On October 19th, the United States Supreme Court affirmed the Fifth Circuit Court of Appeals’ decision concerning the termination rights provisions of the U.S. Copyright Act, but in a most unusual manner. With four Justices taking no part in the proceedings, the Court lacked the quorum necessary to consider BMG Rights Management LLC’s petition for certiorari. Pursuant to 28 U.S.C. §2109, the Fifth Circuit’s judgment was therefore affirmed without consideration of the substantive legal arguments, preserving a potentially significant and favorable precedent for songwriters and other creators, while leaving the broader legal controversy unresolved.
What’s It All About?
Previously known as Vetter v. Resnik, the case resulted from a licensing dispute over the use of one musical composition, first published in 1966, in a single television series episode produced more than twenty years later. While that may sound comparatively small and inconsequential, the case could have enormous implications for the creative industries. Although well-known and despised amongst the multinational entertainment conglomerates, surprisingly few U.S. songwriters with whom I’ve spoken during the past year are even aware of it, or the tremendous impact it could potentially have on their revenues. Having spent more than thirty years of my career working in the music publishing and motion picture industries, the case interests me on several levels. There are heady legal arguments supporting differing interpretations of one particular paragraph of one provision of the Copyright Act (and the attendant policy concerns) that copyright wonks like me enjoy arguing. The case also provides fascinating insight into the global business arrangements and practices upon which publishers and licensees have historically relied, and the structure and dynamics of industry relationships.
More specifically the controversy concerns the effect, if any, on so-called “foreign rights” in a U.S. copyright following the statutory termination of an exclusive copyright grant or license. The case history has been reported extensively elsewhere, but is worth summarizing here briefly.
In 1962 songwriters Cyril Vetter and Donald Smith co-wrote a song entitled “Double Shot (Of My Baby’s Love”), at which time copyright was protectable in the United States for an initial term of twenty-eight years from the date of a work’s publication, as well as an additional twenty-eight years of ‘renewal term’ protection. The two composers transferred their exclusive rights, throughout the world for the full term of copyright protection, including a contingent assignment of all renewal period rights to Windsong Music Publishers Inc. the following year for USD 1.00 and a contractual share of royalties. Windsong published and registered the song with the Copyright Office in 1966. Donald Smith died a few years later, effectively rendering the prior assignment of his renewal rights legally invalid and descending those rights down to his estate. Vetter’s rights, on the other hand, remained vested in Windsong when the copyright came up for renewal registration in 1994, leaving Windsong owning a fifty percent share of the renewal copyright and Smith’s heirs owning the remaining fifty percent renewal share. Vetter purchased the Smith heirs’ share of the work a few years later, and Windsong transferred half of its interest across to Lyresong Music Inc, resulting in a revised 50% (Vetter)/25% (Windsong)/25% (Lyresong) split during the renewal period.
By then the Copyright Act of 1976 was the operative law of the land, introducing new important provisions allowing certain creators, as a matter of right, to subsequently terminate grants and licenses for the ownership and/or use of their works after a given period of time and subject to certain formal procedures. The policy rationale was Congress’ recognition of traditionally unequal bargaining positions between creators and publishers, coupled with the latter’s usually non-negotiable insistence that creators sign away all rights in their works “in perpetuity” before they have ever been commercially exploited and their true value has been proven in the marketplace. Legislators therefore considered it fair and reasonable to extend creators a second, later opportunity to more properly share in the long-term economic rewards of their labor.[1]
Vetter subsequently served statutory notice on Windsong and Lyresong in accordance with those provisions, terminating his prior transfer of all authorship/ownership rights in “Double Shot” with upcoming effect. Although Lyresong relented, Windsong had by then transferred its remaining share of rights to the Resnik Music Group, who effectively ignored Vetter’s termination notice. A dispute arose in 2022, when Disney sought to upgrade an existing synchronization license obtained by ABC for their use of the song in a 1987 episode of the TV show Moonlighting. Although the synch license already authorized the right to broadcast that episode in the United States, Disney was by then seeking to place the series into its global streaming platforms and sought the necessary additional permission from Vetter. Vetter warranted to Disney his full ownership of the work and authority to issue the license, but Resnik intervened maintaining a 25% claim of global rights in and to that license.
Let the Fight Begin!
