Ten Reasons Authors Aren't Retaking Their Copyrights: Guest Post
Joe Bogdan is an Assistant Professor at Columbia College Chicago and a founding principal of Silvershift.
Section 203 of the Copyright Act of 1976 grants to authors a termination right, which is now daily vesting in new authors the ability to regain control of their works. We are now more than 12 years into the window in which Section 203 recapture termination notices could have been served/recorded. While the number of recorded recapture termination notices to date is more than 10,000, the number of authors is far lower -- fewer than 500, in fact (several prolific authors have filed multiple notices).
As to the question of why a relatively few number of authors to date have filed recapture termination notices, several possible answers exist:
-- Authors lack knowledge and understanding of the right. Many authors lack knowledge that the recapture termination right even exists, let alone an understanding of what it could mean for them and/or how to avail themselves of it.
-- Authors have procrastinated. Even some authors who have knowledge that the recapture termination right exists, an understanding of what it could mean for them and how to avail themselves of it have procrastinated.
-- Authors are intimidated. The typical individual author is likely to have at least some fear of the "Establishment." Potentially adding to the fear/ intimidation factor is the fact that, under the provisions of Section 203, once the author serves his/her notice of recapture termination the current holder of the rights (as against whom the recapture termination would have effect) has an exclusive negotiation right for further rights to the copyright at issue, and that exclusivity lasts until the recapture termination notice takes effect.
-- There is a great deal of complexity in the process of exercising the right. Congress' drafting left ambiguities and glitches in the law -- there exists numerous potential pitfalls for authors seeking to exercise recapture termination. Most authors need a lawyer or knowledgeable advisor to successfully terminate.
-- Authors have intentionally delayed. Some authors have strategically delayed service and/or recordation in the hope that some of the ambiguity surrounding the right and its manner of exercise will be clarified by further legislation from Congress, rulemaking by the U.S. Copyright Office and/or third party litigation with favorable precedential value.
-- The Establishment has proactively renegotiated, preempting recapture termination. In some cases, the Establishment is reaching out proactively to authors, before receiving a notice of recapture termination, to offer a renegotiated deal. This may be for the purpose of gaining the psychological advantage afforded by having offered a friendly olive branch.
-- There is inadequate economic benefit. Most works of authorship have limited if any commercial value to begin with, let alone 35 years after having been licensed or otherwise conveyed. Lawyers working in this area indicate that many cannot afford (or will not pay) even a reasonable flat fee.
-- The aftermath of termination can be cumbersome and even counterproductive. While many authors have had success self-exploiting their works, others continue to choose Establishment output sources. The following arguments that may weigh against exercising the recapture termination right, simply to keep life "easy." 1: for a prolific author, splitting one’s body of work between multiple output sources is economically and logistically disadvantageous. 2: the existing Establishment holder of an author’s works -- some of which are currently subject to recapture termination and some of which are not -- may have the ability to offer a renegotiated deal regarding the author’s entire body of work, giving the existing holder a strategic advantage over any other option. 3, for certain types of works, such as sound recordings, the self-exploitation path can be logistically difficult and expensive.
-- Some deals are happening in private. Given a lot of the potential reasons specified above as to why more authors are not visibly exercising recapture termination (i.e., not recording notices of termination), it is likely the case that some renegotiations are happening for which there has not been, and will not be, any filing or recordation of a notice of recapture termination (perhaps even some of the most noticeably absent, i.e., from the highest profile authors).
-- Nobody wants to be the (expensive and high risk) test case where sound recordings are concerned. Given all of the factors listed above, one of the biggest reasons for the slow trickle of activity to date, particularly where sound recordings are concerned, is that nobody -- neither any author nor any member of the Establishment -- wants to be the first to litigate in earnest any/all of the ambiguities, glitches and pitfalls. This is because the litigation, when it does happen, is likely to be expensive, high profile, high risk and tumultuous.
It seems likely that we will see an increased number of Section 203 recapture termination notices recorded with the U.S. Copyright Office. First, it is likely that some of the reasons for the anemic pace of terminations to date will become weaker, and perhaps even disappear, over time. That said, and with an immense amount of respect for authors, it is also just as likely that artists will continue to be artists and intellectual property will continue to be intellectual property. This is to say that, for example, to the extent to which it is true that artists stereotypically procrastinate and/or that most aged intellectual property is low in value, there is nothing indicating a categorical change any time soon.
Despite the fact that a logical analysis leads to the conclusion that the pace of recapture terminations will increase, it seems that the Establishment is not in a panic. Major labels handling recapture termination notices on a case-by-case basis are relying on all of the potential reasons listed above for why there hasn’t been more recapture termination activity to date…and it’s bearing true so far. In addition, some feel as though, for them, it will all be a "wash" in any event, because they will pick up as many new artists and new works as they lose.