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.


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Comments [8]

Michael Meltzer

I doubt if you have ever been put out of business by illegal copying.
I have!(1978). If you haven't been there, you don't know.

Jan. 21 2012 11:20 PM
Silversalty from Megaupland

LOL! Oh. Laugh out loud!

It's very very important to make certain that the farmers get paid or there won't be any food. Especially since in cases like this we're dealing with long dead farmers.

And that's just one of the obvious BS aspects of copyright and IP laws, treaties and rulings. They're about giving control of the future to select wealthy entities (personhoods?) through their purchase, usually on the cheap through market control, of the past.

Jan. 21 2012 07:41 PM
Michael Meltzer

Copyrighted music is inaccessible only when copyright holders wish that to be so. With very few exceptions, that is not the case. Usually, composers and publishers are on the job 24/7 to keep their music out there.
Supermarkets and resaurants profit handsomely from the sale and preparation of food. But , the farmer has to be paid first, or eventually there's no food. That's what copyright law is all about.

Jan. 21 2012 07:08 AM
Guney Ozsan from Istanbul

This will only result in new composers giving up their rights voluntarily. Orchestras will play less new music, people will become more distant to the evolving musical language. That's a great idea! How can this encourage to write new music knowing that now it is harder to get it performed? Continue to protect creator's rights this way.

Jan. 21 2012 06:13 AM
Michael Meltzer

You never, never, never "pull out of a treaty." Most treaties aren't about Peter and the Wolf, they are about borders, shipping lanes, fishing, air rights, mineral rights, things that countries go to war about. We've had enough trouble with Stalin's lawless examples to the rest of the world, if we were to break any treaties that would send a message everywhere that the concept of international law was obsolete.
When others make mistakes, we expect them to eat them. Sometimes, it is we that have to grin and bear it. These copyrights will expire, but 25 years after what would have otherwise been expected. We really can live with that.

Jan. 20 2012 12:01 PM
Bruce - p.s. from NJ

note obvious correction in my prior comment about the court decision balance; clearly 4 conservatives, not 5, along with 2 liberals. (again noting it's business and law, not liberal/conservative)

And a laugh I forgot about SOPA/PIPA's House author, Lamar Smith (R-Tx), whose official campaign website violated his own bill... this article tells the story, with pics and verification:

Jan. 20 2012 09:56 AM
Bruce from NJ

So many aspects to this case! Without knowing the entire case history, two things stand out as primary: 1. If you're a community interest, you're screwed. 2. If you're a grandchild of one of the now-copyrighted composers whose music was previously in the public domain, you're likely very happy you can now make money off the work. Correctness of the decision depends who you are. e.g. in the old USSR, music and other inventions belonged to all the people, thus in the public domain. In capitalist countries, profit comes before people - by definition, and certainly by practice to varying degrees by country.

Then there's the US Supreme Court - in my opinion the anachronism of the ages (did many people at the time of founding of the U.S. ever live to 80 years old, keeping antiquated beliefs in place so long?). Forget that this decision was by 5 conservatives and one alleged Liberal from Obama, just as the eminent-domain-for-private-profit case a few years ago (Ct?, R.I.?) was condemned by conservatives as liberal overreach for profit when it was actally their interpretation of capitalist legalities.

Looking at what just happened with the SOPA/PIPA bills the other day and the blackout of thousands of websites on the Internet to protest our idiot lawmakers trying to allow the enternainment industry to outright censor websites with content they dislike - without due process, they likely could not enact an anti-progress/anti-community law as this decision by the court just made the case - with the help of a previously upheld anacrhnistic treaty.

There are many solutions, one of them for the Congress to actually correct the court decision, to possibly pull out of the treaty and/or get it killed completely, or better yet -- for the music community that CAN afford the prices of these works to organize with those who cannot afford it, and boycott the purchases of all these works until the copyright owners realize it wasn't in their best interest to pursue this case against the public. And beyond that, for people in the U.S. to realize these kinds of decisions depend so much on how incorrectly they vote for Presidents like the Bushes and the Senators who confirm their misjudgements for the court.

Jan. 20 2012 09:37 AM
Michael Meltzer

The case isn't being fully stated. The Russians were offered the special additional protection to induce them to finally join the International Copyright Convention back in the 1990's. Whether it's just, fair and practical should have been debated then, not now.
Rolling back the terms now would simply be reneging on an agreement that was really in the nature of a treaty.

Jan. 20 2012 08:09 AM

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