Music Business 101

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  • Miscellaneous Membership Issues: Copyright

Copyright Generally

A copyright owner has a number of different exclusive rights contained within a single copyright (often referred to as a “bundle of rights”). One of those exclusive rights is the ‘Performance Right’ or the right to “perform the copyrighted work publicly.” See the U.S. Copyright Act, 17 U.S.C § 106(4). ASCAP licenses the non-dramatic public performance right of its members’ works to music users for a fee and distributes the license fees received as royalties to ASCAP members.

For more information about music licensing, please visit our Licensing FAQ. For more information about copyright, please visit the U.S. Copyright Office’s website at http://www.copyright.gov. If you have any questions or concerns about your copyrights, you should consult an experienced attorney.

Registration

Compositions receive federal copyright protection as soon as they are fixed in a tangible medium, which is most often achieved upon writing or recording the work, but registering your works with the Copyright Office provides you with certain benefits under the law. ASCAP does not register works with the Copyright Office and submitting your work to ASCAP for registration with ASCAP is not an alternative to Copyright Office Registration.

ASCAP members are solely responsible for all issues relating to copyright, including registration, renewal, and termination. For more information about copyright registration and other copyright issues, please visit The U.S. Copyright Office’s website at http://www.copyright.gov. If you have any questions or concerns about your copyrights, you should consult an experienced attorney.

Duration

Copyrights do not have an unlimited duration. Works created on or after January 1, 1978 (or created but unpublished before 1978) have a single copyright term that extends, in most cases, for the life of the author plus 70 years (or in the case of co-written songs, plus 70 years from the last surviving author’s death). These works do not require renewal to exercise the full life of the copyright.

The concept of renewals affects only "pre-1978" works (i.e. works in copyright before January 1, 1978). For any of these works, the copyright term is divided into two terms: (1) an initial term of 28 years following the earlier of the work's (a) creation and publication with notice or (b) registration, and then (2) a renewal term of an additional 67 years. Because more than 28 years have passed since December 31, 1977 (the last day before the effective date of the "new" Copyright Act), all pre-1978 works that are still in copyright are now in their renewal terms. In order to obtain the renewal term for pre-1978 works, filing a renewal registration with the Copyright Office may be necessary. Generally, only works copyrighted prior to January 1, 1964 require renewal registration with the Copyright Office.

The renewal belongs generally to the writer. However, if a writer enters into an agreement assigning the renewal term and the writer is still alive when the renewal is to become effective, the copyright in the renewal term will belong to the assignee (e.g., the publisher). However, if the writer in such case dies prior to the renewal, then the copyright law grants to certain surviving heirs the right to claim the renewal term despite the writer’s previous agreement.

ASCAP does not file copyright renewals on behalf of its members. For more information about duration, renewal and other copyright issues, please visit http://www.copyright.gov. If you have any questions or concerns about your copyrights, you should consult an experienced attorney.

Recapture

Congress provided a means for recapturing the extended term where rights had been assigned or licensed to third parties. Specifically, if a writer or one of a writer's statutory heirs entered into an agreement assigning or licensing a renewal copyright before January 1, 1978, whatever rights were granted could be recaptured for the duration of the renewal term. (Note that the only grants subject to this form of recapture are those made by the writer or a statutory heir while living, not any grants made by will.) If the writer is still alive, the writer may exercise the recapture himself. If the writer has died, the recapture may be exercised by the writer's surviving spouse and children (including grandchildren by a predeceased child), or, if there are none, by the writer's executor or administrator. The recapture provision applies only to works in copyright before 1978 and are not works made for hire.

The recapture must be exercised by following a specified notification procedure during the 5-year period beginning 56 years from the date copyright was originally secured, or beginning January 1, 1978, whichever is later. If a termination notice was not effectuated during that 5-year window, a second termination option exists to reclaim the final 20 years of the renewal term (added under the 1998 Sonny Bono Copyright term Extension Act). This second option for recapture must be exercised during 5-year period beginning 75 years after copyright was originally secured.

ASCAP does not effectuate recapture copyrights on behalf of our members. For more information about renewals and other copyright issues, please visit the U.S. Copyright Office’s website at http://www.copyright.gov. If you have any questions or concerns about your copyrights, you should consult an experienced attorney.

Termination

The Copyright Act affords a writer the opportunity to terminate any transfer or license of works made by the writer on or after January 1, 1978. This right of termination applies only to agreements that a writer has made during his or her lifetime and not to any copyright grant contained in the writer's Will.

The right can be exercised by the writer him or herself or, if the writer has died, by the writer's surviving spouse and children (including grandchildren by a predeceased child). If the writer is not survived by any spouse, child, or grandchild, the right to terminate the grant passes to the writer's executor or administrator. The result in all cases is to recover all rights that the writer had granted, regardless of any agreement about the work to the contrary.

Termination can take effect only during the 5-year period beginning 35 years after the date of the grant, but a notice is required to initiate the termination. This notice must be sent between 2 to 10 years before the effective date of the termination and recorded with the Copyright Office. Because this termination right applies only to grants related to works made on or after January 1, 1978, the year 2003 is the first year that termination notices could have been sent, and 2013 is the first year that any will take effect.

When planning for the disposition of the copyright in a work that the writer has previously transferred or licensed, keep in mind the possibility that the grant may be terminated and the rights recovered.

In order to process a member's request to update a work records pursuant to a termination, ASCAP requires:

• Correspondence from the claiming publisher describing the request, along with instruction as to the ASCAP publisher member that is to receive the reclaimed interest received by ASCAP no earlier than one quarter in advance of the effective date;

• A copy of the Notice of Termination as served on the original grantee, which should include a list of works claimed, along with evidence of recordation with the Copyright Office. (Note: Evidence of submission of the Notice of Termination to the Copyright Office is sufficient, we do not need to see evidence of completed recordation)

Cover letters and copies of notices should be submitted in ASCAP Member Access via Member Service Inquiry (Category: 'My Catalog', Topic: 'Copyright Claims - Reclamation of Post-1978 Works'). Please note that ASCAP can accept claims no more than one quarter in advance of the effective date.

Be advised that ASCAP will not make a determination of the sufficiency of the request, but will provide a copy of the Notice of Termination to the original grantee to confirm the termination before updating our records.

ASCAP does not terminate transfers of copyrights on behalf of our members. For more information about terminations and other copyright issues, please visit http://www.copyright.gov. If you have any questions or concerns about termination or your copyrights, you should consult an experienced attorney.

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