SCOTUS to Hear Arguments in Copyright Case Wednesday - Fordham Intellectual Property, Media & Entertainment Law Journal
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SCOTUS to Hear Arguments in Copyright Case Wednesday

SCOTUS to Hear Arguments in Copyright Case Wednesday

This week, on Wednesday, the U.S. Supreme Court will hear arguments for a case with important implications for copyright protection. Golan v. Holder[i] is a case that deals with whether or not Congress can provide copyright protection to works that have already been in the public domain. The case originated in a Colorado district court where the federal statute at issue was deemed unconstitutional. On appeal, the Tenth Circuit reversed. Ultimately, SCOTUS granted certiorari to determine definitively whether section 514 of the Uruguay Round Agreement Act (URAA) is violative of the First Amendment.

In 1994, Congress passed the URAA in order to fully comply with various international agreements including the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), which required that signatory nations provide protection to works of foreign origin. Specifically, section 514 of the URAA “restores” protection to works that never obtained copyrights in the United States or lost their protection by failing to comply with necessary formalities.

The plaintiffs in Golan are parties who relied on works that they found in the public domain for education, performance, publishing and distributing, as well as Richard Kapp, who created a derivative work based on the compositions of Russian composer Dmitri Shostakovich. These plaintiffs stand to lose the ability to exploit the copyrightable work of the foreign writers, musicians, and artists—works that include Stravinsky’s Petrushka, Prokofiev’s Peter and the Wolf, and a 1932 Alfred Hitchcock film, Number 17, among many others[ii]—that they were comfortably profiting from before the 1994 law went into effect. But the URAA provides elevated protection for Kapp’s derivative work, allowing him to continue to exploit the derivative as long as he pays a fair compensation for the original work.

The pending litigation has garnered support on both sides from many interested parties. Amicus briefs have been filed in favor of Golan by Google, the ACLU, Creative Commons, and many other associations and intellectuals who want to sway the Court. On the government’s side, support comes from the Motion Picture Association of America and a number of organizations that support stronger copyright protections.

The plaintiffs’ argument is based on the First Amendment. They argue that section 514 of the URAA restricts their right to free speech, as they are unable to reproduce the expressions of the foreign authors found in the works they wish to exploit. But this argument was tried before in Eldred v. Ashcroft,[iii] and it failed to convince the Court to limit Congress’s power to extend copyright protections. Likewise, it is unlikely that it will work here.

In Eldred, the Court focused on protections granted to reliance parties, such as fair use, that allow the plaintiffs to continue to use others’ expressions if they are doing so fairly. So the educators that used public domain works such as Hitchcock’s previously unprotected work will be able to continue to do so—within reason—even if the Court rules in favor of the government. And the parties that are not educators aren’t exactly sympathetic.

The fact is, foreign authors deserve to have their works protected just as much as domestic ones, and the Court has not yet found a reason to limit Congress’s power to protect fixed expressions. While it seems counter to the purpose of the IP clause of the Constitution to give protection to previously authored works, if Congress wants to do it, they can—or so said SCOTUS in Eldred. Copyright law has been found to be compatible with the First Amendment, and there is no reason to believe it will be found incompatible now. But stay tuned, we’ll have a new answer to this question once the Supreme Court works out Golan v. Holder.

Check out the SCOTUSBlog for more information about the case, including the numerous amicus briefs.



[i] 611 F.Supp.2d 1165 (D. Colo. 2009), rev’d, 609 F.2d 1076 (10th Cir. 2010), cert. granted.

[iii] 537 U.S. 186 (2003)

Alexander Bussey

Alexander Bussey is a 3L at Fordham Law and the Senior Articles Editor of IPLJ Vol. XXIII. He has undergraduate degrees in studio art and biology, and hopes to pursue a career at the intersection of law and art.