Four major music companies bought into a disputed copyright, hired a Supreme Court heavyweight, and filed a cert petition arguing that the Fifth Circuit sent U.S. termination rights on an unauthorized world tour. Now comes the hard part: getting four Justices to order another round.
Cyril Vetter’s own lawyers saw this coming. Weeks before the Fifth Circuit ruled in the songwriter’s favor this past January—handing him the worldwide rights to his 1962 frat-rock anthem “Double Shot (Of My Baby’s Love)“—Tim Kappel and Loren Wells had already written in a December law review commentary that the cross-border question at the heart of the case “will need to reach the Supreme Court to be truly settled.” Last week, the major music publishers obliged—filing a cert petition to overturn the ruling Vetter had just won. Getting the Justices to actually bite, though, is the taller order.
Regular readers know how I feel about this one. I’ve handed Vetter v. Resnik the top spot on my worst-copyright-decisions list two years running, and the Fifth Circuit made things even worse: it held that two distinctly American mechanisms—copyright termination and the 1909 Act’s renewal right—reach not just an author’s U.S. rights but his rights everywhere on the planet. I laid out why that misreads the statute and ignores how international copyright actually works back in January, so I won’t relitigate all of it here.
In the months since, the case has picked up a new name—BMG Rights Management v. Vetter—and some very expensive new lawyers. Here’s what the petition argues, and whether it’s likely to pay off.
Buying a Dispute
The case drew a crowd of amici at the Fifth Circuit, divided along predictable lines. The MPA, RIAA, and NMPA warned that worldwide recapture would upend a half-century of settled practice; on the other side, a long bench of creator organizations—from SAG-AFTRA and the Authors Guild to the Romance Writers of America—lined up behind Vetter.
But after the panel affirmed, the original defendant, Robert Resnik, showed no appetite to keep fighting—no petition for rehearing en banc, no cert petition of his own. So in March, the publishing arms of Sony, Universal, and Warner—joined by BMG—did the one thing that would let them carry the fight forward themselves: they bought Resnik out and moved to substitute in as defendants, candidly telling the court they’d made the acquisition “for purposes of filing a petition for a writ of certiorari.” The district court approved the swap on March 31.
The parties then lawyered up for the fight ahead. The music companies brought in Paul Clement—a former U.S. Solicitor General under George W. Bush, once a name on Donald Trump’s Supreme Court shortlist, and, at more than 125 arguments and counting, the most prolific advocate at the Court’s lectern today. Clement’s team filed its cert petition on June 11, and the Court docketed it last week.
On the other side, Vetter has brought in his own heavyweight: Orrick’s Josh Rosenkranz, who beat Clement in Cox Communications v. Sony Music this past March—a 9-0 reversal that gutted the labels’ billion-dollar contributory-infringement theory. If the Court grants review, it’ll be a rematch—Clement again for the music industry, Rosenkranz again against it, and Rosenkranz coming off the win. And the irony runs deeper: Rosenkranz was the winning advocate in Kirtsaeng v. John Wiley & Sons, the 2013 decision holding that “lawfully made under this title” carries no geographic limit—reasoning the Fifth Circuit panel in Vetter stretched to conclude that “arise under this title” carries none either. Clement will tell the Justices the panel mangled Kirtsaeng; Rosenkranz will tell them it read his case just right.
The Publishers’ Pitch
The petition’s core merits pitch is a familiar one. The Copyright Act’s termination provisions say that termination “in no way affects rights arising under any other Federal, State, or foreign laws.” For roughly fifty years, virtually everyone—the treatises, the courts, and the entertainment industry as a whole—read that to mean termination recaptures U.S. rights, and U.S. rights only. The Fifth Circuit is the first appeals court to say otherwise.
To get there, the panel had to adopt a particular picture of copyright: that a work has a single copyright, born in its country of origin and merely “recognized” elsewhere under the Berne Convention. On that view, the foreign rights in a U.S. song aren’t independent interests created by foreign law—they’re extensions of one American copyright. And if there’s only one copyright, terminating the U.S. grant pulls all of it back home, wherever in the world it reaches.
