Will the US Supreme Court Change What’s In the Public Domain?
Just when you thought it was safe to appropriate works in the public domain, along comes a case, Golan v. Holder. (10th Circuit decision here)
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.
Tags: appropriation, derivative, painting, photography, sculpture, transformative
Are you sure this case refers to only to works created before 1923?
For Shostakovitch this would be work written/published before he was 17?
I can’t tell from the decision because the “factual background” is poor and doesn’t name the Shostakovitch works or say when they were written/published.
I think you’re right. I’m checking into this to confirm, but I’ve addressed your question in the post. Thanks for noticing!
To the author of this article,
I’ve read your piece and the 10th-Circuit decision and I disagree with your view of the case.
My first impression is that you are misleading viewers who might not be as familiar with the workings of the law into believing that the Supreme Court has the power to decide what is within the public domain. That issue, as well as issues of copyright, are of the realm of Congress. The role of the Supreme Court in this case is limited to deciding whether Congress, in its implementation of Section 514 of URAA, acted in violation of the reasonableness standard utilized in the analysis of content-neutral First Amendment claims. The Court has no say in the actual content of the public domain.
Though the plaintiffs contend that the actions of the government infringe upon their freedom of expression rights, the US may reasonably seek to protect its intellectual property interests abroad by honoring the copyright claims of the very countries that are infringing upon American copyrights. That such measures can and will impact artists who have previously utilized foreign copyrighted material in their works is necessary to achieve the government’s interest. However, even these artists are not without protections against immediate exposure to legal liability, given the provisions of Section 514 that establish both a one-year “grace period” and an opportunity for the reliant parties to negotiate a suitable fee to be paid to the foreign copyright holders for the continued use of the work. The argument that the government is infringing upon artists’ First Amendment rights is weakened by these provisions, because they permit alternative measures by which artists may still have access to these properties for use in their works.
Any argument that Section 514 restores copyright to all previously public domain foreign properties is deeply flawed. URAA only permits the restoration of copyrights for foreign works that were denied protection due to failure to comply with formalities, lack of subject matter protection, or lack of national eligibility. Pursuant to the URAA and the Berne Convention, copyright is only restored to properties for which the term of protection has not run out. Section 514 explicitly excludes from restoration all foreign properties for which the term of protection has expired. The hypothetical presented in your article suggests that even properties with expired terms of protection would have copyright protection restored under Section 514, which simply is not true.
I also think that with your hypothetical, you are blurring the line between the US recognizing a foreign copyright, and the US enforcing a foreign copyright claim. By definition, Section 514 removes from the public domain specific foreign works that fall under its provisions. In order for a foreign nation to seek protection of its copyrights in the US, the country would, in addition to the automatic restoration of certain copyrights under Section 514, be required to submit to the US Copyright Office a list of properties for which it desires to enforce a copyright claim. So, a foreign country could not sue an American artist unless it had previously filed a claim on the property in question with the Copyright Office. If the foreign nation had already filed, then it is arguably the responsibility of the artist to check with the Copyright Office for claims on the property he seeks to appropriate for use in his work. He hardly needs to check with all other countries of the world when the US government will suffice to give him the information he needs.
I agree with the 10th Circuit on this one. As the largest producer and exporter of intellectual properties in the world, the US has a vested interest in taking reasonable measures to protect not only the expressive rights, but also the financial rights of its creative individuals and industries. It is hardly unsurprising that other countries expect the same respect of their copyrights that the US is seeking for its own. The US had already agreed to copyright reciprocity when it signed on to the Berne Convention way back in 1989. The only reason why the US has not followed that agreement is because the implementing language for the Berne Convention by Congress did not include the Berne provision on reciprocity. The contested legislation in this case seeks to remedy that deficiency and hold the US to its prior agreement with the added benefit of lending validity to the US’s claims on its copyrights in foreign countries.