Regular readers of this column may recall the long-running saga of Golan v. Holder,1 which the U.S. Supreme Court finally resolved in January after more than 10 years of unpredictable and fascinating litigation. The case began as Golan v. Ashcroft during the first term of the Bush administration and was re-captioned Golan v. Gonzales, Golan v. Mukasey and finally Golan v. Holder as various Attorneys General were appointed. It concerned a challenge by an orchestra conductor and others in the classical music world against a Clinton-era statute, 17 U.S.C. 104A, that restored copyright in certain non-U.S. works that had lapsed into the public domain for various technical reasons, such as failure to renew, publication without notice, or lack of copyright relations between the United States and the source country of the work.
The Golan petitioners argued inter alia that the statute was a violation of their First Amendment free speech rights because it impaired their ability to make unfettered use of musical compositions—like Sergei Prokofiev’s “Peter and the Wolf”—that they had previously performed, published and recorded without restriction. The Supreme Court, in a 6-2 majority opinion by Justice Ruth Bader Ginsburg, upheld the statute and in the process clarified several significant issues concerning the relationship between copyright and the First Amendment. Justice Steven Breyer, joined by Justice Samuel Alito, dissented from the result largely on the grounds that neither the Copyright Clause nor the First Amendment permitted Congress to remove works from the public domain. Justice Elena Kagan took no part in the decision.
First Four Decisions
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