RECAPTURE: The Songwriters’ Pension NSAI

Songwriters tend to let publishers manage their music forever, and that can be a big mistake. The Copyright Revision Act of 1976 contains a provision giving songwriters the right to terminate assignments of their songs to publishers, not including works for hire. The songwriters may then recapture their interest in those songs for their own use.

Songwriters tend to let publishers manage their music forever, and that can be a big mistake. The Copyright Revision Act of 1976 contains a provision giving songwriters the right to terminate assignments of their songs to publishers, not including works for hire. The songwriters may then recapture their interest in those songs for their own use.

But the process of recapturing can be somewhat complex. Most songwriters need an expert to help them through the process, and it’s important that the expert not be a lawyer who charges $250 an hour-whether or not the attempt at recapture is successful.

Allow me to introduce you to Jim McBride and his sons, Brent and Wes. They run a company on Nashville’s Music Row called Copyright Recapture, and their job is to help songwriters recapture publishing rights on those songs which the law says they have the right to own for many years to come. They, along with the Nashville Songwriters Association International (NSAI), have taken strides to research this particular issue and push it to the forefront of songwriters’ interests.

When I first knew Mr. McBride, he was a postman in Huntsville, Ala., who was sending songs up to Curly Putman’s Green Grass Music, hoping for a break. Over the years McBride has had a bit songwriting success, most notably four No. 1 hits with Alan Jackson (including the classics “Chattahoochee” and “Chasin’ That Neon Rainbow”), as well as numerous other memorable hits by Waylon Jennings, Conway Twitty, Johnny Lee and others.

A few years ago the hits stopped coming. By this time, McBride was not hurting for cash but he needed a purpose. Furthermore, his two sons’ rock band had lost their record deal and were casting about for something to do.

“It was probably my 24th year writing songs for a living and I was feeling a little unwanted and a little burned out,” McBride says. “I had said when I came here, that if I could do it for 25 years, that’d be great. I went to a Town Hall meeting where they were talking about recapturing copyrights. I came home and was telling my son Brent about it. No more than a week before that Brent had been saying, ‘If I’m not gonna play music, I’d really like to find something worthwhile in the music business to do.’ He and Wes both have a wide knowledge of music. So I’m telling Wes about this…I said ‘I just don’t think most writers know anything about this and their families sure don’t. Somebody’s gonna start a business helping people terminate these copyrights.’”

So Brent started studying the entire copyright law. “We met with five lawyers in town,” Brent says. “We got the opinion from the top ethics attorneys in the state. We spent a year researching, making sure we wouldn’t be perceived as practicing law, making sure we knew what we were talking about…before we ever opened the doors.

“Basically you’re dealing with two copyright laws; there’s a pre-’78 law and a post-’78 law. The post-’78 law is actually the copyright law of ’76. Pre-’78, you’re dealing with two 28-year terms. In most cases the assignments signed by the writer gave the publisher the right to both 28-year terms. The law states that at the end of that 56-year period, the writers or their heirs, if there are no heirs then the executor, if there’s not an executor then the next of kin-it’s a very specific order-then the legal claimant at that point can serve a notice of termination to the publisher. There’s a 95-year life to a pre-’78 copyright from the date of registration.”

Post-’78 copyrights, he reminds us, have a life of 70 years past the death of the last surviving author. So let’s say a 60-year-old writes a song with a 20-year-old writer who dies at the age of 90. The 60-year-old dies ten years later. His copyright will stay in the family for another 130 years, perhaps brightening the lives of great-great-great grandchildren that he wouldn’t even have liked, had he known them. Anyway, you can see the potential value to the family of a writer who recaptures his body of work.

Both laws allow the writer to send his publisher a notice up to ten years before he is eligible to get the song back. (Post-’78 songs are recapturable after 35 years.) But you must give the publisher at least two years notice if you hope to get it back on your first day of eligibility. If you do not give that two-year notice, you still have five more years to notify the publisher that you want your copyright back, after which time the copyright belongs to the publisher for the rest of its life. (The pre-’78 law actually allows for a second opportunity to terminate at the 75-year mark. The post-’78 law does not have a 2nd window of opportunity.)

“Writers need to be aware of their rights,” says Brent. Both Jim and Brent are aware that many writers are gun-shy about approaching publishers to recapture copyrights. In the old days, Nashville publishers in particular were very paternalistic to their songwriter “children.” Jim reminds us that this is business, that writers have a right to do business and that, in most cases, their old publishers long ago sold their catalogs to huge conglomerates with no institutional memory of the days when a writer used to cadge advances from his publisher for this or that emergency. Chances are that the writer will be talking to an employee who deals with recapture issues as part of his or her job routine.

It’s not always easy to get terminations done. A majority of the writers on any particular song must agree to termination for it to happen. (This only applies to the post-’78 law and only applies if the writers signed the same assignment.) Also, some writers have their copyrights scattered among many different publishers. Companies get sold and it’s not always easy to keep track of what company owns what song, especially if the song has not been earning royalties for the writer. To track down songs, Jim and Brent go to the Copyright Office in Washington D.C. The Copyright Office charges fees, but they are affordable and may be well worth it.

Since the McBrides opened their doors in 2004, they have submitted termination notices on 328 songs and thus far, 76 of them are already earning money for the families of deceased writers. The rules for pre-’78 copyrights allow for quicker recapture for families of deceased writers-in some cases.

“Rita Allison (widow of songwriting great Joe Allison) was our first client,” says Jim. “We didn’t even have the doors open and Rita called Joyce Rice about a copyright question-she was afraid Joe’s songs were gonna go into the public domain or something. Joyce says, ‘I don’t know, call these guys.’ The first song we got back, the one that was in danger of being lost was “When You Leave Don’t Slam The Door” from 1946, Joe’s first hit with Tex Ritter.

Jim and Brent want to disabuse songwriters of the notion that music publishers are benign representatives of their interests. “Writers need to know that they will never ever receive a letter from the publisher going, ‘Hey, guess what, your ten-year window is open and you know we’ve only got this song a few more years.’ Our job is to let you know, and we send out letters, we do research…based on what songs are that window open on right now. We’re right now getting songs back from the 40s, and we’re writing letters on songs from ’78, ’79, ’80 and ’81. Next year ’82 will come into play.”

Thanks to the McBrides and others, thousands of writers and heirs will find a way to secure their futures by taking advantage of rights that were specifically reserved for them by the Congress of the United States. Anybody who has written a body of songs large or small that is published by others and has earned money needs to consult with competent, honest copyright experts who can help them assert their rights.