Affirmed Without a Quorum: BMG v. Vetter and the Worldwide Termination Rule

The order list of Monday, October 19, 2026, disposed of BMG Rights Management (US) LLC v. Vetter, No. 25-1391, in one paragraph and one sentence:

Because the Court lacks a quorum, 28 U. S. C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. §2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.”

“Justice Sotomayor, Justice Gorsuch, Justice Barrett, and Justice Jackson took no part in the consideration or decision of this petition.” The order gives no reasons for the recusals, and none is suggested here.¹

The judgment affirmed is the Fifth Circuit’s. It holds that when an author terminates a pre-1978 grant under the Copyright Act, the author recaptures the rights the grant conveyed throughout the world, not only the American copyright. The petition called that holding a break with decades of settled understanding and with the Second Circuit. The affirmance resolves the case. It resolves nothing else.

IA song from 1962

Cyril Vetter and Donald Smith wrote “Double Shot (Of My Baby’s Love)” in Baton Rouge in the summer of 1962. In 1963 they assigned their copyright interests to a publisher, Windsong Music Publishers, in an agreement that 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].” Smith died in 1972, before the renewal term began, so his renewal rights went to his heirs rather than to Windsong; Vetter Communications Corporation bought them in 1996. Vetter himself survived into the renewal term, so his renewal rights passed to Windsong under the assignment.²

In March 2019 Vetter served a notice of termination under 17 U.S.C. § 304(c), effective May 3, 2022, terminating “all authorship/ownership rights originally granted and conveyed by [Vetter] to [Windsong]” under the 1963 assignment. Robert Resnik, who had acquired Windsong, continued to claim a quarter of the song. When ABC asked in 2022 for an expanded license that would include “inter alia worldwide digital broadcasts and on-demand streams,” the question became concrete. Vetter and his company sued in the Middle District of Louisiana for a declaration that they owned the song outright, and the district court granted summary judgment declaring them the sole owners “throughout the world.”³

The Fifth Circuit affirmed on January 12, 2026, in an opinion by Judge Stewart for a panel of Judges Smith, Stewart and Ramirez. After its mandate issued on February 2, four music publishers, BMG Rights Management (US) LLC, Capitol CMG, Inc., Essential Music Publishing LLC and Warner-Tamerlane Publishing Corp., acquired the disputed interest and were substituted for Resnik as defendants. They filed the petition on June 11.⁴

IIWhat the Fifth Circuit held

The case turned on one clause. Section 304(c)(6)(E) provides that “[t]ermination of a grant under this subsection affects only those rights covered by the grant that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws.” Resnik read the clause as a geographic limit: the American copyright returns to the author, and rights in other countries stay with the grantee.⁵

The court read it as a limit on source. Taking “arise” in its dictionary sense, “to originate from a source,” it held that termination reaches the rights that originate in Title 17. Because Vetter’s rights arose under the Copyright Act, “the plain language of section 304(c)(6)(E) dictates that his termination would be effective as to all of his rights—including his copyright to the extent that it extends internationally.” In the alternative, if the phrase were ambiguous, the court borrowed the Supreme Court’s reading in Kirtsaeng v. John Wiley & Sons of “lawfully made under this title” in the first-sale provision, and concluded that “arise under this title” likewise “means ‘in accordance with’ or ‘in compliance with’ the Copyright Act.” It found support in the purpose of the termination right as the 1976 House Report described it, a provision “safeguarding authors against unremunerative transfers,” and quoted an amicus: “[d]enying terminating authors the full return of a worldwide grant leaves them with only half of the apple.”⁶

The court then dealt with the authority on the other side. It declined to follow three decisions Resnik cited: Siegel v. Warner Bros. Entertainment, from the Central District of California, which held in 2008 that a termination of the Superman grant affected only the domestic part of a worldwide assignment; Clancy v. Jack Ryan Enterprises, an unpublished District of Maryland decision that relied on Siegel; and the Second Circuit’s decision in Fred Ahlert Music Corp. v. Warner/Chappell Music, Inc. It answered the treaty arguments by holding that national treatment under the Berne Convention and the Universal Copyright Convention can be reconciled with its reading, and it confined the presumption against extraterritoriality to infringement: “Because Resnik has not shown that the presumption against extraterritoriality should be applied in the context of ownership, assignment, and termination, we hold that the district court did not err.”⁷

There was a second, independent holding, and it matters to what happened next. The half of the song that Vetter Communications bought from Smith’s heirs was not recaptured by termination at all. It came back under the renewal provision of the 1909 Act, through the rule that an assignee of renewal rights holds nothing if the author dies before the renewal term. The court held that this renewal interest, too, is worldwide: “Only by recapturing the exclusive rights to Double Shot throughout the world rather than recapturing U.S. rights alone would Vetter Communications Corporation receive fair remuneration consistent with the purpose of the Copyright Act of 1909.” It affirmed “the district court’s judgment in full.”⁸

IIIThe petition and the answer

The question presented was this: “When copyright rights revert to authors or their heirs by operation of U.S. law, is the reversion limited to U.S. copyrights (as numerous courts hold and everyone has long understood), or does the reversion extend worldwide to dictate the ownership of foreign copyrights (as the Fifth Circuit held below)?” The petition described the decision as “a dramatic split from decades of contrary authority” and said that until this case “the case law was in lockstep.” It drew amicus briefs from Paramount Pictures, the Motion Picture Association, the Recording Industry Association of America and others, the International Federation of the Phonographic Industry and others, and a group of intellectual-property law professors.⁹

