Del Casino Exposes Copyright ‘Gap’

Copyright Office Acknowledges Problem; to Extend ‘Notice of Inquiry’

[Press Release] – Intellectual Property and Copyright Law Attorney Casey Del Casino, of Adams and Reese, received notice from the U.S. Copyright Office that his observation regarding a “significant gap” in the termination rights provisions of the Copyright Act of 1976 will result in the office to issue a ‘Notice of Inquiry’ –  soliciting opinions and experiences of various authors and stakeholders to make recommendations to Congress about necessary amendments to the Copyright Act.

The gap deals with Section 203 and Section 304 of the Copyright Act and could affect many songwriters and publishers in Nashville, said Del Casino, as he released his findings in a recent presentation to the Nashville Bar Association Intellectual Property Section held Wednesday at the offices of the Nashville Songwriters Association International (NSAI).

Casey Del Casino

Del Casino, who has been having discussions with counsel for the Copyright Office about this “gap” for nearly a year now, also advised the NBA IP Section, along with NSAI’s Bart Herbison, Executive Director, and Debi Cochran, Legislative Director, that he had just received an email from counsel for the Copyright Office, advising that they are preparing a ‘Notice Of Inquiry’ with respect to this “gap” in the termination rights provisions of the Copyright Act for release in mid-March.

Under Section 203, the exclusive or nonexclusive grant of a transfer or license of copyright or any right under copyright, executed by the author on or after January 1, 1978, is subject to termination and Section 203 further provides that:

“Termination of the grant may be effected during a period of five years beginning at the end of 35 years from the date of execution of the grant; or if the grant covers the right of publication of the work, the period begins at the end of 35 years from the date of publication or at the end of 40 years from the date of execution of the grant, whichever term ends earlier.”

Section 304 states that:
“In the case of any copyright subsisting in either its first or renewal term on January 1, 1978 … the exclusive or nonexclusive grant of a transfer of the renewal copyright or any right under it, executed before January 1, 1978 … is subject to termination under the following conditions: (3) Termination of the grant may be effected at any time during a period of five years beginning at the end of 56 years from the date the copyright was originally secured, or beginning on January 1, 1978, whichever is later.”

Del Casino said the gap is best illustrated by the question of when would the transfer of a copyright in a musical composition, created and published in 1979, which was written pursuant to a long-term exclusive songwriting agreement, dated January 1, 1976, be terminable and under which provision of the Act – Section 203 or Section 304.

“There are real world consequences to the confusion outlined in these two sections. The termination provisions of the Act are silent with respect to the termination of a transfer of copyright in a work, which transfer of copyright purportedly occurred, prior to January 1, 1978, in a work created, subsequent to January 1, 1978,” said Del Casino.

Del Casino studied and researched the provisions for about a year, originally acting on behalf of a client, who had entered into a long-term exclusive songwriting agreement with a publisher in 1976 and later created musical compositions in 1979, pursuant to the agreement. Del Casino said notices of termination were served upon the successor-in-interest to the original publisher by the original songwriter in February 2008, pursuant to Section 203 of the Act for the musical compositions, created in 1979.

“In passing the termination rights provisions of both Section 203 and Section 304 of the Act, Congress expressed its belief of the need for a safeguard to protect authors against unrenunerative transfers due to both the unequal bargaining power of authors and the impossibility of determining a work’s value until it had been exploited,” said Del Casino. “In light of these goals, it is our belief that this gap between these Sections renders the termination of certain transfers of copyright in certain works impossible … Many publishers will appreciate more certainty as to whether terminations are effective, not only so they can respond accordingly to terminations served on them but so they can properly asses the value of their copyright portfolios.”

Del Casino is Special Counsel with the Special Business Services Practice Group in the Adams and Reese Nashville Music Row office. He has extensive experience in handling intellectual property and copyright law matters for members of the entertainment industry including artists, record companies, songwriters, publishers, managers, producers and executives.

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David M. Ross has been covering Nashville's music industry for over 25 years. [email protected]

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