WASHINGTON — Cyril Vetter and his co-writer sold “Double Shot (Of My Baby’s Love)” to a publisher for one dollar in 1963. On Monday the Supreme Court said it lacked a quorum to hear the major music companies’ bid to undo a ruling that makes Vetter and his company the song’s owners worldwide.
Four justices, Sonia Sotomayor, Neil Gorsuch, Amy Coney Barrett and Ketanji Brown Jackson, took no part, and the order does not say why. Federal law requires six justices for a quorum. The remaining justices were of the opinion that the case “cannot be heard and determined at the next Term,” so the Court affirmed the judgment of the Fifth Circuit under 28 U.S.C. §2109, which gives that result “the same effect as upon affirmance by an equally divided court.”
At stake is whether a songwriter who uses U.S. termination law gets a song back everywhere or only in the United States. The petitioners are BMG Rights Management, Capitol CMG, Essential Music Publishing and Warner-Tamerlane Publishing, which their own filing ties to Bertelsmann, Universal Music Group, Sony Group and Warner Music Group. Their lawyer, Paul Clement, told the Court that before the Fifth Circuit ruled it was “settled, literal hornbook law” that reversion reaches only U.S. copyrights. The companies acquired the disputed interest only after that ruling, the petition says.
The Fifth Circuit held otherwise. In a January 12 opinion, Judge Carl Stewart wrote that Vetter’s termination notice, effective May 3, 2022, covers “all of his rights,” including his copyright “to the extent that it extends internationally,” the court’s slip opinion states.
The fight turned commercial in 2022, when ABC sought an expanded license for a television episode covering “worldwide digital broadcasts and on-demand streams,” the opinion says. Vetter’s side gave ABC a quote as the song’s sole owners. Robert Resnik, who had bought the original publisher, kept claiming a 25 percent stake.
Vetter’s lawyers dispute the companies’ motives. Their brief in opposition called the petitioners “the four largest music companies in the world,” said the Fifth Circuit is the only circuit to have decided the question, and charged that they “bought the rights in dispute just to file this petition.” The companies’ reply warned against letting “one Fifth Circuit decision radically disrupt copyright worldwide.” Paramount Pictures, the Motion Picture Association, the recording industry’s trade groups and a group of law professors filed briefs urging review.
The same order list granted review in two other cases with no recusals noted, and carried Sotomayor’s statement on Chicago parking-ticket car seizures, a case she did take part in.
The Fifth Circuit covers Louisiana, Mississippi and Texas, and by Vetter’s count its reading is still the only appellate answer. Nothing on the docket says whether the companies will try to bring the question back through another court, or whether any other circuit will get the chance to disagree.
