The US Supreme Court should ignore the hyperbole and doomsaying of the major music publishers and leave well alone the landmark termination rights ruling won by songwriter Cyril Vetter in the Fifth Circuit Appeals Court earlier this year. Or at least so says Vetter’s legal team.
The publishers are “trying to depict this case as some sort of copyright emergency”, his attorneys write in a new legal filing with the Supreme Court. But the publishers “are doing just fine”, they add, “and will continue to thrive even if some of them have slightly less bargaining power with which to deprive authors of a fair return when their works become wildly successful”.
Under the Fifth Circuit judgment, the termination right in US copyright law - which allows songwriters to reclaim copyrights they previously transferred to a publisher after 35 years - applies globally, meaning they can reclaim control of their work worldwide.
Previous music industry convention was that the termination only applied in the US, meaning the publisher would still control the rights in other countries.
This particular legal dispute was originally between Vetter and independent publisher Resnik Music Group. However, because the judgement went against music industry convention, the three major music publishers - Sony Music Publishing, Universal Music Publishing and Warner/Chappell - teamed up with BMG to buy Resnik’s interest in the Vetter song that is at the centre of the dispute.
They then asked the Supreme Court to intervene, telling the top court that the Fifth Circuit ruling “departs from bedrock copyright law”, and favours a “fringe” legal theory that “bucks the common industry reading of the statute”, and will cause “chaos” in the music industry.
But Vetter’s legal team dispute all those claims in their Supreme Court filing. Among other things, they note that “the Fifth Circuit’s decision actually reflects modern industry practice”.
While in the past US songwriters often signed long-term publishing deals, relying on the termination right to reclaim works at a later date, today writers generally do shorter-term deals meaning they will get their copyrights back after 10 to 20 years under contract. And they generally get them back on a global basis.
Elsewhere, Vetter’s team argues that the big publishers bringing this dispute to the Supreme Court is premature, because no other US appeals court has reached a contradictory conclusion on the termination right, which would be a good reason for the top court to intervene.
And while the publishers claim the Fifth Circuit’s songwriter-friendly interpretation of the termination right was an “outlier”, that’s mainly based on “the views of a selected group of academics” which, they say, “is hardly a basis” for the Supreme Court to review the case.
But if the Supreme Court does decide to get involved, Vetter’s team is unsurprisingly keen to stress that the Fifth Circuit judges got it right when they reviewed what US copyright law says about the termination right. Plus the appeal court’s interpretation of that right matches “the whole point of the termination provision” which was “to safeguard authors against unremunerative transfers”.
We await to see if the Supreme Court decides to take the case. Meanwhile, if you want to understand the nitty gritty of the arguments in this dispute, check out our report on the original district court ruling that the Fifth Circuit upheld.