Will the US Supreme Court Change What’s In the Public Domain?
On March 7, The US Supreme Court agreed to hear arguments over whether or not Congress is constitutionally allowed to grant copyright protection to foreign works that are in the public domain under US Copyright law.
For visual artists in the US (and for anyone wanting to use current public domain works), this could be business as usual or a rethinking (and reworking) of what they appropriate, depending on how the Supreme Court decides this case. In a nutshell, Golan concerns freedom of expression and the right of the American people to use materials currently in the public domain, without fear the government will remove or restrict them from public use.
Take for example a sculptor who wishes to use a photograph whose copyright is currently owned by a German entity but in the public domain in the US, that depicts a three-dimensional object. The American sculptor would like to use this image to create an actual three-dimensional sculpture of the three-dimensional object depicted. If Golan is upheld, then the sculptor may be infringing on the German national’s copyright, and thus be susceptible to a copyright infringement lawsuit.
What this also means is that if Golan is upheld, artists would have to check to see if the image or text they want to use is still under copyright in a foreign country, even if the works are currently under public domain in the US.
Golan is scheduled to be heard fall of 2011.