Vetter’s brief in opposition led with the absence of a conflict: “Petitioners do not even suggest a circuit split.” It also made a vehicle argument. The publishers had not sought review of the renewal holding, so even a win on § 304(c) would leave them sharing ownership of the foreign rights with Vetter; as the brief put it, the publishers were “fighting for relief that this Court cannot give them.” The reply answered that the renewal question was “entirely subsumed by the question presented,” which asked about reversions to “authors or their heirs.” On the split, the reply did not claim an explicit conflict. It said instead that the absence of a circuit split “does not mean there is no meaningful split of authority here,” and that the domestic-only reading was a rule “so settled that it is not explicitly memorialized in other circuit court holdings.”¹⁰

IVWhat the Second Circuit actually said

The only court of appeals decision the petition offered was Fred Ahlert, decided in 1998, and it is worth reading for itself rather than through either brief. The question in that case was the scope of the Derivative Works Exception in § 304(c)(6)(A): whether Warner, whose predecessor had authorized a 1969 Joe Cocker recording of “Bye Bye Blackbird” before the author’s heirs terminated the grant, kept the right to license the recording’s use on the soundtrack album of Sleepless in Seattle. The court held that it did not.¹¹

Geography appears in the opinion only as background. Its opening paragraph describes the 1976 Act as allowing authors or their heirs “to terminate, for the period of the extended copyrights, any domestic copyright interests in their work that they may have granted to others.” Its statement of facts says that, on termination, “Warner’s domestic rights in the Song reverted to Dixon’s heirs,” citing § 304(c)(6), which the accompanying footnote quotes for the proposition that “all rights under this title that were covered by the terminated grant revert.” And it records how the parties had divided the licensing: “Because Warner retained the foreign rights to the copyright after termination, Ahlert directed TriStar to seek a quote from Warner for foreign use of the Song,” and “Ahlert’s license granted domestic rights to TriStar; Warner’s license granted foreign rights.”¹²

That is the whole of it. The opinion does not mention § 304(c)(6)(E), the clause on which Vetter turned, and nothing in it suggests that any party contended the heirs had recaptured foreign rights. The Fifth Circuit’s description is accurate: the Second Circuit “did not consider the precise question of the geographical scope of termination,” and it “only noted that ‘domestic rights’ reverted” to the heirs. The brief in opposition put the same point more sharply: “That was no holding.”¹³

In the Editor’s view, both briefs overstate their case. Fred Ahlert decided nothing about the reach of a termination, so the petition’s “split” rests on an assumption, not a holding. But the assumption was the Second Circuit’s own description of the statute, in a published opinion, and a district court in that circuit asked to decide the question would begin with it. The petition was right that the Fifth Circuit stands alone; it was wrong to describe the case law as a body of holdings in “lockstep” against it.

VWhat an affirmance without a quorum does

The statutes are short. Under 28 U.S.C. § 1, the Court consists of the Chief Justice and eight associate justices, “any six of whom shall constitute a quorum.” With four Justices recused, five remained. Section 2109 provides for exactly that case: where a case “cannot be heard and determined because of the absence of a quorum of qualified justices,” and “a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.”¹⁴

The text tells you what kind of order this is. The case was not heard and determined; in the statute’s words, it could not be. The judgment for Vetter stands because the statute directs an affirmance when the Court lacks a quorum, not because anyone decided that the Fifth Circuit was right. The Fifth Circuit’s published opinion, 163 F.4th 951, remains the court of appeals’ decision of the question, and the Supreme Court’s order adds no reasoning to it.¹⁵

What follows is commentary. The practical result is a rule with a border. In the federal courts of the Fifth Circuit, a termination of a pre-1978 grant under § 304(c) recaptures the rights the grant conveyed worldwide, and on the court’s second holding, so does the renewal-term reversion under the 1909 Act. Outside the Fifth Circuit, no court of appeals has decided the termination question: the brief in opposition said so, and the reply did not claim otherwise. The next case to reach the Supreme Court on the issue would have to come from another circuit, or from another set of parties in this one, and its petitioners would have this one’s vehicle dispute in mind: whether a question presented reaches every independent ground for the judgment is better settled by the question itself than argued in reply.

VIFor the litigator

Forum now matters. A declaration about the reach of a termination, sought in a federal district court in Texas, Louisiana or Mississippi, will be decided under Vetter. Elsewhere the question is open, and the Second Circuit’s 1998 description of the statute is the closest appellate language to the contrary.

Read the grant. The 1963 assignment conveyed “the exclusive rights to Double Shot throughout the world.” On the Fifth Circuit’s reasoning, the breadth of the original grant is the measure of what comes back. A grantee that took worldwide rights should assume it can lose them worldwide in that circuit.

Draft the notice to match. Vetter’s notice terminated “all authorship/ownership rights originally granted and conveyed,” and the court treated it as reaching everything the grant conveyed. A notice written in narrower terms invites an argument that the author recaptured less.

Frame the question to reach every ground. The brief in opposition argued that the renewal holding stood unchallenged; the reply answered that the question presented, which spoke of reversions to “authors or their heirs,” subsumed it. The Court never reached the dispute. A question that leaves no room for it is the safer course.

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The order of October 19 resolves a case and leaves the law where it found it. The law is the Fifth Circuit’s, for now and for that circuit. The Second Circuit’s contrary language is an assumption from a case about something else. Unless another court of appeals decides the question the other way, the split the petition described remains a split between a holding and the way everyone used to talk. §