Supreme Court Invokes Copland, Hendrix in Copyright Case

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Thursday, October 06, 2011 - 10:05 PM

Justice Ruth Bader Ginsburg invoked Aaron Copland. The chief justice countered with Jimi Hendrix.

The high court's generational divide was on display Wednesday as the justices heard arguments about whether Congress acted properly in extending U.S. copyright protection to millions of works by foreign artists and authors that had been in the public domain - meaning they could be performed and used in other ways without paying royalties.

Community orchestras, academics and others who rely on uncopyrighted works are challenging a 1994 law that made copyrights available to the foreign works. Google, with its You Tube and digital art and library projects that depend on works in the public domain, is backing the challenge. Composers, authors, songwriters, photographers and others who depend on copyright protection are urging the court to uphold the law.

Copland and Hendrix were Americans, but justices used them to illustrate differing views of the case.

For the 78-year-old Ginsburg, the case appeared easy. She talked about two Russian-born composers, Dmitri Shostakovich and Igor Stravinsky, whose works were never copyrighted in the United States.

A copyright allows artists, or the copyright holder such as a deceased artist's estate, a fixed period of time in which they can permit or deny others the right to use or reproduce their work or demand a royalty payment for doing so.

"What's wrong with giving them the same time Aaron Copland got?" Ginsburg asked the lawyer representing the law's challengers.

Chief Justice John Roberts was 14 years old when Hendrix performed his "distinctive rendition" of the "Star Spangled Banner" at the Woodstock music festival. Roberts, now 56, voiced concern that Hendrix's freedom of expression could have been compromised under the government's argument.

"Assuming the national anthem is suddenly entitled to copyright protection that it wasn't before, he can't do that, right?" Roberts said.

The court ruled in 2003 that Congress may extend the life of a copyright, but it has never said whether published works lacking a copyright could later be protected. The case argued Wednesday concerns a 1994 law that was intended to bring the United States in line with an international agreement.

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Comments [6]

Francis Buchwalder

Michael, I have no kind words for one of history's worst b@st@rds, Josef Stalin, but the Tsarist government preceded him in failing to join any international copyright agreement.

For a very long time, the Russians seem to have simply blown off the rest of the world when it came to protecting their own artists. It is nevertheless true that many western music organizations forwarded the normal royalties to Russian composers as if their country had been a signatory to international agreements.

Whether the composers actually received the payments, I am not certain. Many communist countries highhandedly swallowed the majority of any monies coming in from abroad payable to their citizens.

Oct. 11 2011 09:28 AM
Michael Meltzer

Robert's rule is in order.

Oct. 08 2011 03:12 PM
Robert

I think it would be dangerous to comment on a supreme court hearing filtered through the AP.

Oct. 07 2011 11:02 PM
Michael Meltzer

Stravinsky's copyright is editorial. It cannot and does not prevent anyone from performing or reproducing the original Star Spangled banner, or arranging it in any manner they see fit, except Stravinsky's.

Oct. 07 2011 12:16 PM
Rich from The Bronx

With respct to the Chief Justice the Star Spangled Banner has been copyrighted. By who? Well, Stravinsky who wrote a choral and orchestral version of it. When WQXR left 96.3 they signed off with the orchestral version. Interestingly Stravinsky was briefly arrested in Boston in the 1940's when a local politician thought his arrangement was disrespectful. You can search the web and find his mug shot. Not a pretty picture.

Oct. 07 2011 09:28 AM
Michel Meltzer

Roberts should know better. In the old law, the new law, and before & after 1994, the protections of authorship are separate from the protections under "editorial copyright" (Hendrix, etc.), and are apples and oranges.
Editorial copyrights of revisions and arangements of already existing works are more strictly defined and only pertain to the points of revision, not to the original work itself. No one can copyright the Star-Spangled Banner original.
The lack of protection of Stravinsky's early works, Shostakovich, Profofiev, Kabalevsky, Khachaturian and many others was no fault of theirs, they were robbed of protection by Stalin and successors refusing to join the International Copyright Convention, and the Soviet Union paid no royalties to our composers but usurped their output freely as well.
In the U.S. reprinting the works of Soviet composers before 1994, we were playing tit-for-tat, but it was the composers who were caught in the squeeze and got hurt, not the Soviet government, which had been the real culprit.

Oct. 07 2011 02:11 AM

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