Is There Still a Public Domain in Copyright Law?

March 12, 2014

(c) 2012.  Shanen R. Prout.  All rights reserved.

In January 2012, the United States Supreme Court held that certain original works of authorship that enter the public domain can have their copyrights restored.  The case is Golan v. Holder, Case No. 10-545 (Jan. 18, 2012).  The works affected by this new case law may number in the millions and may include famous books, films, symphonies and musical compositions, and paintings.  The Supreme Court’s decision could not only significantly affect the original copyright owners and their estates and successors, but also anyone who wishes to incorporate public domain material into their own works, particularly those creating derivative works, such as publishers, musicians, filmmakers, playwrights, directors, orchestra conductors, teachers and academics.  The Court’s decision opens the door for heightened risk of copyright infringement.

Golan v. Holder dealt with the constitutionality of a portion of the Copyright Act, Title 17 U.S.C. Section 104A, that Congress enacted in 1994 to comply with international law known as the Berne Convention.  Section 104A permits certain works that had previously entered the public domain to have their copyright reinstated.  However, these protected types of works can only be those that were not authored in the United States and were not protected in the U.S. for the following reasons:

  • The work is not in the public domain in the work’s source country because of expiration of the copyright term;
  • The work is in the U.S. public domain because of (1) noncompliance with formalities imposed at any time by U.S. copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements, (2) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972 (U.S. copyright law did not protect sound recordings before 1972), or (3) lack of national eligibility;
  • The work was exempt from copyright protection at the time of publication;
  • The work has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, the work was first published in an eligible country and not published in the U.S. during the 30-day period following publication in such eligible country; and
  • If the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, the work is a sound recording.

In Golan v. Holder, several orchestra conductors, musicians and music publishers sued the U.S. government and argued that they relied on the free availability of these public domain works in creating derivative works.  The plaintiffs challenged the constitutionality of Section 104A.  The Court’s majority upheld Section 104A, stating that it does not unduly limit the First Amendment and that it supports the central purpose of copyright law to promote the progress of science and useful arts.  The dissenting justices of the Court argued that Section 104A does not support the underlying purpose of copyright law because it does not directly result in the creation of new works and the majority failed to consider the importance of free expression, which would be limited by the extended monopoly being granted to works with restored copyrights.

This decision is important because it means that the public domain is clearly no longer a refuge for creative types to turn to in practicing their arts.  Even if a work has entered the public domain, it may later exit the public domain—such a rule provides little to no predictability against one later being sued for copyright infringement.  As Justice Ruth Bader Ginsburg stated, “Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit.”

If you are considering using works that you believe are in the public domain, we encourage you to contact us to assist with determining whether a work falls within the public domain under U.S. copyright law and whether the work may be restored.

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