Double Shot Brings Songwriters a Double Win – Music Technology Policy

Songwriters have a reason to celebrate the Supreme Court’s October 19 disposition of BMG Rights Management (US) LLC, et al v. Vetter, the case involving the 1960s hit “Double Shot (Of My Baby’s Love).” But the celebration should not be about a songwriter winning by default because four Supreme Court justices couldn’t participate. (Although the case is styled as BMG Rights Management, the parties appealing to SCOTUS were BMG Rights Management (US) LLC; Capitol CMG, Inc.; Essential Music Publishing LLC; And Warner-Tamerlane Publishing Corp. as we will see below.)

There was nothing “default” about the songwriter’s victory.

In case you didn’t follow the case, Cyril Vetter won on the merits in federal district court in his Louisiana where the case arose. He won again on the merits in the United States Court of Appeals for the Fifth Circuit. Then the major music publishers stepped in, purchased the losing defendant’s interest, and attempted to overturn those decisions before the U.S. Supreme Court. Yes, that’s right. They bought themselves an appeal, or tried to.

It didn’t work.

The Supreme Court lacked the required quorum because four justices did not participate. Under 28 U.S.C. § 2109, the Court affirmed the Fifth Circuit’s judgment without reaching the merits or ruling on whether to grant an appeal. The rule is rarely used, but the general thinking is that because BMG’s book publishing affiliate has book deals with the four justices who recused, at least according to Amazon.

The result is that songwriters retain two carefully reasoned federal court decisions supporting worldwide recapture of copyright rights under statutory termination. That’s a double win worth remembering.

Half the Apple

The underlying legal question is enormously important to songwriters. When Congress created statutory termination rights under the Copyright Act, it gave authors (including songwriters) an opportunity to recover copyrights they had transferred years earlier, frequently before anyone understood the commercial value of their works.

But music publishers have long maintained that termination of a worldwide publishing grant under American copyright law returns only U.S. rights allowing them to retain the rest of the world forever. Under that interpretation, a songwriter who assigned worldwide rights could terminate the grant but recover only the United States portion. The publisher would retain the rest of the world.

The Fifth Circuit rejected that interpretation in Vetter v. Resnik, holding that termination under § 304(c), as applied to the worldwide grant before it, recaptured worldwide rights.

The court examined the statutory language, congressional purpose, relevant decisions, and the distinction between copyright ownership and infringement occurring in foreign territories.

The Artist Rights Institute, together with fellow songwriter advocates, participated as friends of the court (“amici curiae”) supporting the songwriter position. The Fifth Circuit expressly quoted ARI’s argument:

“Denying terminating authors the full return of a worldwide grant leaves them with only half of the apple—the opposite of congressional intent.”

That quotation captures the problem.

Congress enacted termination rights to give authors a meaningful second opportunity to benefit from the value of their creations. It is difficult to reconcile that remedial purpose with a construction that leaves a substantial part of the original grant permanently in the publisher’s hands.

The Fifth Circuit also recognized an important commercial reality: music publishers routinely negotiate worldwide contractual reversions and administer those reversions. Publishing agreements often contain negotiated reversion provisions operating after periods considerably shorter than the 35 years required for statutory termination. The industry knows how to handle worldwide reversions. It does not need to invent an entirely new system to administer them.

Contractual reversion practices do not decide the meaning of the statutory termination right in § 304(c), but they undermine publisher claims that worldwide statutory recapture would be commercially unmanageable.

And the Fifth Circuit’s reasoning now provides songwriters with substantial judicial authority for challenging the publishers’ US-only position in future.

The Publishers’ Self-Inflicted SCOTUS Problem

After losing in the Fifth Circuit, the original defendants, Robert Resnik and Resnik Music Group, had the right to seek Supreme Court review of the Fifth Circuit’s decision. You may be asking—wait, I thought BMG appealed? And you’d be right to ask that question. Although all music publishers were theoretically affected by the ruling, only Resnik was in the case.

The major music publishers could have supported that SCOTUS effort financially, provided experienced Supreme Court counsel, and filed amicus briefs defending their preferred interpretation of the Copyright Act.

Instead, BMG and publishing companies affiliated with Sony, Universal, and Warner purchased the disputed copyright interest and substituted themselves into the litigation. In other words, they deliberately constructed an industry-sponsored vehicle to challenge the songwriter victory. They essentially bought the lawsuit.

That decision turned out to have an extraordinary consequence.

BMG is owned by Bertelsmann, which also owns Penguin Random House. Four Supreme Court justices—Sotomayor, Gorsuch, Barrett, and Jackson—have published books through Penguin Random House. According to Amazon. See where this is headed?

All four declined to participate in the publishers’ petition, leaving the Supreme Court without the six justices necessary for a quorum to hear the request for an appeal .(Supreme Court appeals have to be granted by the Court and are not automatic except for disputes between states.)

The Court did not disclose the reasons for the individual recusals, so their precise grounds should not be treated as established. But the corporate relationship was public, and a book publisher-related recusal problem had already arisen in another recent Supreme Court proceeding (Baker v. Coates).

