Cyril Vetter, the songwriter who won a landmark termination rights ruling in the US courts last year, recently told judges on the US Supreme Court to ignore all the hyperbole and doomsaying now being pushed out by the major music publishers regarding the impact of that ruling.
In a new court filing, the major publishers have provided yet more doom and gloom predictions which the Supreme Court judges may or may not want to ignore.
If that ruling stands, the majors write, “the result is disruption and instability so profound as to threaten the licensing of copyrighted works throughout the world”. And the top court of the USA should not allow decisions in lower American courts to “radically disrupt copyright worldwide”.
Under US copyright law songwriters who transfer copyrights in their work to a business partner, like a music publisher, can terminate the transfer and reclaim the rights after 35 years.
However, industry convention says that that termination only applies within the US. So where a publisher initially acquired global rights, it would still control the rights everywhere else even after termination. But in the Vetter case, a district court and then the Fifth Circuit Appeals Court ruled that termination applies globally.
The Universal, Sony and Warner music publishing companies, along with BMG, only got involved in this case in a bid to get the Supreme Court to intervene, and to overturn the Fifth Circuit judgement and basically endorse previous industry convention. That involved buying rights in the song at the centre of the dispute, which tells you the majors are very concerned indeed about the precedent set in Vetter.
In their latest filing, the majors also take aim at Vetter’s lawyer Tim Kappel who, they say, has “admitted that he brought this case for one reason: to upend the ‘common industry reading of’ the Copyright Act’s termination provisions”. Which is true but not really relevant, in that Vetter’s team are seeking to upend the common industry reading of the termination right because they believe that reading to be incorrect.
At the moment the majors and BMG are still trying to persuade the Supreme Court that it should review the case. In a filing last month, Vetter’s team pointed out that no other US appeals court has actually reached a termination rights ruling that contradicts with the Fifth Circuit’s judgement.
If there was a disagreement between different appeal courts around the US on how termination rights work, the Supreme Court should clearly intervene. But so far there is not.
However, the majors argue in their new filing, the Vetter ruling creates such “instability” in the music rights market that the Supreme Court should intervene now, despite there being no conflict between different appeal courts.
Not least because, they claim, songwriters as well as publishers could lose out from all that instability, because - they insist - writers “rely on publishers to promote their works, protect them from infringement, and coordinate royalty payments foreign and domestic”.
If the Supreme Court does review the case, it will have to spend some time considering the Berne Convention, which is the global treaty that connects copyright systems around the world when it comes to the copyright in songs and compositions.
Under the Berne Convention, a creator who creates a copyright protected work in one country also enjoys protection in other countries, meaning they can control and monetise their copyrights more or less globally.
At the core of this dispute is whether or not the outcome of the Berne Convention is that a group of different copyrights come into being - so the creator owns a separate copyright in each country that has signed the treaty - or whether there is a single copyright in the creator’s home country that can then be enforced in other jurisdictions because of Berne.
This is relevant because US copyright law says the termination right does not apply to “rights arising under foreign laws”. So if the outcome of Berne is lots of foreign copyrights, the termination right for American works only applies in the US. But if there is a single US copyright that can simply be enforced globally - and if the transfer of that single copyright is terminated - global rights revert to the writer.
As far as Team Vetter are concerned, there is a single copyright that can be enforced globally and, once you accept that viewpoint, Berne becomes irrelevant and all that matters in this dispute is what US copyright law says about termination. For the publishers, there are likely more Berne Convention considerations. They certainly talk about Berne quite a lot in their latest filing.
Interestingly, the Berne Convention lacks a built in dispute resolution mechanism, and while signatory countries can use the World Trade Organisation’s dispute settlement mechanism for issues around copyright treaties, that route is not available to individual creators or copyright owners.
But for now the big question is whether the US Supreme Court will even intervene in any of this. The court’s judges are due to consider the matter later this month. If they do, it’ll be time for a big old copyright law technicality party, complete with some added Berne Convention tangents.
And remember, if after all these legal shenanigans the Fifth Circuit’s ruling does ultimately stay in place, that will “radically disrupt copyright worldwide”. Or not, depending on who you believe.