NewYorkUniversity
LawReview
Current Issue

Volume 93, Number 4

October 2018

Termination Rights in the Music Industry: Revolutionary or Ripe for Reform?

Chase A. Brennick

When Congress passed the Copyright Act of 1976, it enacted Section 203, which allows authors to terminate transfers of the copyright in their works thirty-five years after the transfer. Congress intended this to be the author’s “second chance” after having made a disadvantageous first deal, either due to a lack of bargaining power or an inability to predict the work’s future value. Within the music industry, the impact of Section 203 has been contested, with some arguing that it will fundamentally shift the balance of power between recording artists and songwriters (the authors) and record labels and music publishers (the transferees), and others expecting that the provision will provoke contentious litigation of Section 203’s statutory exceptions. Because the first works reached termination eligibility in 2013, the effects of Section 203 remain unclear. In this Note, I argue that, even if an author circumvents the statutory exceptions, Section 203 is largely ineffective because several factors prevent a clean severance of the relationship between the author and transferee. Complications related to jointly authored works, the jurisdictional limitation to the United States, and contract provisions that survive post-termination create a situation where the author may regain his or her U.S. copyrights but will remain tethered to the transferee. Although an author could theoretically self- administer his or her U.S. copyrights or transfer these rights to a new transferee, the economically rational option is to retransfer the copyrights to the original transferee. This result precludes any significant impact on the music industry’s power dynamics, despite Congress’s (and the authors’) initial hopes that Section 203 would be a tool for change.