their careers, frequently have little or no bargaining power with publishers,” said Aiken. “The termination right effectively recognizes that imbalance, giving authors the power to renegotiate their contracts in the rare cases where a book has a commercial life far longer than expected.”
The legislative record of the 1976 Copyright Act is clear in expressing Congress’ intent that termination rights be granted to all authors. According to the House and Senate Reports accompanying the legislation, “[a] provision of this sort is needed because of the unequal bargaining position of authors, resulting in part from the impossibility of determining a work's value until it has been exploited.” Both SGA and the Authors Guild were instrumental in fighting successfully for the inclusion of termination rights in the 1976 law.
“Our shared interests in the representation of the creative communities in our respective fields have prompted us to act together on this initiative, as we will in the future on other legislative matters of mutual concern” said Carnes. “Our organizations worked hard together in gaining termination rights for creators under the Copyright Act, and we continue to work together to ensure that all creators benefit from these hard-won gains.”
The Authors Guild (www.authorsguild.org ) is the oldest and largest society of published authors in the U.S., representing more than 8,500 book authors and freelance writers. Its members represent the broad sweep of American authorship, including authors of literary and genre fiction, nonfiction, and academic works, as well as children’s book authors, textbook authors, freelance journalists and poets. It advocates for fair contracts, effective copyright protection, and free expression.
The Songwriters Guild of America (www.songwritersguild.com) is the nation’s oldest and largest organization run exclusively by and for songwriters, with more than five thousand members nationwide and over seventy-five years of experience in advocacy for songwriters’ rights. It is a voluntary association comprised of songwriters, composers and the estates of deceased members. SGA’s efforts on behalf of all U.S. songwriters include advocacy before regulatory agencies and the U.S. Congress, and participating in litigation of significance to the creators of American music.