Publishing: "Perpetuity" May Not Be Forever
I had a conversation with my attorney recently who told me something that I never knew about copyright reversions. I bet most of you didn’t know it either:
If you enter into a publishing agreement which says the publisher shall keep your songs in “perpetuity” it might not actually mean forever. It could mean…only 35 years.
Apparently the law gives authors an opportunity to regain ownership of their works in order to protect them at the beginning of their career when there’s no way for all parties to truly measure what their catalog could eventually be worth.
I know what you’re thinking. 35 years? That will never come! Songwriters operate in a state of arrested development. We don’t believe we’ll ever grow up so why worry about it? I can assure you, the future always comes. We’re living in it. So listen up.
Here’s why it matters. Not only will we resume earning our full publishing royalty share but regaining ownership of our material gives us the opportunity to take those same compositions and enter into a new publishing agreement for yet another advance. Or we might choose to sell our catalog outright for what could be a substantial sum on which we can retire, pay for our kids’ college tuition, remodel our home, travel the world…or of course, some of us might even still be working! Retire? Never!
All this said, there are some conditions — “key statutory requirements” — that must be met in order to have your babies returned to your loving arms.
The publishing agreement must have been entered into after January 1, 1978.
Termination is only valid during a specific window.
Written notice much be exercised within a specific window as well and a copy of the notice must be recorded with the U.S. Copyright Office.
….or the termination deal (no pun intended) is off!
The fine print of these parameters might boggle your mind but it’s easy-peasy for a capable lawyer. So whatever you do, talk to yours (or talk to mine). Put an alert in your iCal. Although, who knows from what device we’ll be alerted 35 years from now. iPhones will be extinct. Whatever. Tell your kids (or your robot) to remind you! Just don’t forget or you could miss out on an opportunity for your songs to be the gift that keeps on giving.
And while we’re on the subject of publishing deals let’s talk about cut and release requirements shall we? C&Rs stipulate that the writer must have a minimum amount of original songs commercially released within a given year in order to receive the next year’s advance. But beware — a 10 song requirement turns into 20 if they’re co-written. 30 if there are 3 writers on each tune. And so on and so on. Yikes. So stop co-writing! (Just kidding.)
In some cases publishers require that songs be released on a major label and within the territory of the United States. So even if you have 5 colossal hits in Germany you still don’t pass go and collect $200. New writers don’t realize they could be waiting 5 years for their 2nd year advance.
In addition, a C&R could delay entering into another situation. For instance, a pal of mine had 3 No. 1s but his C&R was so unrealistically high he couldn’t meet it. His publisher wouldn’t renegotiate or loosen the terms. IMO they didn’t see the big picture because as soon as he (finally) reached his quota he took off like a bat out of hell and beelined for the competition.
I don’t remember C&Rs being a thing when I was coming up. But generally speaking, when market share (rather than nurturing talent) became a corporate priority, publishers realized how they could keep writers longer without paying them more. More bang for their buck. It’s the opposite of what’s happened with air travel — by the time we pay to choose our seat in advance and for the extra checked bag and the purchased meal…you get where I’m going. More buck, (from us). Less bang.
So…do not agree to a Cut and Release requirement you can’t possibly meet. And if you’re thinking of signing on the dotted line, make sure you know the terms of your contract and that you have an attorney who wants to protect you and doesn’t take this stuff casually in order to get to his next billable call.
A lawyer who has your best interest at heart will have you looking back in 35 years, when times have changed and digital hits aren’t as abundant or as lucrative as they used to be, and thanking him (or her) because you still have a roof over your head. Maybe even two.
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