Copyright Reclamation and Term Extensions: Holiday Edition

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If artists don’t follow the technical procedures to reclaim their copyrights correctly, copyright term extensions just turn into a windfall for their middlemen.


In keeping with the holiday spirit, the most recent court ruling on copyright reclamation rules revolves around the publishing rights for “Santa Claus Is Comin' To Town.” Unfortunately for the composers’ heirs, a mistake in attempting to reclaim their copyright back in 1981 means that the economic windfall of 20 extra years of copyright protection will go straight to the song’s publisher.

Copyright law is meant to benefit artists as a means of ultimately serving the public good. Unfortunately, this case shows how the system still sometimes fails on both counts. Copyright term extensions have kept Santa Claus Is Coming To Town out of the public domain for almost 80 years now, while a procedural error has also kept the copyright out of the hands of the composers’ heirs. As a result, the middleman (here, EMI’s publishing arm) enjoys a windfall of profits while the composers and the public both lose out.

The Copyright History of Santa Claus Is Coming To Town

John Frederick Coots and Haven Gillespie wrote “Santa Claus Is Comin' To Town” in 1934, and sold their rights to that song to Leo Feist, Inc. (which would be later bought by EMI’s publishing arm). At the time it was written, the song was only entitled to 28 years of copyright protection, plus an extra 28 years if the composers renewed the song. So, in 1951, Feist also bought the right to renew the song’s copyright for the rest of its term. So far, so good: the publishing company has effectively purchased all the rights to this jolly Christmas classic and is set to enjoy its royalties until the song’s copyright expires in 1990.

But wait! In 1976, Congress passed a new Copyright Act, giving Santa Claus Is Comin' To Town another 19 years of copyright protection. The new law, however, also gave authors certain ways to terminate their agreements so any economic benefits, if any, from those extra 19 years could at least help out the actual artist. So under that law, in 1981 Coots notified Feist he wanted to terminate their 1951 deal and sent a notice of termination to the Copyright Office. A couple months later, Coots and his children struck a new deal with Feist (now EMI) in which they received better royalties and $100,000 in exchange for giving EMI the song’s post-1990 copyright (which at the time would have ended in 2009). A letter from the Copyright Office indicates that after Coots and EMI had struck their deal, Coots’ attorney asked the Copyright Office to return the termination notice without recording it (this will be important later).

Are we done yet? No! In 1998, Congress once again decided to give 20 more years of copyright protection to works already created, including our favorite holiday jingle, and once again included certain mechanisms for artists to reclaim their copyrights for those last 20 years if they had already sold away their copyrights to someone else.

In 2004, 2007, and 2012, Coots’ heirs tried and tried again to terminate the 1981 agreement and get back the song rights for 2009-2029, but this past Tuesday a federal court ruled that, since the 1981 termination notice was never officially recorded at the Copyright Office (remember that detail?), Coots never officially regained his copyright to sell away again. So, his heirs now have no way to terminate the rights transfer from way back in 1951 in order to get back Coots’ copyright for 2009-2029.

Takeaways: Who Is Copyright Supposed to Benefit Again?

If you’re thinking to yourself (1) it is crazy that a song written 14 years before the invention of the LP record is still under copyright for the next 16 years, and (2) it makes no sense that this insanely long copyright term is only benefitting a company who bought the copyright thinking it was going to expire 4 years ago, then you are correct.

Of course, recordation rules have their own value in copyright law, but the broader point here is that Congress has extended and extended and extended copyright terms, only to make artists go through complex and easily-botched procedural rules to even attempt to benefit directly from the extra term. Actually, in this story you can see that the actual effort of recording the termination wasn’t the problem—after all, Coots’ lawyer did send the Copyright Office the notice, but then for some unknown reason (perhaps even confusion about the copyright reclamation rules) affirmatively withdrew the notice later on.

It is possible to have a system with clear, thorough, and accessible copyright transfer records and simple, easy-to-follow rules for copyright reclamation for artists, but our current system fails on both counts.

As a side note, this case may be a cautionary tale for artists terminating deals today: it may be wiser to make sure you actually terminate the first deal and then re-assign your copyright—even if it’s to the same company—instead of just renegotiating a deal in exchange for a promise not to reclaim your rights. In copyright, as in baseball, your follow-through can make or break you.

But back to the main point: the U.S.’s bloated copyright terms have hampered the public’s ability to use, remix, and enjoy our cultural heritage. And to make matters worse, complex copyright reclamation rules mean that whatever term extension windfalls can be had often go to middlemen anyway. As our national conversation on copyright reform moves forward, this is one more area where the law could stand much improvement to serve its actual purpose: benefitting the public by incentivizing authors to make new works.

 

Image credit: Shinya Suzuki

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