Never before have borders been blurrier. Goods, services, and, relevant here, art freely circumnavigate the globe with little regard for where one nation ends and another begins. When I listen to a song in my office in New York City, the singer may be Italian and the producer may be Colombian and the song may be streaming via a Swedish platform. That song recording, though, has a single copyright, one that attaches as soon as it is created.
Yet courts applying Sections 203 and 304 of the Copyright Act to such songs have heretofore foregrounded national borders to create a sprawling multiverse where one song recording has as many copyrights as there are countries in the world. Sort of like “Interstellar,” but for copyrights. We may, however, be shuffling toward clarity with a new ruling out of Louisiana in the case styled Vetter v. Resnick.
Sections 203 and 304 of the U.S. Copyright Act relate to the termination right, which was written into the Copyright Act to allow artists, who often receive unfavorable terms when they first transfer the copyrights in their artwork, to recover those copyrights once 35 years have passed and the initial recipient has had the opportunity over those three-and-a-half decades to exploit the copyrights to their heart’s and wallet’s content.
Cyrvil Vetter is an artist. He and a co-author created a song entitled “Double Shot (Of My Baby’s Love)” that rocked so hard that no less an authority than Bruce Springsteen extolled it as one of greatest tunes of all time. Vetter transferred his worldwide rights in “Double Shot” to his label and those rights eventually ended up owned by a company named Resnik Music Group (RMG). Vetter, 35 years after his transfer, exercised his termination right to recapture the “Double Shot” copyrights. RMG, though, fought the notice, claiming among other things that the termination would apply only to the U.S. copyright. In other words, RMG would concede the domestic portion of the “Double Shot” copyright but claimed that it also had a massive number of discrete “Double Shot’ copyrights that arose under the law of every non-U.S. country in the world and those rights were not subject to Vetter’s termination notice.
Notably, Vetter entered into a single “worldwide” transfer of the “Double Shot” copyright. Once that transfer was terminated, the single copyright returned to Vetter. But RMG argued that despite “worldwide” transfer’s termination only the U.S. copyright returned to Vetter. RMG claimed that it thus maintained ownership of the Brazilian copyright, the Danish copyright, the Estonian copyright, and so on, despite there not being any copyrights other than the one that came into being when Vetter created the song in the U.S.
RMG was attempting to exploit the “principle of territoriality,” which holds that copyright laws generally do not have extraterritorial application. This principle was historically applied to acts of purely extraterritorial copyright infringement, which are generally not actionable under the U.S. Copyright Act. For example, if an infringer sold without your consent hoodies bearing your original surfing llama artwork in Portugal, you would have to sue them in Lisbon because those acts are beyond the U.S. Copyright Act’s purview
But Vetter’s copyright case addressed not infringement but ownership. Courts regularly embrace different approaches to these two types of copyright cases, such as when applying the statute of limitations. The Second Circuit recognized this in Itar-Tass Russian News Agency v. Russian Kurier, Inc., explaining that “the nature of a copyright interest is an issue distinct from the issue of whether the copyright has been infringed.” The law is relatively settled that issues of copyright ownership are decided by the laws of the country in which the work was created. Vetter brought an ownership case for a work that he created and owned in the U.S. and the rights for which he recaptured in the U.S.
Vetter thus enjoyed one copyright in the “Double Shot” recording under U.S. law and that copyright was recognized in other countries around the world per the terms of the international treaty known as the Berne Convention. Members of Berne, which include many of the world’s largest markets, must treat authors from other member countries as well as they treat their own so if an author terminates a transfer to recapture ownership under U.S. law, that ownership must be recognized by all Berne countries. Vetter’s ownership right, arising as it did under U.S. law, must thus be recognized by other Berne nations.
RMG argued otherwise, relying on language in Section 304(c)(6)(E) of the Copyright Act that says that “[t]ermination of a grant under this subsection affects only those rights covered by the grant that arise under this title” and do not apply to “rights arising under any other Federal, State, or foreign laws.” This language, coupled with the “principle of territoriality” meant, per RMG, that there is a universe of separate copyrights, each living its own life in each country around the world, and as such must be treated individually. But the domestic rights and foreign rights in “Double Shot” “arise under” the Copyright Act, at least in Berne countries, because Vetter created and reclaimed ownership of the copyright in the U.S. and that ownership must, per Berne, be recognized by those foreign nations. Indeed, one of the driving forces behind Berne was to avoid a system where each foreign nation would be forced to separately address and apply its laws to a copyright.