It is fair to ask why the publishers needed to acquire the copyright interest themselves, and whether the potential consequences of including BMG were evaluated before doing so. We don’t know what counsel considered, and there is no basis for concluding that anyone failed to conduct an appropriate conflicts review. Nor do we know what would have happened had Resnik remained the petitioner. The Supreme Court might have granted certiorari, denied review, or decided the merits. There is no guarantee that an alternative arrangement would have produced a different outcome.

But one thing is certain: the publishers chose to change the parties rather than merely support the existing defendant. They cannot treat the consequences of that choice as though they were simply passive observers of an unfortunate procedural disaster.

The publishers wanted their own Supreme Court vehicle for appeal. The vehicle they got couldn’t leave the garage.

What the Supreme Court Did—and Didn’t—Decide

It is important not to exaggerate the Supreme Court’s action. The justices did not decide that the Fifth Circuit’s interpretation of the Copyright Act was correct. Nor did the statutory affirmance create nationwide Supreme Court precedent on worldwide termination.

The Fifth Circuit’s published decision remains binding appellate authority within that circuit of Louisiana, Mississippi and Texas. Courts elsewhere can consider its reasoning but are not required to follow it. Even so, that distinction is important.

It would be equally misleading to suggest that the Supreme Court’s inability to reach the merits somehow diminishes the two victories that preceded it. Remember, the reason there was an appeal is because the songwriter won. Twice.

The district court considered the parties’ arguments and ruled for Vetter. The Fifth Circuit independently reviewed the issues and affirmed. The publishers sought to overturn those decisions. They failed. And the result is that the appellate reasoning remains intact.

The Publishers’ Next Problem

The music publishing industry now faces a potentially more consequential decision than whether to pursue another Supreme Court appeal. It must decide how to administer statutory terminations in light of Vetter.

The publishers can continue insisting that termination returns only American rights. They can challenge songwriter claims in other federal jurisdictions and seek appellate decisions supporting their existing interpretation.

But that strategy carries risks.

If another federal appellate court adopts the Fifth Circuit’s reasoning, songwriters will have additional favorable authority, making the publishers’ traditional position increasingly difficult to defend. If another circuit instead rules for the publishers, the resulting circuit split would significantly increase the likelihood of Supreme Court review. That could eventually produce the nationwide ruling the publishers sought in Vetter. It could also produce a nationwide ruling against them. Neither possibility is risk-free.

And future litigation would take place against a different legal background than existed before January 2026. The publishers can no longer suggest that worldwide statutory recapture is merely a novel theory advanced by songwriter advocates. A contemporary federal court of appeals has now adopted that interpretation in a published opinion addressing the statutory language, legislative purpose, industry practice, and contrary legal authorities.

The Fifth Circuit even declined to follow earlier district court decisions supporting territorial limitations and challenged the reasoning of influential copyright treatises. That is not an insignificant development.

Could Vetter Change Industry Practice?

Perhaps the most interesting consequence of Vetter is that another Supreme Court decision may not be necessary to change industry behavior. Music publishers make commercial judgments every day about litigation risk, catalog administration, songwriter relationships, and the cost of enforcing disputed contractual positions. Statutory termination is no different. An industry practice that once appeared reasonably secure becomes less attractive when a federal appellate court has rejected its legal foundation.

The question is not whether publishers must immediately concede worldwide rights in every termination dispute. That is unlikely to happen. The statutory provisions, contractual history, and particular rights involved will still drive that train.

The question is whether maintaining a categorical domestic-only position makes commercial sense when doing so may require another lawsuit with potentially far-reaching consequences and extend a federal appeals court ruling directly on point.

The industry already administers worldwide contractual reversions. There are practical mechanisms for doing the same when statutory termination supports a worldwide result.

Recognizing that possibility would not require abandoning publishing relationships or disrupting every existing agreement. It would require acknowledging that songwriters have a serious legal claim to the worldwide rights they originally granted.

And after Vetter, that claim is backed by published appellate authority. The irony is that the publishers’ extraordinary effort to overturn the Fifth Circuit may ultimately encourage the very change in industry practice they were trying to avoid.

A Double Win for Songwriters

The Supreme Court proceeding was unusual, but it should not distract from the underlying achievement. Cyril Vetter established his position in the district court, defended it successfully in the Fifth Circuit, and emerged from the publishers’ Supreme Court challenge with both victories undisturbed.

Songwriters now have something they did not have before: a published federal appellate decision explaining why termination of a worldwide copyright grant can return worldwide rights to the author.

True, it is not binding nationwide. True, it does not guarantee victory in every future case. And it’s true that the Supreme Court may eventually address the question on the merits. All that is true.

But it is real law, supported by substantial judicial reasoning, and it changes the legal and commercial conversation. The publishers (and other transferees, by the way) have a choice. They can continue litigating in search of a different answer, or they can consider whether the time has come to bring statutory termination practices into closer alignment with the worldwide reversions they already administer by contract.

In the meantime, songwriters have gained something immensely valuable: legal authority they can point to across the negotiating table.

And the next time a publisher tells a songwriter that statutory termination only gives back half the apple, any songwriter warrior (not mentioning any names) can simply ask:

“I’ve got a Vetter. Do you have one of those?”