Saturday, August 13, 2022

US Supreme Court Extends Copyright to Foreign Works Once in the Public Domain

Another strong sign that U.S. courts are increasingly leaning toward protecting artists and their creative assets. Today, the U.S. Supreme Court correctly affirmed the 10th Circuit’s decision upholding Congress’s right to extend copyright protection to millions of books, films, artworks, and musical compositions by foreign artists that once were free for public use.

In a 6-2 decision (Kegan recused), Justice Ginsburg opined that Congress was acting “comfortably” within its powers when it extended copyright protection to foreign artists under treaty obligations that gave U.S. artists the same rights. Justice Breyer and Justice Alito dissented.

Lyle Denniston, of the SCOTUS blog, opined, “[a]ny 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[.]”

This decision should give pause to those pushing for the U.S. Supreme Court to hear Cariou v. Prince. The Ginsburg opinion was supported in full by Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy, Antonin Scalia, Sonia Sotomayor, and Clarence Thomas. Quit while you’re ahead, for it’s one thing to have a district court decision; it’s another to have a Supreme Court decision strongly (and correctly) restricting mindless appropriation across the land.

The case is Golan v. Holder.


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Comments: 2

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  • Nate Kleinman

    I’m somewhat familiar with this case, and I understand how this might be a victory for some artists (or their estates), but I just don’t see how this grant of power benefits the public or “promotes the progress of science and the useful arts.” As I’m sure you know, the primary purpose of copyright is not to benefit artists, but to incentivize them to create art for the benefit of the public. The public gains nothing from the retrospective grant of copyright for works that have already been created. In fact, this decision disadvantages the public because we lose the ability to freely enjoy works that were previously owned collectively (whether or not the public should have owned them in the first place is irrelevant). And I’m not sure all, or even most, artists would consider this decision a victory; I’m thinking of the conductor who could now face infringement claims for performing a foreign work at a high school concert, or a remix artist, etc. The only artists who benefit from this decision are the ones whose benefit is meaningless (because they’ve already created the works). Don’t get me wrong, I’m a strong supporter of artists (I consider myself one), but I just can’t support this decision.

  • MarcW

    Your point is well taken, but it’s a little more complicated than that: the USG signed a treaty which extended copyright to some works which under US law were still copyrighted, but under the law of other signatories would have been in the public domain absent the treaty. Part of the deal was that we would do the same. While it’s true that putting the works which were PD in the US back into copyright would not be much of an incentive to create, knowing that in future your works would be protected in other countries because of it is a strong incentive. Since Congress has absolute control of what it means to have a copyright, if they, in their wisdom *snerk* decided to take this approach to protect *future* rights by treating old works as if they had been part of the scheme all along, the Court is not going to second-guess them.

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