The songwriter who won a landmark ruling on copyright termination is urging the U.S. Supreme Court to reject efforts by major music companies to overturn it, telling the justices there is no “emergency” and that publishers are “doing just fine.”
The majors asked the high court this summer to tackle and reverse the first-ever ruling that came down in January, which said musicians can use termination to regain not just American songs but also overseas rights. They called the decision “profoundly wrong” and warned it will cause “chaos” for the music business.
But in their first brief to the justices on Monday (Sept. 14), attorneys for Cyril Vetter, the songwriter who won that ruling, say the music firms are “breathlessly” painting doomsday scenarios that are unlikely to happen.
“Petitioners try to depict this case as some sort of copyright emergency that cannot await further [litigation],” Vetter’s attorneys write in the brief, obtained and first reported by Billboard. “But publishers are doing just fine 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.”
The new brief — filed by Vetter’s longtime attorneys Tim Kappel and Loren Wells as well as veteran Supreme Court litigator Joshua Rosenkranz and his firm Orrick — argues that music companies are just afraid of actually competing over the real value of music.
“Petitioners openly resist a rule that makes publishers negotiate on an open market to re-up deals,” Vetter’s attorneys write. “Publishers can afford to negotiate with more artists about whether to give artists a fairer share of the fruits of their artistic brilliance.”
Attorneys for the music companies did not immediately return a request for comment on Tuesday (Sept. 15).
Termination is a legal provision that gives creators a chance to recapture their rights decades after they sold them away. But it has only ever applied to U.S. copyrights and had no effect in foreign countries. Under that approach, publishers continue to control overseas rights even after termination, an arrangement that gives them perpetual revenue in a globalized streaming era, veto power over cross-border projects and key leverage in deal re-negotiations.
In January, the ruling for Vetter overturned that longstanding approach. Siding with him in his quest to win back ownership of his 1963 rock classic “Double Shot (Of My Baby’s Love)” from a small publisher, a federal appeals court ruled that a terminating author should win back all of their rights, including those in foreign markets.
The ruling was hailed by musicians and their advocates as a “game-changer” and “a massive win for the principle of fairness.” But it has been decried by publishers, labels and investors, who stand to lose countless foreign revenue streams they’d expected to collect for decades.
In an unusual legal procedure, a group of major music companies (Universal Music Group, Warner Music Group, Sony Music Entertainment and BMG) bought out the small publisher in the case with the explicit goal of taking the dispute to the Supreme Court. And in an opening brief in June, they urged the justices to tackle a case they said had “unsettled 50 years of industry practice” and impacted billions of dollars worth of deals.
But on Monday, Vetter’s attorneys told the justices that the case should not even be before the Supreme Court. They said no other circuit courts (federal appeals courts) had yet ruled on the issue, meaning there was no “circuit split” for the justices to resolve — one of the primary factors that decides whether the high court will hear a case.
“It is something of a tell when experienced Supreme Court practitioners do not mention the phrase ‘circuit split’ until the penultimate page of their petition,” Vetter’s lawyers write. “That alone is reason enough to follow this court’s usual approach of letting the issue percolate.”
If the high court does decide to hear the case, Vetter’s attorneys say the ruling in his favor was clearly correct — that the text of the termination statute does not mention any geographical limits, and that returning only half of an author’s rights was obviously not what Congress had intended.
“Petitioners’ reading encourages the industry to exploit its ‘unequal bargaining position’ and preserve ‘unremunerative transfers’ of foreign copyright rights for a huge swath of the value authors convey in these assignments,” the lawyers write in the brief.
As for the dire warnings, Vetter’s attorneys say the high court has “heard this tune from the same industries many times before.” They cited warnings ahead of a Supreme Court case over resold books from 2013, as well as the famous lawsuit over the legality of the VCR, which movie studios had likened to the “Boston strangler” for the film industry.
“The industries lost those cases,” the songwriter’s attorneys say. “They adapted. And they are doing fine.”
Both sides are currently arguing over whether the high court should agree to hear the dispute in the first place — something the justices do in only a small fraction of the cases they are sent. If the Supreme Court does hear the case, new arguments will be filed by each side and a ruling could be expected some time next year.
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