A court ruling by a US federal judge in Louisiana has thrown a wrench into the common understanding of how copyrights on catalog music work – one that could have implications for music publishers and songwriters.
At issue are “termination rights.” Under the US’s Copyright Act of 1976, the original author(s) of a song can “take back” their copyright from a publisher (or whoever they assigned the rights to) after a set period of time. For works written in 1978 or later, that term is 35 years. For works from before 1978, it’s 56 years.
Until now, it was generally understood that when an author exercises their termination right under US law, this applies only to US rights – international rights remain with the assignee (i.e., the publisher who bought the rights).
However, a recent ruling by the US District Court for the Middle District of Louisiana upended this: The court concluded that a termination under US law applies globally – or, at least, in all the countries that participate in the Berne Convention, the international treaty that requires signatory countries to recognize copyrights created in other signatory countries.
The case involved a dispute over who owns the song Double Shot (Of My Baby’s Love), written in 1962 by Don Smith and Cyril Vetter. The song was first recorded in 1963 by Dick Holler And The Holidays, but it became a Top 40 hit in 1966 when it was recorded by the Swingin’ Medallions.
According to court documents, Smith and Vetter sold the rights to the song in 1963 to Windsong Music Publishers for one dollar. Windsong took out a copyright on the song in 1966.
In 1994, the song’s copyright came up for renewal. Per the original agreement, Vetter’s copyright was extended for another 28 years under the pre-1976 copyright law. But Smith died in 1972, and legal precedent held that if the original rights owner died, the rights reverted to the author’s heirs. Smith’s heirs took back their share of the copyright, and sold it to Vetter.
In 2019, Windsong sold its rights in the song to Resnik Music Group.
In 2022 – 56 years after the copyright was originally taken out – Vetter notified Resnik that he was exercising his termination rights and taking full control of the song.
That year, Vetter was contacted by ABC TV, which wanted digital sync licensing rights for the song, as it appeared in a 1987 episode of Moonlighting that ABC wanted to release digitally. ABC told Vetter that Resnik Music Group claimed one-quarter ownership of the copyright, as it still held international rights to it.
Vetter went to court, asking the judge to declare that he is the owner of all the rights to the song, not just US rights. In essence, Vetter’s lawyers argued – and Judge Shelly Dick agreed – that the Berne Convention on copyrights doesn’t create new copyrights for a song in every country outside the US, but rather that these countries recognize the validity of the US copyright on their own territory.
Therefore, if US law recognizes an author’s termination rights, other countries are bound to do the same.
“The result would be chaos, with copyright in each work dependent on its country of origin, rather than the orderly system that the nations of the world have in fact developed over more than a century, in which the applicable law is the law of the place ‘where protection is claimed.’”
Resnik Music Group, in a court filing
Vetter’s lawyers conceded that this was a “novel theory” about how copyright works, but that it is, in fact, the correct one under international law.
Judge Dick’s final ruling, issued on Wednesday (January 29), can be read here. The judge’s reasoning is fully laid out in a denial of Resnik’s motion to dismiss the case in July 2024, which can be read here.
In arguing for a dismissal of the case, Resnik’s lawyers warned that if the court ruled in Vetter’s favor, “the result would be chaos, with copyright in each work dependent on its country of origin, rather than the orderly system that the nations of the world have in fact developed over more than a century, in which the applicable law is the law of the place ‘where protection is claimed.’
“The Berne Convention states in so many words that Berne member nations ‘grant’ such exclusive protection [top works copyrighted in other countries] under ‘their respective laws’,” Resnik’s lawyers stated in a court filing.
Some copyright law experts predicted the ruling will be overturned.
“On the merits, while the plaintiffs’ arguments are clever, it’s unlikely they’ll ultimately hold up,” copyright lawyer Aaron Moss wrote on his blog, Copyright Lately.
“It’s true that courts… look to the law of the country of origin to determine copyright ownership – that is, initial copyright ownership. However, the issue in the Vetter case is more properly seen as a question about the law applicable to the scope of a copyright assignment…
“Because copyright is territorial, the US copyright may be recaptured via statutory termination, leaving foreign copyrights governed by the law of each country in which protection is claimed.”
Added Moss: “Vetter’s notion that ‘there is only one copyright, afforded in the work’s country of origin and then recognized by the international community pursuant to treaty obligations’ isn’t really accurate. Treaties are designed to harmonize national copyright laws, not to create them.”
According to Billboard, the judge’s ruling is likely to be appealed, given that Resnik’s lawyers had already attempted to appeal at an earlier point in the case.Music Business Worldwide