As Don Henley told the New York Times, what's at stake is "fairness" and "parity." The Eagles lead singer, who also heads a group called the Recording Artists Coalition, was referring to a revision to copyright law, made in the 1970s, that could drastically affect the ownership of some of the cornerstones of classic rock. As the Times explored last week, a "termination right," written into copyright law more than 30 years ago, is now putting certain songs back on the rights block, allowing artists to renegotiate royalty rates on their works or reclaim ownership entirely. The termination right could also create some waves for print publishers, as authors seek to do the same thing as songwriters.
Attorney Lloyd Jassin has been talking about the termination clause for well over a year now, going so far as to call it a "ticking time bomb." The clause is extremely technical, but, as he explained, it essentially allows creators to reclaim rights to their works from publishers 35 years after their creation, as opposed to the current standard of the life of the author plus 70 years. The earliest works affected, therefore, are those released in 1978.
Although the termination clause has the potential to lead to publishers getting inundated with requests to renegotiate contracts, the specific way that claims must be made may hamper the process. Jassin said authors need to take multiple considerations into account when making a claim, including to whom to send the notice and when to send the notice. In situations involving works by dead authors, Jassin added, negotiations can become even more complicated because the copyright act does not apply to heirs in the same way as literary estates, where inheritors are named in a will. While the termination right does not encompass "works for hire," it does bring into play film options, for example.
The Authors Guild has been acutely aware of the termination right and, as the guild's general counsel, Jan Constantine, explained, education has been its first priority. "We're looking into areas where we can assist our members and have largely been referring them to legal experts." At this point, the guild has been fielding more queries from agents than authors. "Members should seek out a lawyer for these negotiations," Constantine said. "If you make a mistake, you lose your termination." Since the termination right deals with copyright law, it's an area, Constantine said, that many agents, even those with law degrees, will not be versed in.
While the music industry may be headed for a barrage of lawsuits as a result of the termination clause, many on the front lines of this issue in publishing see it being less contentious. Constantine thinks the right is very clear and doubts publishers will challenge it out of the gate. She assumes some lawsuits may crop up, though, especially "if the termination isn't done properly."
Jassin is more of an alarmist. He believes this will be one of the topics of conversation in the industry over the next few years. "Does this have the ability to harm the bottom line of the big six? Without question," he said. And with Amazon looming as an ideal partner for author-publishers amid the growing popularity of e-books and self-publishing, Jassin thinks the termination right opens up the opportunity for authors to cut both publishers and agents out of potential new deals.
Agent Gail Hochman, head of the Association of Authors' Representatives, said she is "sure that literary agents are watching this news story regarding musicians' rights" and that her group has been sponsoring a number of seminars on the topic. Another agent who sees a storm brewing is Robert Gottlieb. The chairman of Trident Media Group thinks the termination right will especially come into play on the digital front. "Publishers need to come up with effective strategies to convince authors to keep their backlist business with them given the fast changes in e-book publishing occurring in today's market. One way is to offer additional advances with limited rights."
While Jassin went so far as to say that the termination right is "setting the stage for radical changes in book publishing," many agents PW contacted, especially those at newer agencies, knew less about the situation. Although the termination right is currently something in play for older authors and dead authors, this will change, as all works published after 1978 will, after enough time passes, be affected. For Jassin, the clock is literally ticking—he posted what he calls a "doomsday clock" on his Web site that counts down until the first termination notices can take effect—and publishers should take heed. "[For authors] this is about getting a second, juicier, bite of the royalty apple," he said. "And it's an unsolvable problem for publishers who don't own their copyrights."
How It Works
PW asked attorney Lloyd Jassin to break down how the termination right works. Here's his explanation.
The claim system works on a 35-year plan. Provided certain conditions are met, a publishing contract can be terminated during a five-year window, which begins 35 years after initial publication, or 40 years from the date the contract was signed. The termination right applies to any book published on or after 1978. So, taking a work published in 1978 as an example, the earliest the termination right could take effect is 2013 (since it takes two years after filing to get the rights back), but the latest a termination notice could be filed is 2016, in order to fall within the five-year eligibility window (because the window expires in 2018).