One Denver man's obscure but intriguing copyright case goes to the Supreme Court

It's been ten years since University of Denver professor Lawrence Golan filed his copyright suit in Colorado District Court, seeking the revocation of copyrights retroactively placed on works previously in the public domain, and now, after a lot of batting around and dual ruling reversals from both the Court of Appeals and the District Court, the case is headed to the highest court in the land; on Monday, the U.S. Supreme Court agreed to hear the complaint. That the case will even make it that far is pretty notable in itself, but it's also a pretty unusual situation that involves the tangled morass of copyright laws all over the world. Nevertheless, there does seem to be a common-sense ruling here.

It started in 1994, when the U.S. Congress amended the copyright act to include provisions determined (bear with us, here) in the Uruguay Rounds Agreement Act, an international treaty seeking to beef up copyright protections for artists internationally. The particulars of the act are pretty esoteric, but the effect was basically that some foreign works that had previously been in the public domain -- meaning they can be used without permission from the artist that created them -- went back under copyright protection -- meaning their use now requires permission. And these are pretty major works -- examples include Picasso's Guernica; the historically significant 1927 German expressionist film Metropolis; the 1947 postwar noir film The Third Man; Prokofiev's Peter and the Wolf; and the collected works of Igor Stravinsky. This is stuff you're probably familiar with, and that's because was prominent for years, mostly because it was free. Under the modification, it's not free anymore.

Of course, the other side of the treaty is that, under it, American artists get more copyright protection in foreign countries; the modification is a concession. The thing is, though, it's a pretty bizarre one.

Originally, the District Court struck down the suit using Eldred vs. Ashcroft as precedent -- there, the Supreme Court refused a challenge to a 1998 modification of copyright laws that extended the automatic lapse into public domain from fifty years after the artist's death to seventy -- if fifty is limited, then seventy is still limited, the court reasoned. The difference there, however, was that no contested works were actually revoked from the public domain; anything that was public remained public.

That's somewhat the case here, but not really. Here's how Golan laid it out for Law Week Colorado last year:

Pieces by a large body of foreign composers -- Igor Stravinsky, Dmitri Shostakovich and Sergei Prokofiev and literally hundreds of others -- used to be in the public domain, which means orchestras were allowed to purchase the music and perform the music. And once the orchestra purchases any piece of music, they put it in the library and use it as much as they want.

That rule actually remained in effect under the treaty -- there was a provision that any artist or institution already using a work that had been in the public domain could continue using it -- they were effectively grandfathered in. Golan's beef is that, for anyone new on the scene, the reapplication of copyright makea use of those previously affordable works prohibitively expensive; copyrighted works are "rented" on a per-performance basis. And not only would it hurt the people who wanted to use the work, Golan told Law Week, it would hurt the composers as well.

It's really harming all these composers it's supposedly protecting. With the case of Shostakovich, orchestras can't afford to play his music, so they don't. They play Beethoven and Mozart because it's public domain. In those companies, Shostakovich simply doesn't get played, so really, the one who's suffering the most is Shostakovich. Any composer will tell you that above all else, what they really want is for their music to get heard.

Well said, Golan. In the supreme court, though, his challenge is more technical; basically, the U.S. Constitution contains a "progress clause," which stipulates that Congress can extend protection to an artistic work for a limited amount of time; the question is, does revoking that protection and then re-extending it qualify as a violation of that clause?

Legally, the answer could probably go either way, in that the re-granted copyright protections are still extended for an amount of time that -- similarly to Eldred vs. Ashcroft -- is limited. Still, particularly considering that most of these works lapsed into the public domain because the artist failed to renew the copyright in the first place, it just seems fucked up to put something in the public domain and then take it back again -- didn't our parents teach us that Indian-givers are assholes?

Here's hoping that -- with the precedent, the authority and the legal footing to make the wrong choice -- the Divine Nine will make the right one.

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