The United States Supreme Court has left standing a ruling that an American songwriter who terminates an old grant of copyright recaptures the rights worldwide, after four justices took no part in the case and the court was left without a quorum.
The order, issued on 19 October in BMG Rights Management v. Vetter, No. 25-1391, recorded that Justices Sotomayor, Gorsuch, Barrett and Jackson “took no part in the consideration or decision” of the publishers' petition for review. The order does not explain the recusals.
That left five justices. Six are required for a quorum under 28 U.S.C. § 1.
The remaining justices concluded that the case could not be heard and decided in the next term, which triggered 28 U.S.C. § 2109, a rarely used provision. Under it, the judgment below is affirmed “with the same effect as upon affirmance by an equally divided court”.
The effect is that the songwriter Cyril Vetter keeps the worldwide rights to “Double Shot (Of My Baby's Love)”, the publishers lose, and the Supreme Court has said nothing about which side was right.
The case had been expected to decide whether authors reclaiming their copyrights under American law recapture only the United States rights or the rights everywhere. In January the Fifth Circuit held, in Vetter v. Resnik as the case was captioned below, that Vetter's termination of his 1963 grant recaptured the rights worldwide. BMG and the publishing arms of Universal, Sony and Warner then bought the losing defendant's interest so that they could take the case to the Supreme Court. Vetter responded that the issue should be left to percolate in the lower courts.
An affirmance under § 2109 has no precedential value beyond the judgment itself. The Fifth Circuit's rule therefore binds federal courts in Louisiana, Mississippi and Texas, while courts elsewhere remain free to disagree, as the copyright lawyer Aaron Moss noted in Copyright Lately.
The outcome is unusual but not unprecedented. In May 2025 the same four justices, joined by Justice Alito, recused themselves in Baker v. Coates, in which a self-represented plaintiff claimed that a novel had copied his book. The district court dismissed the case, the Second Circuit affirmed, and with only four justices left to consider the petition the Supreme Court affirmed under § 2109 in nearly identical language.
Recusals have stalled this corner of copyright before. In Costco v. Omega, another dispute over the territorial reach of United States copyright law, the court split 4-4 after a justice who had earlier recommended denying review joined the bench and recused. The question was not settled until Kirtsaeng in 2013.
The statute is the part worth reading twice. The judgment is affirmed “with the same effect as upon affirmance by an equally divided court”. There were five justices. Five cannot be divided equally.
The Questionable Times accepts the legal position without reservation. Congress has provided that where the court cannot divide, it shall be deemed to have divided; and that where it has not considered a case, the result shall stand as though it had considered the case and been unable to agree.
Our analysts observe that this makes § 2109 the most efficient provision in American law. It produces a judgment, a winner and a loser from a court that was never assembled, on a question that nobody answered.
The consequences are now distributed geographically. In Louisiana, Mississippi and Texas, a termination notice recaptures the world. Outside them it may not. Nothing in the record establishes why, because there is no record.
Foreign courts are not bound by an American court's view of who owns foreign rights in any event, which leaves the worldwide rule worldwide in three states.
The Department of Unnecessary Research has a single question for the clerk's office. If five justices are deemed to have divided equally, the parties are entitled to be told which two and a half were on each side.