Five new amicus briefs urge the Supreme Court to undo the Fifth Circuit’s worldwide-reversion rule, warning it would sow international chaos while quietly stripping foreign creators of the very rights it claims to expand.
The Supreme Court justices are on summer recess, but a stack of copyright briefs will be waiting for them when they get back. On Thursday, five separate amicus briefs landed in support of certiorari in BMG Rights Management v. Vetter, the Fifth Circuit headscratcher holding that a U.S. work carries a single copyright that “extends internationally.” BMG, joined by the major labels’ publishing arms, petitioned for cert in June, after buying out the defendant’s copyright interest in “Double Shot (Of My Baby’s Love),” the song at the center of the case known below as Vetter v. Resnik. They’re asking the Court to overturn a ruling that lets creators invoke American law to recapture rights not just here, but all over the globe. The amici turned out to explain in concrete terms what happens if that ruling stands.
The RIAA, the National Music Publishers’ Association, and A2IM, which between them speak for most of the American music business, filed jointly. The international federations (IFPI, ICMP, FIAPF, and the International Video Federation) wrote to stress that this is the world’s problem, not just America’s. The Motion Picture Association weighed in on behalf of the major studios and streamers, and twenty IP law professors, including Mark Lemley, Pamela Samuelson, and Rebecca Tushnet, signed a brief led by Santa Clara’s Tyler Ochoa, who wrote his own volcanic takedown of the decision earlier this year.
I’ve made no secret of my own view that the Fifth Circuit got it backwards. So I was pleasantly surprised to see the music industry groups cite a couple of Copyright Lately articles in their brief. They were sorted, with what I’ll assume was great reluctance, not among the “Scholarly Authorities” but under “Other Authorities.” It’s the brief’s version of the kids’ table, but I’ll take it.
Paramount, while writing that it “fully endorsed” the MPA’s brief, filed separately to showcase the real-world fallout of a holding it warns would replace “prior certainty in every corner of the industry” with “a world of confusion,” or, as its lawyers put it, “the legal version of a post-apocalyptic film.” The brief reads like a guided tour of the studio vault, with termination war stories featuring The Godfather, Mission: Impossible, Rosemary’s Baby, and Fatal Attraction. Paramount recounts how it rescued the script for Forrest Gump from another studio’s discard pile and turned it into a Best Picture winner; years later, it used the foreign rights it still held to license a Bollywood remake, Laal Singh Chaddha, which opened in India in August 2022. One month later, author Winston Groom’s termination of the U.S. copyright took effect. Paramount points out that under the Fifth Circuit’s rule, that timing was pure luck. Shift the calendar a few months and Groom could have claimed the remake was unauthorized, with a U.S. court and an Indian court left to reach potentially opposite answers about who owns Forrest Gump in Mumbai.
The cross-border tangle is only half the problem. As several of the briefs observe, a ruling that looks like a win for American authors quietly cuts foreign ones off at the knees. The Fifth Circuit reasoned that Vetter could terminate worldwide because his rights “arise under” U.S. law. But run that same logic on a foreign author like Italian composer Ennio Morricone, and the whole thing boomerangs. Under the Fifth Circuit’s theory, Morricone’s U.S. rights don’t “arise under” U.S. law at all. They arise under Italian law, and the termination statute expressly does not reach rights “arising under any … foreign laws.” So the same reasoning that lets Cyril Vetter reclaim his song worldwide would have meant Morricone never had a U.S. termination right to begin with. The Second Circuit has already said otherwise.
Another example from Paramount’s vault is John le Carré. When the British spy novelist terminated his grant in The Spy Who Came In From the Cold in 2017, the studio conveyed the foreign rights it still held to Ink Factory, the London production company run by le Carré’s sons. Under the Fifth Circuit’s logic, le Carré’s British roots might have muddied or erased his U.S. termination rights altogether. A rule sold as pro-creator, then, turns out to mean pro-American-creator, and it puts the United States directly at odds with the Berne Convention’s promise to treat foreign authors no worse than its own.
The Mumbai standoff Paramount imagined isn’t purely hypothetical. As the law professors point out, a German court has already refused to give a U.S. termination any effect inside its borders in a fight over The Three Investigators, the American kids’ series that somehow became a national institution in Germany as Die Drei ???. Foreign courts apply their own law, and they have little reason to defer to an American court’s pronouncement that rights on their turf have changed hands. And there will be no shortage of opportunities for the same fight to break out over and over again. A recent study headed by Duke’s Christopher Buccafusco counted 13,565 termination notices covering more than 100,000 titles between 1978 and 2021. Under the Fifth Circuit’s rule, every one of them is a cross-border tug-of-war waiting to happen.
The MPA’s brief picks up one more thread the others mostly ignore: BMG v. Vetter isn’t only a termination case, but a renewal case too. Because “Double Shot” co-writer Donald Smith died before the song’s renewal term vested, his share passed to his heirs under Stewart v. Abend, and the Fifth Circuit held that this reversion, too, swept up the whole world’s rights. But the renewal term is a wrinkle of the 1909 Act’s two-term structure, which the U.S. clung to long after the rest of the world had moved on. It’s hard to see how a mechanism found only in American copyright could reclaim rights in countries that never ran on a renewal model to begin with.
For all the problems the briefs identify, the Fifth Circuit’s opinion does have an enthusiastic constituency—it just wasn’t among Thursday’s filers. SAG-AFTRA, the Authors Guild, the Music Artists Coalition, Songwriters of North America, the Black Music Action Coalition, and a dozen other artist, author, and performer groups all lined up behind Cyril Vetter’s worldwide recapture in the court below, and none has joined the chorus of labels, studios, and scholars now asking the Supreme Court to take another look. That’s no great surprise, since they like the ruling. But even Vetter’s own lawyer has acknowledged that the cross-border question at the heart of the case “will need to reach the Supreme Court to be truly settled.” If the Court grants review, the artist groups will no doubt be back for the merits round, renewing their argument that the decision is a long-overdue win for the little guy: the songwriter who signed her work away for pocket change gets to take it back once it finally hits. Not just here, but everywhere.
Except “everywhere” is where the trouble starts. The worldwide right those groups are celebrating is one that many of the world’s courts will refuse to honor, and the logic behind it would deny foreign songwriters any U.S. termination right at all. Whether that adds up to a win for the little guy depends on which little guy you ask, and on which side of the border he’s standing. This is a call for the Supreme Court to make, not a single circuit. So when the Justices return from recess, hopefully this case will be sitting near the top of the pile.
As always, let me know what you think in the comments below or @copyrightlately on social media. All authorities welcome, scholarly or otherwise.
The post Studios, Labels and Scholars Say the Fifth Circuit Botched Vetter appeared first on Copyright Lately.