The following year the Middle District Court of Louisiana granted Vetter’s motion for summary judgment, declaring him the sole owner of the “Double Shot” copyright throughout the world. That decision was upheld on appeal in January 2026 by the United States Court of Appeals for the Fifth Circuit. In reaching its decision, the Fifth Circuit considered but declined to follow earlier federal district court decisions involving the Superman and Jack Ryan copyrights, which had interpreted the statutory provisions as affecting U.S. rights only, leaving foreign rights undisturbed. The Court also distinguished a 1998 Second Circuit decision involving the use of a music composition in the film Sleepless in Seattle, noting that while the court had referred to the recapture of domestic rights, it had not actually considered the geographical scope of copyright termination. The Fifth Circuit therefore concluded that existing case law provided weak support for the traditional interpretation limiting termination to U.S. rights.
For context and by way of example, the Copyright Act specifically provides that derivative works prepared under the authority of a publisher’s grant of rights before termination may continue to be utilized under the term of the grant after its termination. The Supreme Court has already confirmed that music publishers may continue to receive income from such derivative works, including for example sound recordings licensed by them while they were the copyright owners[2], despite contrary argument that such income should flow instead entirely to the creator(s) by virtue of their ownership recapture.
Separately from the jurisprudence concerning derivative works, the particular dispute in this instance concerns so-called foreign rights, i.e., typically the exclusive right to commercially exploit a work outside of the United States. Publishers have likewise historically and customarily considered such rights to be “off the table” and otherwise beyond the purview of the termination provisions. Songwriters with whom I’ve worked on termination notices have been routinely informed by their performing rights organizations that the termination only recaptures U.S. rights, and that royalties received by them from their foreign affiliates will continue to be paid to the original publisher.
The legal argument centers on differing interpretations of Section 304(c)(6)(E) of the Copyright Act, which provides that “termination 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 appellants maintain that copyright protection in foreign territories gives rise to separate rights under each country’s laws, and that those rights therefore fall outside the reach of U.S. statutory termination provisions. The respondents, on the other hand, argue that the original grant was made under U.S. law and encompassed worldwide rights. In their view, the fact that those rights are subsequently exercised and protected under foreign copyright laws does not change the nature of the original grant or place its foreign components beyond the reach of U.S. termination.
The Fifth Circuit adopted the latter interpretation, which is anathema to music publishers who perceive its extension and implementation as a serious and significant disruptive threat to their traditional business infrastructures and existing revenue structures. The financial stakes are considerable. According to the International Confederation of Authors and Composers Societies, global music royalty collections reached €12.6 billion in 2024[3], while the American Society of Authors, Composers and Publishers reported USD 474 million in foreign public performance collections in 2025[4]. Broadcast Music Inc. has likewise reported hundreds of millions of dollars annually in international revenues[5]. While these figures don’t establish how much income might actually be affected by the Vetter decision, they illustrate the substantial international royalty flows underlying the dispute. This is where things get even more interesting.
A Molehill or a Mountain?
Following Resnik’s loss in the Fifth Circuit, his publishing interests were bought out collectively by BMG, Universal, Sony, and Warner for the precise purpose of obtaining standing in the dispute allowing them to seek the Supreme Court’s overturn of the decision. Their petition for certiorari filed in June, along with more than 100 pages of appended materials, makes for interesting reading, due in part to its litany of colorful alarmist rhetoric. The Fifth Circuit decision is derided as “startling”; “head-scratching”; “profoundly wrong”; “anomalous;”, “dramatic”, and a “stark departure;” that “bucks case law”, “flouts statutory text and history”, and casts a “pall of uncertainty” that will “bedevil” the industry and “inflict a tectonic shift on the creative marketplace”.
The publishers’ brief articulated substantive arguments involving statutory interpretation, territoriality, and the stability of existing commercial arrangements in favor of maintaining the status quo. Their policy arguments offered in support of leaving existing foreign rights arrangements alone referenced countless negotiated agreements backed by billions of dollars of investment, and opined that “because making those deals requires figuring out who owns what ex ante, dealmakers simply cannot tolerate prolonged uncertainty about the status of disputed foreign rights.” According to them, Vetter directly undermines international agreements and comity. A cynic might characterize their position in layman’s terms as being more or less ‘because that’s what we were all taught, and because that’s what all the experts say, and that’s the way we’ve always done it, so the Fifth Circuit’s decision should be reversed’.
