Tag Archives: public domain

Once You’re Gone, You Can Never Come Back? Golan v. Holder Takes Copyright to New Heights

“Out of the blue and into the black.  They give you this but you pay for that.  And once you’re gone, you can never come back.”  Neil Young

In “Hey Hey, My My,”  Neil Young lamented the fates of Elvis and Johnny Rotten.  But his lyrics could have applied as well to the fates of  many songs, books, and other creative works that originated outside the United States, were protected by foreign copyright, but had entered the public domain in the United States.  Those works  free for anyone to perform, reproduce, or use in this country.  That situation was a boon for orchestras, singers, publishers and others, who had a trove of material to use for free.  At least that was the case until the U.S. Congress stepped in.  In 1994, Congress passes a law to implement treaty obligations imposed by a global agreement–the so-called Uruguay Round.  The law essentially rescued a large volume of foreign based works from the public domain and put them back under copyright.

The law threatened to impose a hefty toll on users who had become accustomed to using those works on the public domain’s “freeway.”  So a coalition of orchestra conductors, educators, performers, motion picture distributors, and others challenged the law.  They argued that the law violated the Constitution, challenging Congress’s right to resurrect works whose copyrights had died.  They also complained  that the law trammelled their freedom of speech.  The case is known as Golan v. Holder.

The U.S. Supreme Court, in a 2012 opinion by Justice Ginsburg, rejected the challenge across the board.   The Court confirmed Congress’s power to restore copyrights, just as the Court had previously affirmed Congress’s power to lengthen their term.    The Golan v. Holder decision confirms that works protected by foreign copyright also enjoy the protections of the U.S. Copyright law for the rest of their term in their home country, even if those works had entered the public domain in this country.  And the Court showed no sympathy for the challengers’ claims that plucking works from the public domain would put free-riding performers on the sidelines or in the poorhouse.

So now, orchestras will have to pay to play Prokofiev’s Russian-born Peter and The Wolf,  just as they pay to perform Aaron Copeland’s quintessentially American “Fanfare For The Common Man.”  But the United States will be able to honor its Uruguay Round obligations, U.S. copyright law will be harmonized with international standards, and, to paraphrase Neil Young, everyone can “Keep on Rockin ‘In the Free World,” just not for free.

Quote of The Day:  “If music be the food of love, play on. ”   William Shakespeare

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View From The Bridge: Munch’s “Scream”

“Yaaaaaaaaaaaaaaaaaay!! ”  We Won’t Get Fooled Again, The Who.

Edvard Munch painted it over a century ago.  Even then, he must have anticipated The Scream’s  potential to become an icon for the ages.  He painted at least four versions.  Three hang in museums.  And as reported on NPR this morning, the fourth, in private hands, goes on the auction block today.  It could fetch upwards of $80 million. www.npr.org/2012/05/02/151706441/scream-still-echoes-after-more-than-a-century

The primal image of a figure on a bridge, standing under the swirl of a blood-red sky, hands clutched over the ears, mouth agape in a silent wail of terror,  is perhaps the purest and most succinct expression of humanity’s panicked premonition of the horrific events about to unfold as the 20th century loomed.

It also makes for a great satire and advertising fodder.  The Scream has been employed, adapted, reworked, and reimagined so many times that it has entered into the realm of cliché.   Warhol gave it his Factory treatment, M & M’s used it in an ad campaign, and John Hughes paid homage to it in “Home Alone,” having young Macauley Culkin mimic the “Screamer’s” pose when his character, Kevin, splashes himself with astringent after shave.

So today, as Southeby prepares to collect a hefty commission for hawking The Scream, art critics and art lovers can pay homage to Munch and his tortured genius.  Advertisers and merchandisers, on the other hand, can give thanks to the public domain, which makes iconic images such as The Scream and The Mona Lisa, fair game for commercial use.

QUOTE OF THE DAY: “Nature is not only all that is visible to the eye… it also includes the inner pictures of the soul.”   Edvard Munch

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