Can I get my copyright back if I transfer it to someone else? Johansen v Sony

A copyright is a set of exclusive rights granted to the creator of a new artistic expression. When an artist creates a new work of art the artist is automatically granted a copyright to their work. This means that when a painter creates a painting, a photographer takes a picture or a musician records their song, they are granted a copyright to their creation. A copyright can be registered in the United States by filing an application with the Copyright Office of the Library of Congress. Registration grants a copyright owner additional rights, but it not necessary for a copyright to be granted in the first place. A copyright grants the owner of the copyright the exclusive right to reproduce, distribute, display, perform, transmit and to prepare derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these rights that can be considered copyright infringement.

A copyright is treated like a piece of personal property. Ownership of the copyright is first vested in the creator of the work at the time of creation. The owner may then transfer, or sell, the entire copyright or each of the exclusive rights individually to another person. However, unlike other sales of personal property, an artist has an opportunity to get their property back after a sale. A little known aspect of United States Copyright Law is 17 U.S.C. § 203, Termination of transfers and licenses granted by the author. This law grants an artist the ability to cancel a copyright transfer thirty five years after the transfer was made. If the artist is deceased, the heirs of the artist are granted the same ability. To exercise this right, an artist must send the current owner of the copyright written notice of the termination and file the notice with the Copyright Office.

The public policy behind this law is that artists, musicians and other creative crafts typically do not enjoy early commercial success. It would be unfair to penalize an artist who, out of desperation or naivety, transferred a copyright early in their career. The Copyright Act of 1790, borrowed the concept from the English Statute of Anne, enacted in 1709, the first copyright law. Successive versions of United States Copyright Acts in 1831, 1870, 1909 and 1976 have included a method for artists to regain their copyrights.

Two cases which are going to put a spotlight on 17 U.S.C. § 203 are WAITE v. UMG RECORDINGS INC., 19-cv-01091 (S.D.NY 2019) and DAVID JOHANSEN v. SONY MUSIC ENTERTAINMENT INC., 19-cv-01094 (S.D.NY 2019). While the parties in these cases are different the facts are very similar. The defendant is a major music publisher. The plaintiff is a musician that transferred their copyright to the defendant more than 35 years ago. The plaintiff sent notice under 17 U.S.C. § 203 to terminate the transfer to the defendant. The defendant claims the copyrighted works were “works for hire” and exempt from 17 U.S.C. § 203. The plaintiff filed suit alleging that the defendant’s sale of the plaintiff music after the termination was copyright infringement. The plaintiff also requested class action status.

This case has the potential to dramatically change the music industry, it will be interesting to see how the case unfolds.

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