By Rob Abb *

What do Billy Joel, Bruce Springsteen, and Bob Segar have in common, besides being legends of rock and roll?  In two years, each rock icon faces a potential legal battle with his record company over rights to some of his most successful albums.

Currently, their record companies own the copyrights to some of the artists’ most famous and successful works.  However, in 2013, Joel can exercise his termination rights under the 1976 Copyright Act and regain control of his 1978 album, “52 Street.” Similarly, Springsteen can reclaim control of his 1978 album, “Darkness on the Edge of Town,” and Segar can reclaim his 1978 album, “Stranger in Town.”

How are Joel, Springsteen, and Segar planning to reclaim their work?  When Congress passed the Copyright Act in 1976, it included a new property right – a right that authors or their estates can use to recapture ownership and control of copyrights by terminating past assignments or licenses of those works following a set number of years.  The right is granted to authors, including songwriters, poets, novelists, painters, etc., and ensures that grants of even the entire copyright can be terminated, regardless of consideration or what the contract specifies.  Accordingly, Congress made the termination right “inalienable.”

Although these rights have existed for decades, it is still relatively rare that authors employ their termination rights, possibly as low as 4% on average. However, there have been some well-known authors who have used their termination rights to recapture copyrights in their works.  For example, John Steinbeck’s estate recently terminated the copyrights the author originally granted to Penguin Books in his novels, including “Grapes of Wrath,” “Of Mice And Men,” and “In Dubious Battle.”

The first big wave of termination claims is expected soon, when many recording artists who released music after the 1976 Copyright Act went into effect in 1978 will be able to start exercising their termination rights  (the 35 year time limit ends in 2013).  Anticipating a wave of claims that could cost their members significant sums of money from royalties, the Recording Industry of America (RIAA), representing the major record companies, has already started to make its stance known.  The RIAA argues that the recording artists’ works are technically “works for hire,” and created “not by independent performers but by musicians who are, in essence, employees of the labels.”  Accordingly, artists who attempt to use their termination rights will have to argue that they were independent performers and do not fall within the “work for hire” exclusion.

Additionally, the artists can rely on the Supreme Court’s reasoning in Mills Music, Inc., v. Snyder Et Al. to contend that the very purpose of § 304 was to protect artists in their situation:

“[T]he termination right was expressly intended to relieve authors of the consequences of ill-advised and unremunerative grants    that had been made before the author had a fair opportunity to appreciate the true value of his work product.  That general purpose is plainly defined in the legislative history and, indeed, is fairly inferable from the text of § 304 itself.”

In response to this confusion and the brewing fight to come, some members of Congress, including Representative John Conyers Jr., of Michigan, have suggested amending the Copyright Act to clarify the Congressional intent behind termination rights and guarantee a fair marketplace.  However, with Republican control of the House of Representatives and so much focus on the upcoming presidential election, it is difficult to imagine Democratic Rep. Conyers Jr. making progress towards passing any kind of legislation.

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*Rob Abb is a third-year law student at Wake Forest University School of Law and is President of the International Law Society.  He holds a Bachelor of Arts and Science in Political Science and Asian Studies from the University of Michigan.  Upon graduation in 2012, Mr. Abb plans to practice international law.