April 19, 2018

Supreme Court Upholds Law Restoring Copyright to Some Public-Domain Works

In a 6-2 ruling handed down yesterday, the U.S. Supreme Court effectively asserted that works that fall into the public domain may be pulled back under copyright protection by an act of Congress.

In the decision [PDF] for Golan v. Holder, Justice Ruth Bader Ginsburg, writing for the majority, upheld a 1994 federal law that had taken some foreign-made works, first published abroad between 1923 and 1989, out of the public domain in the United States to comply with an international copyright convention.

University of Denver music professor Lawrence Golan and a group of orchestra conductors, film archivists, and others, had challenged the law, claiming that Congress had exceeded its authority under the Copyright Clause.

In June 2011, the American Library Association, the Association of College & Research Libraries, the Association of Research Libraries, the Internet Archive, the Wikimedia Foundation, and Paul Courant, the dean of libraries of the University of Michigan (a major participant in the HathiTrust digital repository), filed a joint amici curiae brief [PDF] in support of the plaintiffs, which read in part:

Librarians, archivists, and those who run digital repositories share Congress’s concern that U.S. authors receive fair compensation for their work. [We] respectfully submit, however, that reversing a core default principle of copyright law—that a work in the public domain stays in the public domain—impermissibly puts potential benefit to some authors ahead of the public interest.

The majority decision rejected the plaintiffs’ arguments. “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,” Ginsburg wrote.

The decision points out that by passing the law to meet international copyright convention requirements, “Congress ensured that most works, whether foreign or domestic, would be governed by the same legal regime.” Thus, works by Russian composer Sergei Prokofiev, whose Peter and the Wolf had formerly been public-domain in the United States, could now have the same protection as his American contemporaries such as Aaron Copland, Ginsburg wrote.

The law could potentially have far-reaching effects, as it asserts that works that fall into the public domain are not necessarily public-domain from then on. Congress could conceivably pass additional laws restoring copyright status to other public-domain works.

In a blog post yesterday, Duke University scholarly communications officer Kevin Smith characterized the decision as a “significant defeat” for the public domain in the United States:

[P]erhaps now we are seeing, unfortunately in my view, the steady erosion of the instrumentalist view of copyright that has prevailed in the U.S. for some time, and is enshrined in our Constitution, in favor of a natural rights approach that favors those who already own rights even when that favoritism disadvantages those who would create new works.

David Rapp About David Rapp

David Rapp (drapp@mediasourceinc.com) was formerly Associate Editor, LJ.



  1. As an author, I cannot help but be on the side of the defendants in this case. What is needed is a rethinking of copyright law, where the rights and royalties of the author and artist and their heirs are protected, just as property assets and money are left to heirs in a trust fund in perpetuity. Certain exceptions could be spelled out in a will, but they must be at the discretion of the author, not some arbitrary government judgment. This is a matter of property rights.

    • Jackie Kjono says:

      I understand why you feel that way as a writer with sole ownership of your copyrights

      If my grandmothers’ estates are anything to go by, it is difficult enough to decide who should get the tangible items and the liquid assets. Something intangible that may or may not have any value will be left undiscussed to avoid waht may seem at the time. If it were me, I would much rather that the things I wrote were still read 150 years from now than turned into yet another thing for my great great grandchildren to fight over and even if I put very specific instructinos in my will, I can’t know that my children will or that a charity I leave my rights to will.

      It get a bit more complicated when you get into audio and video files which may have multiple rightsholders, many of whom may not even realize that those rights have value. If you would like to use a video clip in an entirely different project and you can’t track down the name of the extra whose elbow was in three frames of the scene, and you use it anyway, there is the potential for that person to show up later on and sue you. Granted, it is not very likely that a particular individula would do such a thing but, the more rights holders you can’t track down, the more likely it is that someone could be offended and the more open you are to lawsuits.

      This is a real problem for documentarians, archivists, remixers, collage artists. I think it is unrealistic to expect such people to 1) have a deep professional expertise in copyright and probate law and to 2) spend the bulk of their time slogging through spotty legal records to determine whether they can do a particular project or not.

    • Jackie Kjono says:

      sole “owner” of your copyrights. Sorry. I rearranged a few sentences there. Can you tell I am *not* a writer?

    • Jackie Kjono says:

      also – left undiscussed to avoid what may seem at the time to be a pointless argument.

      clearly batting 1000 today.