Last month, the Federal Court of Appeals for the Fifth Circuit affirmed a lower court’s summary judgment in Vetter v. Resnik, 163 F.4th 951 (5th Cir. 2026), which seemingly did the unthinkable. It ignored all the concepts of territoriality and held that once songwriters take back their licensed rights, as the Copyright Act allows them to do, the take-back is worldwide. This shift in copyright ownership will likely have profound implications for the future of copyright licensing.
What is copyright termination?
A regular copyright interest has an expiration date, which could be renewed under the 1909 Copyright Act to give authors an opportunity to renegotiate their licensing contracts. Under the 1976 Copyright Act, which governs works created in 1978 or later, the renewal right became a termination right, which provided authors and certain designated successors with the right to take back any license of the copyright.
For grants of rights after 1978, Section 203 of the Copyright Act provides a five-year termination window that generally opens 35 years after the grant; for pre-1978 grants of rights, Section 304(c) opens the five-year termination window 56 years after the grant.
The statute is clear that “[t]ermination of a grant under this section affects only those rights covered by the grants that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws.” 17 U.S.C. § 203(b)(5); 17 U.S.C. § 304(c)(6)(E).
What happened in Vetter?
The case is about termination of rights in the song Double Shot (Of My Baby’s Love) written back in 1962 by Cyril Vetter and Donald Smith, who jointly assigned the copyright to their publisher in 1963. The assignment “included a transfer of the exclusive rights to Double Shot throughout the world for the full term of copyright protection, including a contingent assignment of all renewal period rights under the [Copyright Act of 1909].” Vetter, 163 F.4th at 954.
In 1966, a cover version of the song reached No. 17 on the Billboard Hot 100. It was also banned on many radio stations due to lines referring to drinking and sex: “worst hangover I ever had” and “she loved me so hard.” There was nothing remarkable about the song’s subsequent history, other than ABC’s request in 2022 to use it for streaming a previously aired episode of the TV show Moonlighting. By that time, Vetter’s successor-in-interest (who now owned consolidated renewal rights in the song) provided a notice of termination of the 1963 assignment. One of the assignment’s owners, however, continued claiming foreign rights to the song despite the termination notice.
What is the law after Vetter?
Courts have been careful to abide by international conventions when dealing with copyright law. Thus, for example, the Ninth Circuit in Subafilms, Ltd. v. MGM-Pathe Commc’ns Co., 24 F.3d 1088, 1097-98 (9th Cir. 1994), which dealt with the rights to The Beatles’ cartoon Yellow Submarine, explained the importance of keeping the Copyright Act’s extraterritoriality reach in check:
Extraterritorial application of American law would be contrary to the spirit of the Berne Convention, and might offend other member nations by effectively displacing their law in circumstances in which previously it was assumed to govern. Consequently, an extension of extraterritoriality might undermine Congress’s objective of achieving “effective and harmonious” copyright laws among all nations. Indeed, it might well send the signal that the United States does not believe that the protection accorded by the laws of other member nations is adequate, which would undermine two other objectives of Congress in joining the convention: “strengthening the credibility of the U.S. position in trade negotiations with countries where piracy is not uncommon” and “raising the likelihood that other nations will enter the Convention.”
Id. Yet the Vetter court held that “[t]here is no explicit geographical limitation in … [the termination statute] that restricts the exploitation of Vetter’s rights to uses within the United States.” Vetter, 163 F.4th at 957. Thus, under Vetter, if the original grant was good against the whole world under the U.S. Copyright Act, its termination would have the same effect.
In doing so, the Vetter court rejected other decisions reasoning that the rights to exploit copyrights abroad are governed by the copyright laws of foreign nations. Those decisions, said the court, rely heavily on commentators such as Nimmer on Copyright and thus do not carry much weight.
So what about extraterritoriality? The Vetter court solved the problem by viewing the issue as one of ownership rather than infringement. The ownership, reasoned the court, arose under the U.S. Copyright Act, and it is that ownership that is at issue when termination comes around. In doing so, the court rejected the notion that “there are multiple and separate copyright interests in each country, rather than a single overarching international copyright that each country is required to honor.” Rather, after Vetter, there is a single concept of ownership, most likely adjudged by the laws of the county of origin, which other countries then enforce.
So what now?
There has been heated commentary over this result. The immediate effect is that licensees who negotiated and paid for worldwide rights based on the expectation that only domestic rights could be terminated will now end up with potentially worthless foreign rights. More litigation will undoubtedly result, as well as forum-shopping for that litigation, with authors trying to end up in the Fifth Circuit and their assignees shooting for any other.
Moreover, the unilateral worldwide imposition of the U.S. termination rights may rub the other treaty signatories the wrong way. This is especially because foreign authors, unlike their U.S. counterparts, will now be treated differently here, as their works were created under “foreign” laws and thus cannot claim the same termination rights. Given the applicable treaties’ promises of equal treatment for all the participants, this may become a political issue.
