On January 18, 2012, the Supreme Court confirmed 6-2 that
certain works that had entered the public domain could have their
copyright restored. Golan v. Holder, Case No. 10-545. The
works affected are estimated to number in the millions and could
include films by Alfred Hitchcock, such as The Birds;
books by Virginia Woolf, such as Mrs. Dalloway; symphonies
by Prokofiev, such as Peter and the Wolf; and paintings by
Picasso, such as Guernica.
The decision will not only affect the copyright owners, but also
anyone who relies on public domain works, particularly those
creating derivative works, reprint publishers, musicians, orchestra
conductors, teachers and film archivists.
The case considered the constitutionality of a portion of the
Copyright Act, 17 U.S.C. § 104A, that was enacted in 1994 by
Congress in order to comply with the international accord, the
Berne Convention. Section 104A allows for certain works that had
previously entered the public domain to have their copyright
reinstated. The types of works are non-U.S. works that were
protected in their country of origin, but were not protected in the
U.S. for the following three reasons:
- They were exempt from copyright protection at the time of publication (i.e., Soviet-created works).
- They were sound recordings fixed before 1972 (the U.S. did not protect sound recordings prior to 1972).
- The author did not comply with U.S. statutory formalities of copyright under the old 1909 Copyright Act (such as the old requirement of copyright notice).
The case was initiated by a group of orchestra conductors,
musicians and publishers who said that they relied on the free
availability of such public domain works and challenged the
constitutionality of Section 104A. After moving up and back through
the district courts and the Tenth Circuit Court of Appeals, the
Supreme Court agreed to hear the case. The majority (Justice
Ginsburg wrote the opinion) upheld the law, stating that it does
not unduly limit the First Amendment and that it supports the
underlying purpose of the copyright laws to promote the progress of
science and useful arts. The dissent (Justice Breyer wrote and
Justice Alito joined) argued that Section 104A does not support the
underlying purpose of the copyright laws because it does not
directly result in the creation of new works and that the majority
failed to take into account the importance of free expression,
which would be limited by the extended monopoly being granted to
these works.
In practicality, this decision means that the public domain has
become simply unreliable and that even where a work has entered the
public domain, it may later exit the public domain. This was
acknowledged by Justice Ginsburg when she stated, near the
beginning of the opinion, that "Neither the Copyright and
Patent Clause nor the First Amendment, we hold, makes the public
domain, in any and all cases, a territory that works may never
exit." For those of you considering use of a copyrighted work,
Venable can assist with wading through the complicated public
domain analysis and determining whether a work falls within the
public domain pursuant to the myriad of rules articulated in the
Copyright Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.