Golan v. Holder – Dawn of the Dead Copyrights?
November 16, 2011 By McDole & Williams, P.C.
If society continues to insist that creative works are part of a growing and widely accessible “cultural commons,” copyright holders may be at serious risk.
Earlier this year, the Supreme Court heard oral arguments in the case of Golan v. Holder. Originally filed in 2001, Golan is challenging the constitutionality of Section 104A of the Copyright Act, added in 1994 by the confusingly-named Uruguay Round Agreements Act. The key issue is whether Congress can, consistent with the Copyright Clause and the First Amendment, remove works from the public domain by “restoring” copyrights to works that had either expired, failed to vest due to a failure to comply with technical requirements, or were otherwise never eligible for U.S Copyright protection.
During the oral arguments (view the transcript here), Justices Ginsburg and Sotomayor appeared sympathetic to Congress’s power to create a U.S. copyright in works that, for various reasons, had never previously enjoyed U.S. copyright protection. Justice Kennedy and Chief Justice Roberts, however, appeared less enthusiastic about the implications of Congress’s actions with respect to works that had previously been copyrighted in the U.S. and had thereafter entered the public domain and been subject to widespread public copying or performance. The Chief Justice thought that such a case would raise substantial First Amendment concerns. Specifically, he pondered how troubling it would be for Congress to prohibit members of the public from expressing something tomorrow that they were free to express yesterday vis-a-vis an amusing hypothetical involving Jimi Hendrix and his well-known rendition of The Star Spangled Banner. On a more serious note, Justice Alito asked whether under the government’s interpretation, Congress could essentially “restart” protection for any work by giving it a new term. U.S. Solicitor General Donald B. Verrilli, Jr., arguing on behalf of the government, conceded that there was no “ironclad limit” preventing such restorations, even though the “text of the Copyright Clause” would limit congressional power. Keep in mind, however, that Golan is not a case where Congress has reached this far.
Golan is arguably the most significant copyright law case that the Supreme Court has ever considered. It goes directly to the heart of the Copyright Clause as a constitutional matter, while engaging the broad cultural issue of the future of the public domain in creative works. If our society continues to insist that creative works are part of a growing and widely accessible “cultural commons,” then the rights of copyright holders may be at serious risk in the future.
ABOUT THE AUTHOR: Kristen E. Knauf
Kristen Knauf focuses her practice on all aspects of intellectual property, with an emphasis on patent, trademark, copyright, and trade secret litigation. She also protects valuable brand names, corporate identities, proprietary knowledge, and works of art through trademark and copyright registrations. She has published articles on the Lanham Act and on unconscionable clauses in sports venue leases.
Copyright McDole & Williams, P.C.
More information about McDole & Williams, P.C.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
During the oral arguments (view the transcript here), Justices Ginsburg and Sotomayor appeared sympathetic to Congress’s power to create a U.S. copyright in works that, for various reasons, had never previously enjoyed U.S. copyright protection. Justice Kennedy and Chief Justice Roberts, however, appeared less enthusiastic about the implications of Congress’s actions with respect to works that had previously been copyrighted in the U.S. and had thereafter entered the public domain and been subject to widespread public copying or performance. The Chief Justice thought that such a case would raise substantial First Amendment concerns. Specifically, he pondered how troubling it would be for Congress to prohibit members of the public from expressing something tomorrow that they were free to express yesterday vis-a-vis an amusing hypothetical involving Jimi Hendrix and his well-known rendition of The Star Spangled Banner. On a more serious note, Justice Alito asked whether under the government’s interpretation, Congress could essentially “restart” protection for any work by giving it a new term. U.S. Solicitor General Donald B. Verrilli, Jr., arguing on behalf of the government, conceded that there was no “ironclad limit” preventing such restorations, even though the “text of the Copyright Clause” would limit congressional power. Keep in mind, however, that Golan is not a case where Congress has reached this far.
Golan is arguably the most significant copyright law case that the Supreme Court has ever considered. It goes directly to the heart of the Copyright Clause as a constitutional matter, while engaging the broad cultural issue of the future of the public domain in creative works. If our society continues to insist that creative works are part of a growing and widely accessible “cultural commons,” then the rights of copyright holders may be at serious risk in the future.
ABOUT THE AUTHOR: Kristen E. Knauf
Kristen Knauf focuses her practice on all aspects of intellectual property, with an emphasis on patent, trademark, copyright, and trade secret litigation. She also protects valuable brand names, corporate identities, proprietary knowledge, and works of art through trademark and copyright registrations. She has published articles on the Lanham Act and on unconscionable clauses in sports venue leases.
Copyright McDole & Williams, P.C.
More information about McDole & Williams, P.C.
View all articles published by McDole & Williams, P.C.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
