Can You Re-Copyright Works That Fall Into Public Domain? High Court To Rule

Sheet Music

Copyrights do end — although these days, they’re so long (95 years for most works) that you’d scarcely know it. Once a work does fall into the public domain, can it be copyrighted again? In 1994, Congress effectively said “yes” when it passed a law that the government argued was necessary to get the U.S. properly aligned with the Berne Convention, an important international copyright treaty. But a group of public-interest lawyers and small businesses that use public-domain works have challenged the law, and today the U.S. Supreme Court agreed to hear their case.

The works that will be affected by Golan v. Holder are all foreign, and date from the earlier part of the 20th century. For various reasons, they fell into the public domain in the U.S.-but are still under copyright outside the U.S. In 1994, Congress put the works back into copyrighted status, with the goal of aligning U.S. and international copyright law in certain ways.

And many of them still do have commercial value. They include, for example, works by famous composers like Igor Stravinsky, Dmitri Shostakovich and Sergei Prokofiev. After those works fell into the public domain in the U.S., symphony conductors no longer had to pay royalties every time they played them. Another example: one of the plaintiffs in this case is a company that distributes films whose copyright has lapsed, which used to include movies like Fritz Lang’s Metropolis and the British film The Third Man.

For some businesses, such as smaller orchestras like the one conducted by plaintiff Lawrence Golan, those “restored” copyrights substantially drove up costs. If a piece of music is in the public domain, the sheet music can be bought once and then performed many times. For copyrighted symphonies, the sheet music is often rented and royalties must be paid for each performance. Golan and the other plaintiffs in this case got together with Lawrence Lessig, a law professor and digital copyright guru now at Harvard Law School, who organized their case and sued in 2001. The case has had a long trip, and been heard twice by a federal appeals court in Colorado, which most recently ruled against Golan.

The bigger principle here is whether Congress has the power to take a public-domain work and give it back to the copyright owner — ever. The small-business plaintiffs and their pro bono lawyers say this copyright “restoration” was an illegal confiscation from the public domain; the government and big copyright-holders, including the MPAA, RIAA, and ASCAP, say that the law was needed to align U.S. and European copyright interests. The opponents also argue that the U.S. must respect these copyright in these works-which were not in the public domain outside the U.S.-if we want European countries to respect our own copyrights.

In an interview this morning, Anthony Falzone, who directs Stanford Law School’s Fair Use Project, said he was thrilled. “This case presents some really important issues, and I’m glad the Supreme Court decided it was worth its attention.”

Falzone added that the idea that a victory for his clients would throw international copyright law into disorder was an exaggeration, although he did say that some aspects of how the U.S. adheres to key treaties like the Berne Convention may need to be re-negotiated. But that treaty gives countries plenty of latitude in choosing how to protect artists, he said. In any case, there continue to be areas where U.S. law differs substantially from European law; we don’t offer creators “moral rights” that extend beyond copyright, for example.

The case is one of two major challenges to Congress’ copyright policies launched by Lessig about a decade ago. Both challenges ultimately landed at the Supreme Court. In the first one, Eldred v. Ashcroft, Lessig argued that Congress violated the Constitution when it extended copyright terms in 1998. Lessig lost that case on a 7-2 vote.

Some background on why the foreign works in the Golan case fell out of copyright while others didn’t. Until 1976, U.S. copyright law was substantially more public domain-friendly and hard on copyright owners than European law. To get and maintain a U.S. copyright, there were a variety of formalities that had to be complied with, including posting of a copyright notice and filing the right paperwork with the U.S. Copyright Office. In 1976, those formalities were essentially all abolished. (Today, if you pen a haiku on the back of a cocktail napkin, it’s instantly copyrighted for the life of the author plus 70 years. Seriously.)

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