Push that logic one step further, though—the move I kept coming back to in January, and one the petition now makes well—and it turns on some of the very songwriters it’s supposed to reward. If a work’s copyright truly arises only in its country of origin, then foreign works never acquire independent U.S. copyrights at all, which means foreign authors never have distinct U.S. rights to reclaim. The U.S.-rights-only understanding everyone is now fighting about is the very thing that has let real foreign songwriters use the American termination right in the first place.
Take Paul McCartney. “Yesterday” and “Hey Jude” are U.K. works, and the U.K. doesn’t have a U.S.-style termination right. Yet McCartney has long been understood to hold distinct U.S. rights he could recapture—which is exactly what he set out to do in a 2017 suit against Sony/ATV. A rule pitched as a windfall for songwriters would, carried to its conclusion, have left the most famous songwriter of all with nothing to reclaim.
Beyond the merits, the petition makes the practical pitch that the Fifth Circuit’s ruling has already begun to sow confusion, throwing the validity of countless decades-old author-publisher agreements into doubt. It’s also why waiting won’t help: rather than letting the question “percolate” in the lower courts the way the Court usually prefers, the outlier gives every U.S. author an incentive to steer future cases into the Fifth Circuit. Until the Court steps in, the petition warns, uncertainty and chaos will shadow every author-publisher deal—and strain the international comity that copyright law depends on.
So Will the Court Take the Case?
Predicting cert grants is a fool’s errand, but the odds here are worth walking through.
The Court grants only about 4% of paid cert petitions, and the most common thing that lifts a petition above that line is a circuit split—which is exactly what this case lacks. The publishers cite the Second Circuit’s 1998 Fred Ahlert Music Corp. v. Warner/Chappell decision, but there the foreign-rights point was common ground rather than the holding, and the remaining contrary authority is district-court rulings like Siegel v. Warner Bros. Entertainment and Clancy v. Jack Ryan Enterprises. That makes this less a mature circuit split than a lone outlier, which is why the petition leans so hard on the idea that the issue can’t safely percolate rather than pressing a conflict the clerks would see through. The unanimous panel doesn’t help the publishers either, as there’s no dissent waving a flag for review. On the splits-obsessed math that usually drives cert, all of that is a real drag.
But this petition has a number of the other factors that beat the base rate. It features elite Supreme Court specialists on both sides—Clement for the publishers, Rosenkranz for Vetter—which the data treats as a strong signal that a case is genuinely cert-worthy. It presents a clean question of statutory interpretation with economy-wide stakes, squarely in the Court’s wheelhouse. And amicus support is all but guaranteed; the industry that just spent millions to manufacture this vehicle isn’t going to leave it sitting in the driveway, and a question that already pulled briefs from every corner of the creative economy will pull them again at the cert stage. Cert-stage amicus briefs, as it happens, are among the better predictors of a grant.
There’s also a wildcard worth watching. Because the dispute is steeped in treaty and foreign-relations stakes, the Court may not rule on the petition cold. It could first ask the federal government to weigh in through a CVSG, or “call for the views of the Solicitor General.” The Court issues only about a dozen a term, reaching for them most readily when the government has a clear stake in the answer—as it plainly does here. A CVSG is also one of the strongest grant signals there is: historically, it lifts a paid petition’s odds from the low single digits to better than 40%. Think of it as the Court’s way of saying we’re not not interested.
So where does that leave us? On a splits-only scorecard, “Double Shot” is a long shot. But it’s a long shot with marquee counsel, a clean question, guaranteed amici, and enormous stakes—and given how directly it touches U.S. treaty commitments, a CVSG wouldn’t be surprising. Add in that the Fifth Circuit’s reasoning is, in my view, badly wrong and genuinely destabilizing, and this strikes me as a case the Court should take. Whether it will is a closer call.
It takes four votes to grant cert. The majors are betting at least that many will take the shot.
As always, let me know what you think in the comments below or @copyrightlately on social media. And here’s a copy of the publishers’ cert petition—no chaser.
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