Prokofiev and Shostakovich: Public Domain No More
Thursday, January 19, 2012 - 06:39 PM
The Supreme Court upheld a law Wednesday giving U.S. copyright protection to paintings by Pablo Picasso, films of Alfred Hitchcock, music from Igor Stravinsky and millions of other works by foreign artists that had been freely available.
The justices said in a 6-2 decision Wednesday that Congress acted within its power when it extended protection to works that had been in the public domain. The law's challengers complained that community orchestras, academics and others who rely on works that are available for free have effectively been priced out of performing "Peter and the Wolf" and other pieces that had been mainstays of their repertoires.
The case concerned a 1994 law that was intended to bring the U.S. into compliance with an international treaty on intellectual property. Without it, American artists might have found it hard to protect their work in certain countries that lacked specific copyright arrangements with the United States.
The law requires people to ask permission or pay royalties before copying, playing or republishing foreign works that previously could not have been copyrighted in the United States.
The court ruled in 2003 that Congress may extend the life of a copyright. Wednesday's decision was the first time it said that published works lacking a copyright could later be protected.
"Neither congressional practice nor our decisions treat the public domain, in any and all cases, as untouchable by copyright legislation. The First Amendment likewise provides no exceptional solicitude for works in the public domain," Justice Ruth Bader Ginsburg said in her opinion for the court.
But Justice Stephen Breyer, writing for himself and Justice Samuel Alito, said that an important purpose of a copyright is to encourage an author or artist to produce new work. "The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works," Breyer said.
University of Denver music professor Lawrence Golan was the lead challenger to the law. He said the ruling will effectively prevent orchestras in small and medium-sized cities as well as high school and university ensembles from performing works by 20th century composers such as Shostakovich and Stravinsky because it will be too expensive. Works by Mozart and Beethoven, meanwhile, remain in the public domain and won't require prohibitively expensive fees each time they're performed.
"This ruling just eliminated a big chunk of the repertoire, mainly the middle of the 20th Century," said Golan, who conducts the university's Lamont Symphony Orchestra and the Yakima Symphony Orchestra in Washington.
Golan, a violinist, said he had hoped to have the Yakima orchestra open its next season with a celebratory Shostakovich concert but, following Wednesday's ruling, he plans instead to feature a work by Tchaikovsky not covered by the law.
Justice Elena Kagan did not take part in the case because she worked on it while serving in the Justice Department.
The case is Golan v. Holder, 10-545.
- By Mark Sherman. Associated Press writer Colleen Slevin in Denver contributed to this report.