The publishers predicted that disruption will not be limited to the music industry, and this view is borne out by amici briefs filed by the likes of the National Music Publishers’ Association, the Recording Industry Association of America, the International Federation of the Phonographic Industry, Paramount Pictures, the Motion Picture Association, the International Federation of Film Producers’ Association. All of them can be accessed on SCOTUSblog.com website and worth checking out. Having worked directly on other ground-breaking litigation for two of those organizations in the United States and elsewhere, I’ve witnessed first-hand the challenges of mustering such a posse of like-minded parties and coordinating strategy. The array of aligned interests here is staggering.
On the other side, Vetter’s brief recommending that the Court deny certiorari (thus preserving for now the Fifth Circuit’s decision, and maintaining a smaller yet favorable jurisdiction for music creators) was filed in late September. For their part, they claimed the Fifth Circuit got it right and that Congress fully intended to safeguard authors against unremunerative transfers. They rejected the characterization of some sort of copyright emergency, and note that “publishers are doing just fine and will continue to thrive even if some of them have slightly less bargaining power with which to deprive authors of a fair share when their works become wildly successful”. They further noted that in the streaming era, publishers have shifted their practices towards licensing agreements that return all rights in songs and recordings to authors after ten or twenty years without regard to geography and without any need to invoke statutory termination. They also noted that even if the Supreme Court were to reverse the Fifth Circuit’s decision, BMG et al would simply be left with a shared copyright that they cannot unilaterally control, yet which they claim they must control to facilitate future licensing and preserve the global copyright infrastructure. They finally noted that the Petitioners have not identified any case seeking similar relief in the eight months since the Fifth Circuit’s ruling. The layman’s cynic might summarize their policy arguments along the lines of ‘we’ve heard this doom and gloom end-of-the-world stuff before about the likes of radio, and television, and videocassettes, and the sun isn’t going to fall out of the sky or kill the golden goose, and that the Court should save its powder for a better, more economically meaningful case’. Unlike the petitioners, no amici briefs were filed in support of Vetter’s opposition to certiorari, possibly reflecting a strategic decision more than anything else.[6]
Where Do We Go from Here?
The case provides a revealing example of how the entertainment industries respond to potentially disruptive legal developments. We began with an individual songwriter exercising a statutory right designed to give artists a second opportunity to benefit from their works. The scope of that right, particularly regarding foreign earnings, became the subject of a significant legal dispute. The resulting appellate decision was sufficiently consequential that four major publishers and numerous entertainment industry organizations mobilized to challenge it. Yet too many songwriters aren’t even aware of it!
The Supreme Court’s unusual disposition leaves the Fifth Circuit’s judgment intact, but without resolving the broader legal controversy. Whether other federal courts will follow its reasoning, and how publishers and collecting societies will respond in practice, remains to be seen.
The case also illustrates how the entertainment industries’ practices can become so entrenched that participants begin treating them as though they are the law itself. For decades, foreign rights have been administered on the assumption that U.S. termination does not disturb them.
The Fifth Circuit reached a contrary conclusion and the industry’s response was immediate and substantial. Regardless of right or wrong, the dispute demonstrates the difference between an established commercial convention and a legal entitlement.
Whatever happens next, the case illustrates why songwriters and other creators should understand the scope of rights they’ve granted, the rights they may be entitled to recover, and the financial consequences of doing so. The entertainment conglomerates certainly understand what’s at stake. Creators would do well to understand it too.
[1] Under Section 203, qualifying grants executed on or after January 1, 1978 may generally be terminated during a five-year period beginning 35 years after execution, subject to special rules for publication grants. For earlier grants, Section 304(c) generally provides a five-year termination window beginning 56 years after copyright was originally secured. In either case, the prospect of termination may prompt negotiations for revised terms based on the work’s subsequent commercial success.
[2] Mills Music v. Snyder, 469 U.S. 153 (1985)
[3] CISAC Global Collections Report 2025
[4] ASCAP 2025 Financial Results
[5] BMI 2022 Revenues Announcement
[6] Given that only about 2% of all certiorari applications are accepted anyway, parties opposing the motion will typically lay low rather than signal undue attention to the case by overloading the Court with more paperwork warranting a closer look.
(C) 2026 Frank Rittman
