THE DIFFERENCE A WORD MAKES
Updated: Apr 3, 2019
The words are term and life.
Since 2012, I have been terminating the original publishers rights to my late husband, Harlan Howard’s, songs and reclaiming them for his heirs, of which I am one. This all began 10 years after his death. To date, some of his classic tunes have come home, songs such as, “I Fall To Pieces,” “Busted,” “He Called Me Baby,” and “Heartaches By The Number,” just to name a few.
When Harlan and I met in 1987, he loved the fact that I had a good work ethic, I was level-headed and smart. He mentioned early on he wanted to mentor me in the art of music publishing, so that I could take care of his copyrights long after he was gone.
I understood that the copyrights would be returned; however, I didn’t understand that the foreign rights to his songs would remain with the original publisher, neither did Harlan. Copyright recapture is fairly new and largely misunderstood in the music industry for good reason. Copyright laws are confusing at best, and are complicated by design. In fact, it took me a good thirty years to understand them. Not until I had the opportunity to terminate Harlan’s original publishing rights did I understand the scope of deception. For example, Harlan Howard and Hank Cochran co-wrote, “I Fall To Pieces” in December 1960. At the time, copyright statute stated that if writers were alive on the first day post 28 years after the compositions creation, in this case, 1988 the song would automatically renew for an additional 28 years. So that means on December 28, 2016, Harlan’s half of the song was returned to his heirs.
Here’s where it gets tricky. When Harlan wrote “I Fall To Pieces” the original publisher, Pamper Music had an international sub-publisher for all non-U.S. territories in the world. That publisher was Joy, Ltd. located in the United Kingdom, and was later sold to Warner Chappell. Though I have terminated these rights, I can only claim the US rights. When foreign sub-publishers signed deals, they did deals for the life of the copyright not the term of copyright. That one word, life gives them the rights to claim the song for the duration of the copyright, which is presently life of the author plus 70 years. This translates to Harlan’s life plus an additional 70. Therefore, the foreign rights to “I Fall To Pieces” will not end until 2072.
So what does that entail? It means if I secure a new recording of “I Fall To Pieces,” I get to collect half of the US monies only. I am supposed to notify all other territories that I have secured a cut, and they in return get to collect and keep the monies abroad. It’s the trickle-down theory. They keep half, send the other half here and they keep half yet again. You can imagine when the money is sent to the writer, it’s half of half of half, or pennies.
It seems to me, if the original right terminated, then all arms-length deals should also terminate. I am 100% certain that Harlan Howard did not know his foreign rights would remain with the original publisher. Maybe it was too complicated for him to understand. Perhaps it was a slight of hand in that the original publishers never told writers the truth or, maybe it’s just that songwriters are only concerned with writing songs and don’t possess a business acumen. Regardless, it was news to me that the foreign rights stay with the original publisher.
Furthermore, when Tree bought Pamper Music, they only bought the US rights, not for Canada or the rest of the world. Therefore, when Sony purchased Tree, they could only buy the rights that Tree owned. Sony had publishing entities in all major territories. There is a saving caveat. Foreign rights can be reclaimed eventually. It’s a slow process and different in each territory. Some of the British territories return copyrights 15 - 25 years after the death of the author. Some return them 15-25 years after the last author dies, so if the author’s song is co-written by a 20 year old and a 60 year old, watch out. The heirs of the 60 year old may have to wait until 25 years after the 20 year old dies. It’s all so complicated and for good reason. It’s so the faint of heart will give up and let the publisher keep the royalties. It’s a process generally too expensive, and time consuming for the heirs to figure out.
Thankfully, Harlan married me - a girl with good work ethics who’s smart and tenacious. Here’s to you, Harlan Howard, for leaving me a legacy to protect and promote. Thank you, Babypus!
Respectfully written by Melanie Smith-Howard 11.19.18