RMG further averred that the Copyright Act’s effect hit a hard stop at the U.S. borders and thus had no application anywhere else in the world. But the Supreme Court had already addressed and rejected such a contention in Kirtsaeng v. John Wiley & Sons, Inc., where it considered whether the words “lawfully made under this title” in the Copyright Act included a geographic restriction. It found it did not, ruling that the phrase “lawfully made under this title” means made “in accordance with” or “in compliance with” the Copyright Act. The language reviewed in Kirtsaeng, like the language in Vetter, includes “nothing about geography.” And as in Kirtsaeng, it would be improper to inject a geographic restriction into Sections 203 and 304. Vetter’s copyright ownership rights “arose” under the Copyright Act because he created the work in the U.S. and his reclaimed ownership is not subject to any geographic restriction.
The Supreme Court also addressed the termination right in Stewart v. Abend and that time too did not set out any geographic restriction on the artist’s ability to reclaim their rights. Considering the holder of a transferred right that was terminated, the Court concludes that “the assignee of all of the renewal rights holds nothing upon the death of the assignor before arrival of the renewal period.” The Court did not say the assignee “holds exclusive rights in all countries other than the United States,” the Court said that the assignee holds “nothing.”
In the end, the Vetter court adroitly found there to be one copyright, granted by the country in which the work was created, and which must be recognized by the international community pursuant to treaty obligations. This result furthers the intent of Sections 203 and 304, which is to allow artists to fully recapture their rights. There will likely be an appeal, as record labels never relinquish rights without throwing up every possible obstacle, but this a very positive first step for artists everywhere.
Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.
The post ‘Double Shot’ Of Justice: Artist Termination Rights Go Global appeared first on Above the Law.
Never before have borders been blurrier. Goods, services, and, relevant here, art freely circumnavigate the globe with little regard for where one nation ends and another begins. When I listen to a song in my office in New York City, the singer may be Italian and the producer may be Colombian and the song may be streaming via a Swedish platform. That song recording, though, has a single copyright, one that attaches as soon as it is created.
Yet courts applying Sections 203 and 304 of the Copyright Act to such songs have heretofore foregrounded national borders to create a sprawling multiverse where one song recording has as many copyrights as there are countries in the world. Sort of like “Interstellar,” but for copyrights. We may, however, be shuffling toward clarity with a new ruling out of Louisiana in the case styled Vetter v. Resnick.
Sections 203 and 304 of the U.S. Copyright Act relate to the termination right, which was written into the Copyright Act to allow artists, who often receive unfavorable terms when they first transfer the copyrights in their artwork, to recover those copyrights once 35 years have passed and the initial recipient has had the opportunity over those three-and-a-half decades to exploit the copyrights to their heart’s and wallet’s content.
Cyrvil Vetter is an artist. He and a co-author created a song entitled “Double Shot (Of My Baby’s Love)” that rocked so hard that no less an authority than Bruce Springsteen extolled it as one of greatest tunes of all time. Vetter transferred his worldwide rights in “Double Shot”to his label and those rights eventually ended up owned by a company named Resnik Music Group (RMG). Vetter, 35 years after his transfer, exercised his termination right to recapture the “Double Shot” copyrights. RMG, though, fought the notice, claiming among other things that the termination would apply only to the U.S. copyright. In other words, RMG would concede the domestic portion of the “Double Shot” copyright but claimed that it also had a massive number of discrete “Double Shot’ copyrights that arose under the law of every non-U.S. country in the world and those rights were not subject to Vetter’s termination notice.
