The Fifth Circuit has affirmed a grant of summary judgement finding that the co-author of the 1966 song “Double Shot (Of My Baby’s Love)” and his companies are the sole owners of the song’s copyright around the world.
Cyril E. Vetter and Donald Smith wrote the song in the summer of 1962 in Baton Rouge, Louisiana.
The next year, they transferred their copyright interests in an assignment agreement to Windsong Music Publishers, Inc. in exchange for one dollar.
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].”
After the song was released, Windsong filed for a copyright registration for it with the US Copyright Office. As copyright law then existed, this gave Windsong federal copyright protection under the Copyright Act of 1909 for an initial term of twenty-eight years with a possible renewal term of an additional twenty-eight years.
In 1972, Smith died in a plane crash. His heirs and Vetter renewed the original copyright for “Double Shot” when its original term ended in 1994.
According to the court,
It is undisputed that the transfer of Vetter and Smith’s renewal rights to Windsong in the 1963 Assignment was contingent on Vetter and Smith surviving the original term of the copyright and being alive during the renewal term. Because Vetter was alive during the renewal term, his renewal rights transferred to Windsong under the 1963 Assignment. Because Smith died before the start of the renewal term, his heirs obtained his renewal rights rather than Windsong under the 1963 Assignment. Therefore, Windsong owned fifty percent of the Renewal Copyright given the transfer of Vetter’s renewal rights, and Smith’s heirs owned the remaining fifty percent of the Renewal Copyright in 1994.
Further complicating matters,
In the spring of 1996, Vetter Communications Corporation purchased the renewal rights held by Smith’s heirs. Later that year, Windsong assigned fifty percent of its interest in the Renewal Copyright to Lyresong Music, Inc. (“Lyresong”). At this point, Vetter Communications Corporation owned fifty percent of the Renewal Copyright given its purchase from Smith’s heirs, and Windsong and Lyresong each owned twenty-five percent of the Renewal Copyright.
In 2019, Vetter sent Windsong and Lyresong a notice of termination under 17 U.S.C. § 304(c).
Section 304(c) of the Copyright Act of 1976 allows authors and artists to terminate transfers of their copyright rights covering an extended renewal term:
In the case of any copyright subsisting in either its first or renewal term on January 1, 1978, other than a copyright in a work made for hire, the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it, executed before January 1, 1978, by any of the persons designated by subsection (a)(1)(C) of this section, otherwise than by will, is subject to termination.
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.
The notice of termination informed Windsong and Lyresong that Vetter was terminating “all authorship/ownership rights originally granted and conveyed by [Vetter] to [Windsong]” under the 1963 Assignment as of May 3, 2022.
In August 2019, Windsong’s owner told Vetter that the company had been sold to Resnik.
In 2022, the American Broadcasting Companies, Inc. sought an expanded license to the song from Vetter and the associated companies. ABC wanted to use the song in a television episode that had already aired.
As the court explained, “ABC was seeking to expand the original music license to include inter alia worldwide digital broadcasts and on-demand streams.”
Resnik continued to claim twenty-five percent ownership of the song even after the notice of termination.
After a lower court ruled in favor of Vetter, Resnick appealed, arguing (among other things) that the district court’s holding conflicted with US treaty obligations under the Berne Convention and Universal Copyright Convention.
The Fifth Circuit disagreed, saying:
Vetter transferred his exclusive rights to Double Shot throughout the world to Windsong in the 1963 Assignment. …. Copyright protection for these rights was granted under the U.S. Copyright Act and, in accordance with the Berne Convention and Universal Copyright Convention, was to be recognized by other member countries across the globe. Therefore, these rights would continue to be recognized across the globe consistent with the principle of national treatment when Vetter recaptured them upon termination.
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