The Public Domain Shrinks

The song in this cartoon is no longer in the public domain.

 

From the SCOTUS blog:

 In a historic ruling on Congress’s power to give authors and composers monopoly power over their creations, the Supreme Court on Wednesday broadly upheld the national legislature’s authority to withdraw works from the public domain and put them back under a copyright shield.   While the ruling at several points stressed that it was a narrow embrace of Congress’s authority simply to harmonize U.S. law with the practice of other nations, the decision’s treatment of works that had entered the public domain in the U.S. produced a far more sweeping outcome.

No one, the Court said flatly, obtains any personal right under the Constitution to copy or perform a work just because it has come out from under earlier copyright protection, so no one can object if copyright is later restored.  Any legal rights that exist belong only to the author or composer, the ruling said.  If anyone wants to resume the use or performance of a work after it regains copyright, they must pay for the privilege, the decision made clear.

The 6-2 decision (with Justice Elena Kagan not taking part) came in the case of Golan, et al., v. Holder (docket 10-545), involving a wide-ranging constitutional challenge to a federal law passed in 1994 to implement global agreements worked out in trade negotiations — the so-called Uruguay Round Agreement.  The challenge, however, failed on all points: the law does not violate the Constitution’s Copyright Clause, it does not violate the First Amendment rights of anyone who previously had free access to creative works, and it does not deviate from any long-standing historical practice or perception, according to the decision.

Justice Ruth Bader Ginsburg wrote the majority opinion.  Justice Stephen G. Breyer dissented, joined by Justice Samuel A. Alito, Jr.   The main opinion relied very heavily upon a prior opinion written by Ginsburg — the Court’s 2003 decision in Eldred v. Ashcroft, upholding Congress’s power to lengthen the terms of copyrights while they were still in force.   The new case was different, involving the grant of copyright to works never protected previously under U.S. law, and thus not previously restricted on use or performance in this country.   The Court majority, however, insisted that the guiding constitutional principles were not different.

The dissenters pointed out:

  that the new regime puts on those who would use or perform an old work that has become an “orphan” — that is, its ownership is unknown or uncertain — the considerable task of trying to find the owner.   The Court’s opinion responded by saying that dealing with “orphan works” is something that should be left to Congress, to take into account more influencing factors than a Court can consider in a lawsuit.

The Breyer dissent, joined by Justice Alito, dwelled mainly on what they argued was the highly unusual move by Congress to withdraw creative works from the public domain.  While that was not unprecedented, the dissenters said it had been done rarely, and only in truly novel circumstances — such as during wartime.   The dissenters also contended, as a constitutional principle, that the 1994 law does not satisfy the Copyright Clause because it did not encourage the creation of new works, but simply provided added compensation to works created decades before.

Take note, filmmakers!  You must search the records and be ready to pay, even if the source is old and foreign.