Notably, Vetter entered into a single “worldwide” transfer of the “Double Shot” copyright. Once that transfer was terminated, the single copyright returned to Vetter. But RMG argued that despite “worldwide” transfer’s termination only the U.S. copyright returned to Vetter. RMG claimed that it thus maintained ownership of the Brazilian copyright, the Danish copyright, the Estonian copyright, and so on, despite there not being any copyrights other than the one that came into being when Vetter created the song in the U.S.
RMG was attempting to exploit the “principle of territoriality,” which holds that copyright laws generally do not have extraterritorial application. This principle was historically applied to acts of purely extraterritorial copyright infringement, which are generally not actionable under the U.S. Copyright Act. For example, if an infringer sold without your consent hoodies bearing your original surfing llama artwork in Portugal, you would have to sue them in Lisbon because those acts are beyond the U.S. Copyright Act’s purview
But Vetter’s copyright case addressed not infringement but ownership. Courts regularly embrace different approaches to these two types of copyright cases, such as when applying the statute of limitations. The Second Circuit recognized this in Itar-Tass Russian News Agency v. Russian Kurier, Inc., explaining that “the nature of a copyright interest is an issue distinct from the issue of whether the copyright has been infringed.” The law is relatively settled that issues of copyright ownership are decided by the laws of the country in which the work was created. Vetter brought an ownership case for a work that he created and owned in the U.S. and the rights for which he recaptured in the U.S.
Vetter thus enjoyed one copyright in the “Double Shot” recording under U.S. law and that copyright was recognized in other countries around the world per the terms of the international treaty known as the Berne Convention. Members of Berne, which include many of the world’s largest markets, must treat authors from other member countries as well as they treat their own so if an author terminates a transfer to recapture ownership under U.S. law, that ownership must be recognized by all Berne countries. Vetter’s ownership right, arising as it did under U.S. law, must thus be recognized by other Berne nations.
RMG argued otherwise, relying on language in Section 304(c)(6)(E) of the Copyright Act that says that “[t]ermination of a grant under this subsection affects only those rights covered by the grant that arise under this title” and do not apply to “rights arising under any other Federal, State, or foreign laws.” This language, coupled with the “principle of territoriality” meant, per RMG, that there is a universe of separate copyrights, each living its own life in each country around the world, and as such must be treated individually. But the domestic rights and foreign rights in“Double Shot” “arise under” the Copyright Act, at least in Berne countries, because Vetter created and reclaimed ownership of the copyright in the U.S. and that ownership must, per Berne, be recognized by those foreign nations. Indeed, one of the driving forces behind Berne was to avoid a system where each foreign nation would be forced to separately address and apply its laws to a copyright.
RMG further averred that the Copyright Act’s effect hit a hard stop at the U.S. borders and thus had no application anywhere else in the world. But the Supreme Court had already addressed and rejected such a contention in Kirtsaeng v. John Wiley & Sons, Inc., where it considered whether the words “lawfully made under this title” in the Copyright Act included a geographic restriction. It found it did not, ruling that the phrase “lawfully made under this title” means made “in accordance with” or “in compliance with” the Copyright Act. The language reviewed in Kirtsaeng, like the language in Vetter,includes “nothing about geography.” And as in Kirtsaeng, it would be improper to inject a geographic restriction into Sections 203 and 304. Vetter’s copyright ownership rights “arose” under the Copyright Act because he created the work in the U.S. and his reclaimed ownership is not subject to any geographic restriction.
The Supreme Court also addressed the termination right in Stewart v. Abend and that time too did not set out any geographic restriction on the artist’s ability to reclaim their rights. Considering the holder of a transferred right that was terminated, the Court concludes that “the assignee of all of the renewal rights holds nothing upon the death of the assignor before arrival of the renewal period.” The Court did not say the assignee “holds exclusive rights in all countries other than the United States,” the Court said that the assignee holds “nothing.”
In the end, the Vetter court adroitly found there to be one copyright, granted by the country in which the work was created, and which must be recognized by the international community pursuant to treaty obligations. This result furthers the intent of Sections 203 and 304, which is to allow artists to fully recapture their rights. There will likely be an appeal, as record labels never relinquish rights without throwing up every possible obstacle, but this a very positive first step for artists everywhere.
Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at [email protected], and you can follow his law firm on Instagram: @veniceartlaw.
