On January 24, 2012, Arent Fox’s Paul Fakler spoke on a panel at the annual meeting of the New York State Bar Association Intellectual Property Law Section, discussing recording artists’ and producers’ rights to terminate their prior assignments and recapture the copyrights to their sound recordings from the record labels.

Due to differences in the Copyright Act’s termination provisions applicable to sound recording created before and after 1978, 2013 will be the first year that assignments of sound recording copyrights will ever be subject to termination, and significant litigation is expected between recordings artists and the record companies.

One key issue to be litigated will be whether sound recordings are “works made for hire” as defined by the Copyright Act, because such works cannot be subject to termination. Paul, who first litigated this issue against the record companies over 10 years ago, discussed the termination issues from the perspective of the recording artists and producers, while other panelists took the record companies’ side of the argument, leading to a spirited discussion and debate.