Prince and the End of Copyright

April, 2016

Many people were shocked to hear about the passing of the musician Prince a short while ago.  Prince received heaps of praise over his career for his innovative music.

Who owns his music?

Along with the quality of his music, there is much mention that throughout his career Prince fought for and maintained ownership over a significant portion of his catalogue of work, especially the master recordings.  It is unusual for large music labels to agree to promote a musician, without substantial bargaining power, who insists on retaining full or significant ownership over the rights in their music.

As Prince has passed, Prince’s music will likely be disposed of in accordance with his estate planning documents, assuming they were in place.  His works may be outright transferred to whomever he specified as beneficiary or they may be subject to the terms of a trust.  Prince was very involved in how his music was used during his lifetime, so it’s very likely he left some stipulations about the use of his music now that he is gone.

How long is his music protected?

Now that Prince is dead, a clock starts to tick on how long his music will be protected by copyright.  Different rights under copyright law are granted different lengths of protection.  In Canada, a general work protected under copyright law is protected for the life of the author plus 50 years; for a “sound recording”, depending on the circumstances, it is protected under copyright law from 50 to 100 years.  Prince is certain to have some work that is protected under the general category and some work that is considered “sound recordings”.

The World’s Differing Terms of Copyright Protection

Since the Berne Convention was adopted in many countries around the beginning of the 20th century, signatories agreed generally that the term of copyright would be at least the life of the author plus 50 years.  However the Convention set a floor for copyright protection but did not restrict countries from enacting longer terms of protection.

Canadian law generally grants copyright protection for the life of the author plus 50 years.  In the United States and Germany, it is the life of the author plus 70 years.  It appears to be life plus 95 years in Jamaica and life plus 100 years in Mexico.

So, for Prince’s works, whoever owns them will be able to derive a benefit from them, protected by copyright law, for at least 50 years in most markets and for at least 70 years in many markets.

(The increasing term of copyright protection is a topic of contentious debate; some argue in favour of an author’s ability to exploit their works for increasingly longer periods while others argue that the current terms of protection are far too long.  Mickey Mouse is also to blame here.  Several times before Mickey Mouse was about to come into the public domain, U.S. copyright law extended its length of copyright protection to protect him for a little bit longer.  Other countries, for their own reasons, also elected to extend their term of copyright protection to match the new longer U.S. term.)

What about his unpublished work?

Prince is rumoured to have recorded over 2000 original works that were never published.  What might happen with them?  Whoever Prince has granted the legal rights to those works will have the ability to decide how they are exploited, assuming they are not subject to the terms of a trust.  Further, such a person may also decide to never publish the works that Prince himself decided not to publish.

In any event, the clock will still run on the copyright protection for those unpublished works.  In the past unpublished works could be protected forever under copyright law, so long as they were never published.  Recent changes to the Copyright Act in Canada say that irrespective of whether a musical work is published, copyright protection will generally only apply to that work for 50 years from the author’s death.  Using the detailed calculation in the Copyright Act, some of Prince’s works are certain to fall into the public domain on January 1, 2067.  But it’s not like that in every country.

Conclusion

In copyright protection the only variable is how long you live.  Once your date of death is determined, there is a fixed time period, that differs depending on the work in question and the country, during which copyright protection will persist.  Once that time period expires, the works will fall into the public domain.  In Canada, based on our current law, many of Prince’s works will likely be protected for another 50 years – that is, assuming another animated variable doesn’t raise his head to influence our law as he has the law of our neighbour to the south.

*     *     *     *     *

Ryan K. Smith is a Lawyer and Trade-mark Agent at Feltmate Delibato Heagle LLP.  He is a corporate and commercial lawyer with expertise in all manner of intellectual property matters including trade-marks, copyrights, domain names, and confidential information.  You can reach Mr. Smith at (905) 287-2215 and rsmith@fdhlawyers.com.