What if your now deceased spouse, parent or grandparent entered into a publishing or record deal and the termination period is coming up? Do you have any rights to the masters or underlying compositions? As we know, copyrights can be left to an estate (think Jimi Hendrix, John Lennon, Bob Marley, etc). So, the answer is “yes.” Let’s take a look at how this works.
First, remember, for post 1978 works the termination for an assignment (not a work made for hire) is 35-40 years after the grant was made. Feel free to take a look back at the first installment of this subject (Click Here for First Installment) to get reacquainted with the time frames. Assuming the time frame is coming up, what can you do?
Let’s look at who can terminate. The original author or creator can obviously exercise the right to terminate. However, a surviving spouse and children can also terminate an assignment. If the children are deceased then the grandchildren of the author or creator can exercise this right.
100% of the termination rights will be divided up between the spouse and children or the spouse and grandchildren, as the case may be. The way this is divided is 50% to the surviving spouse and 50% split equally among the children or grandchildren. Let’s look at a couple of examples, shall we?
1. Surviving spouse with no children.
2. Surviving spouse with four children.
3. Surviving spouse with no surviving children and three surviving grandchildren.
Again, in all of these scenarios, the spouse has 50% of the termination rights. In #1 the surviving spouse has 100% of the termination rights. In #2 the spouse has 50% and each child has 12.5% of the termination rights (50% ÷ 4) . Finally in #3, the spouse again has 50% and each grandchild has 16.67% of the termination rights (50% ÷ 3).
Why do these percentages matter? Well, to serve proper notice and to exercise termination rights, over 50% of the interests in termination rights must agree and serve notice. You see how this can cause some family strife, right? If you thought Thanksgiving dinner was stressful, can you imagine this conversation? “I am happy with the royalties we are getting, let’s just leave this alone.” Your sibling, “I want these copyrights back because I think we can do a lot more with them and preserve Mom’s legacy. Can you pass the dinner rolls?”
This is all assuming the spouse wants to terminate. What if the children or grandchildren want to terminate and the spouse does not? Or what if the spouse wants to and none of the children or grandchildren want to terminate? Pass the wine, please.
If the spouse wants to recapture the copyrights, he/she must convince at least one child to join him/her. More wine please.
Assuming everyone agrees to terminate, this would not be an issue. It is just something everyone should be aware of when dealing with copyrights and recapture.
Next up in the series is dealing with works written or recorded prior to 1978. Stay tuned.