A federal court has given songwriters a notable victory, ruling that they can reclaim their copyright not just in the United States, but worldwide.
The January 12 decision by the U.S. Court of Appeals for the Fifth Circuit (Cyril E. Vetter; Vetter Communications Corporation vs. Robert Resnick; Resnick Music Group) affirmed a District Court decision involved the famous frat rock song “Double Shot (Of My Baby’s Love).”
Double Shot was written by Carl Vetter and Donald Smith. Vetter and Smith transferred 100% of their copyright interests in the song to Windsong Music Publishers, Inc. in 1963, and Windsong registered Double Shot with the Copyright Office in 1966.
Under the Copyright Act of 1909, Windsong got copyright protection for an initial 28 years with a possible renewal term of an additional 28 years, provided Smith and Vetter survived this initial 28‑year period. Sadly, Smith died in a plane crash and his heirs, not Windsong, obtained the renewal rights.
Vetter bought the renewal rights from Smith’s heirs, at which point Vetter and Windsong each owned 50% of Double Shot. Windsong subsequently sold one‑half of its 50% interest in Double Shot to Lyresong Music, Inc.
In March of 2019, Vetter served copyright termination notice upon Windsong and Lyresong as of May 3, 2022. This enabled Vetter to terminate his pre‑1978 transfer and reclaim the copyright to Double Shot for the extended renewal term.
Windsong was sold to Resnick Music Group in August of 2019.
In 2022, the ABC Network requested an expanded license to use Double Shot in a television episode that had previously aired. ABC sought worldwide digital broadcast and on‑demand streaming rights.
Vetter gave ABC a quote, claiming he had sole and exclusive rights to Double Shot throughout the world. Resnick disagreed, alleging Vetter’s copyright termination was limited to the United States.
Vetter sued Resnick in the Federal Court for the Middle District of Louisiana. The District Court sided with Vetter, concluding that copyright termination under Section 304(c) of the Copyright Act (which applies to grants of copyright before January 1, 1978) restored rights globally.
The District Court also ruled that the renewal provisions in the Copyright Act are not restricted to United States interests, meaning they were also effective on a global basis. When Resnick appealed, the Fifth Circuit affirmed the District Court’s rulings on both termination and renewal of rights.
This Fifth Circuit decision by a three‑judge panel is inconsistent with both prior case law and long‑standing music business industry convention.
In that regard, both the District Court and the Fifth Circuit cited Nimmer on Copyright, by Prof. David Nimmer, regarded as the leading treatise on U.S. copyright law, which states: “A grant of copyright throughout the world is terminable only with respect to uses within the United States. Because copyright law has no extraterritorial operation, American law arguably is precluded from causing the termination of rights based on foreign copyright laws.” However, the District Court and the Fifth Circuit flatly rejected Prof. Nimmer’s conclusion.
Songwriter groups are understandably lauding this ruling, which Vetter’s lawyers deemed “an unequivocal win for creator rights.”
But such celebrations are premature, at best. The Fifth Circuit decision was rendered by a three‑judge panel and can be appealed, initially to the entire Fifth Circuit and ultimately to the U.S. Supreme Court.
Appropriately, the Fifth Circuit cited Section 304(c)(6)(E) of the Copyright Act, which provides that “[t]ermination of a grant under this subsection affects only those rights covered by the grant that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws.”
The Fifth Circuit nonetheless concluded that since termination rights “arise under” the Copyright Act, Section 304(c)(6)(E) dictated that Vetter’s termination would be effective as to all of his rights, including his copyright to the extent it extended internationally. The Fifth Circuit distinguished its conclusion from prior federal cases that ruled to the contrary.
This novel interpretation of termination rights by the Fifth Circuit is directly at odds with the long‑established music industry custom and practice that foreign rights can be continued to be exploited even after the original grantor has exercised its termination rights.
The National Music Publishers’ Association and the Recording Industry Association of America filed a legal brief in this case, sounding the alarm that global reclamation of copyright would undermine the ability of publishers and labels “to control how their works are exploited around the world.”
Accordingly, it seems likely this decision will be appealed. The Fifth Circuit’s holding of a double shot of domestic and international termination rights may well be a short‑lived anomaly in copyright law. Stay tuned!
By Michael R. Morris