The fight for Peter and the Wolf: U.S. Supreme Court upholds the removal of masterpieces from the public domain

United States Supreme Court, Decision of 18 January 2012, No. 10-545, Golan v. Holder

In a 6-2 vote, the United States Supreme Court upheld a sweeping congressional amendment to the U.S. Copyright Act that "restored" copyright in works including some of the world’s most beloved masterpieces.

Countless works, including Pablo Picasso’s La Guernica, Sergei Prokofiev’s Peter and the Wolf and C.S. Lewis’s The Chronicles of Narnia, were once in the public domain in the United States but have since had their copyright restored by a congressional amendment to the U.S. Copyright Act. This amendment and its far-reaching impact on those whose work depends on the free, unrestricted use of materials in the public domain were at the heart of a decade-long dispute in Golan v. Holder. The case reached its final conclusion on January 18, 2012 by a 6-2 vote of the U.S. Supreme Court.

The genesis of the case reaches back to 1886, when the Berne Convention for the Protection of Literary and Artistic Works was signed into force. The Convention, which now includes 165 contracting parties, established an international copyright system based on mutual recognition of copyright between member states. The United States did not accede to the Convention until 1988 when Congress enacted the Berne Convention Implementation Act, which went into effect on March 1, 1989. At that time, Congress expressly declined to implement Article 18 of the Convention, which effectively required copyright restoration for works of foreign authorship still under copyright in their source country but never copyrighted in the United States.

A few years later, Congress reversed its position. As part of multilateral trade negotiations in connection with the General Agreement on Tariffs and Trade (GATT), the United States agreed to implement Article 18, incorporating it as §514 of the Uruguay Round Agreements Act (URAA). Section 514 amended the U.S. Copyright Act to extend copyrights to foreign works (first published between 1923 and March 1, 1989) for the term of protection those works would have been granted had they been copyrighted in the United States in the first place.

Effective January 1, 1996, a large number of foreign works, including works such as Prokofiev’s Peter and the Wolf once freely performed by school orchestras like the one led by Lawrence Golan, the named petitioner in Golan v. Holder, had their copyright restored in the United States. High and, in certain cases, prohibitive permission fees imposed for the use of such newly copyrighted works soon followed – a circumstance denounced by the Golan dissent, "If a school orchestra or other nonprofit organization cannot afford the new charges…They will have to do without – aggravating the already serious problem of cultural education in the United States."

The Golan petitioners challenged the constitutionality of §514 of the URAA. They argued that: (1) §514 exceeded the authority granted by the Copyright Clause of the Constitution, which empowers Congress: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors…the exclusive Right to their…Writings." Congress, they contended, had set the “limited time” of copyright for pre-March 1, 1989 foreign works at zero years when it previously denied those works copyright protection, and nothing in the Copyright Clause authorizes Congress to restore that limited term once the works were allowed to fall into the public domain; (2) the removal of public domain works abridged their pre-existing First Amendment right to use those works freely for their expression; and (3) copyrighting works created decades before does not promote the creation of new works.

The Supreme Court rejected all of these arguments, relying heavily on its opinion in Eldred v. Ashcroft, 537 U.S. 186 (2003), that upheld Congress’s broad authority to alter the "limited times" of copyrights when it extended existing terms for the life of the author plus 70 years. In applying Eldred, the court wrote, "The text of the Copyright Clause…contains no ‘command that a time prescription, once set, becomes forever fixed or inalterable.’ " It also applied Eldred’s rejection of "the notion that ‘the only way to promote the progress of science [is] to provide incentives to create new works.’ " The court’s decision was strongly compelled by the U.S. interest in bringing the United States into full compliance with the Berne Convention – toward harmonizing the U.S. copyright regime with the international community – to ensure that U.S. creators receive the benefit of copyright protection in their works abroad.

And what of Peter and the Wolf? Answered the court: "It must be obtained in the…same marketplace, of course, that exists for the music of Prokofiev’s U.S. contemporaries: works of Copland and Bernstein…that enjoy copyright protection, but nevertheless appear regularly in the programs of U.S. concertgoers."