The majors and BMG have told the US Supreme Court that it should not let “one Fifth Circuit decision radically disrupt copyright worldwide”, as they push the justices to overturn a ruling won by songwriter Cyril Vetter.
That January 12 ruling held that termination under US law returns an author’s rights across the world, and not only in the United States.
The line appears in a reply brief filed on Wednesday (September 30) by petitioners Capitol CMG (Universal), Essential Music Publishing (Sony), Warner-Tamerlane Publishing (Warner), and BMG Rights Management.
It answers Vetter’s brief in opposition, filed on September 14, which argued that the question should be left to work through other appeals courts first.
The case has been distributed for the justices’ private conference on October 16, according to the Supreme Court’s docket.
“Unable to deny that the decision below departs from both statutory text and decades of settled law and uniform understanding, Vetter devotes pages to emphasizing the absence of a circuit split,” the publishers’ brief states. “But that does not mean there is no meaningful split of authority here.”
The brief adds that Vetter‘s “‘breathless[]’ calls for ‘further percolation’ ring hollow”.
The publishers say the industry is “actively negotiating deals running through 2072“, and that Vetter concedes foreign rights “represent a significant factor in those negotiations”. The page of Vetter’s brief they cite quoted the publishers’ own petition, which said foreign rights “often represent a significant portion of a license’s value”, in arguing that authors lose out if termination excludes them.
“Without the ability to determine ex ante who owns what, getting those deals done becomes exponentially harder,” the reply states. “And if the Court were to accept Vetter‘s invitation to wait years before weighing in, each and every deal hence would have to price in the risk that the foundation may still shift yet again.”
Vetter‘s brief had argued that publishers “are doing just fine” and could “afford to negotiate” with more artists.
The reply counters that “it is not just publishers whose oxen are gored”, pointing to amicus briefs filed by Paramount Pictures, the IFPI, and the Motion Picture Association.
“In an environment where potential licensees and investors are not sure whether they are getting a durable worldwide license or signing themselves up for foreign infringement litigation, the short-term cost is that any licensing deal becomes more expensive, and some will run aground entirely,” the brief states. “The medium-term cost will be a pyrrhic victory for Vetter.
“And the long-term cost will fall to society as a whole, in the form of creative works not created…”
“In an environment where potential licensees and investors are not sure whether they are getting a durable worldwide license or signing themselves up for foreign infringement litigation, the short-term cost is that any licensing deal becomes more expensive, and some will run aground entirely. The medium-term cost will be a pyrrhic victory for Vetter.”
Reply brief filed by music publishers
Vetter‘s brief had also called the case an “unsuitable vehicle”, because the publishers did not challenge a separate part of the Fifth Circuit‘s ruling.
That holding covers the half of the song’s copyright that Vetter bought from the heirs of co-writer Donald Smith. His lawyers argued it would let him veto any foreign licensing, even if the publishers won.
The reply says that issue “is entirely subsumed by the question presented, as both the Fifth Circuit‘s holdings turned on the (il)logic that foreign rights travel with U.S. rights when the latter revert to the author, whether the reversion happens via termination notice or via inheritance”.
“This Court should not countenance Vetter‘s vow to stymie the effect of a reversal by ‘veto[ing]’ subsequent ‘transactions’ involving Double Shot to the extent possible, regardless of how mutually beneficial they may be,” a footnote states. “That would be the ne plus ultra of cutting off one’s nose to spite one’s face – not to mention a distortion of the certiorari process.”
The reply opens by citing a law review article co-written by Tim Kappel, the attorney who led Vetter’s case in the lower courts.
“Respondent Cyril Vetter‘s own lawyer has admitted that he brought this case for one reason: to upend the ‘common industry reading of’ the Copyright Act’s termination provisions,” the brief states.
In that article, Kappel and co-author Loren Wells wrote that the domestic-only reading of termination “has been a common industry reading of the statute”, adding: “We just don’t agree with it.”
The reply also refers to “Vetter‘s self-professed ‘fringe’ position”.
Vetter‘s brief had already disputed that characterization when the petition made it, saying the publishers repeated it “with metronomic regularity”. It pointed instead to what Kappel and Wells actually wrote: that their district court win vindicated “a position that was too quickly dismissed as fringe or even ignorant”.
The publishers also take issue with the Vetter brief’s description of law professors who back the domestic-only reading as engaged in “groupthink”.
The reply says leading scholars, naming David Nimmer, William Patry, and Jane Ginsburg, are sources “routinely invoked for decades by courts, the government, and experienced Supreme Court counsel alike”.
As one example, it cites the petition Cox Communications filed at the Supreme Court in 2024.
Cox’s counsel of record on that petition was E. Joshua Rosenkranz of Orrick, who is now Vetter’s counsel of record.
Rosenkranz went on to win that case, with the Supreme Court ruling on March 25 that Cox could not be held liable for its subscribers’ music piracy.
Paul Clement, counsel of record on the publishers’ reply, argued that case for the music companies.
Another footnote suggests the Supreme Court could seek the US government’s view first.
“To the extent the Court has any doubts, it may wish to call for the views of the Solicitor General so the Copyright Office can confirm the disruption this case has spawned,” the footnote states.
The court took that step in the Cox case in November 2024, and granted review in June 2025, after the government filed its brief that May.
The reply also includes an amended corporate disclosure statement for BMG Rights Management (US) LLC.
It states that the company is now indirectly owned approximately 67% by Bertelsmann, and owned approximately 33% by affiliates of Great Mountain Partners.
That split matches the terms of BMG’s merger with Concord, which completed on September 1.
The disclosure statement in the publishers’ June petition, which the reply amends, described the company as wholly owned by Bertelsmann.
The dispute concerns Double Shot (Of My Baby’s Love), which Vetter wrote with Smith in 1962 and assigned to Windsong Music Publishers the following year.
The four publishers bought Resnik Music Group‘s asserted interest in the song in March, after the Fifth Circuit ruled, and took over the case.
“The Court should grant certiorari,” concludes the brief, signed by Clement and three colleagues at Clement & Murphy.Music Business Worldwide
