[LINK] Case on US Retrospective Copyright Extension

Roger Clarke Roger.Clarke at xamax.com.au
Fri Oct 7 08:42:34 AEDT 2011

Spirit of Hendrix invoked in law suit
Adam Liptak
The New York Times
Republished in The Sydney Morning Herald
October 7, 2011

JIMI HENDRIX made an appearance in the US Supreme Court this week in 
an argument over whether Congress acted constitutionally in 1994 by 
restoring copyright protection to foreign works that had once been in 
the public domain.

The affected works included films by Alfred Hitchcock and Federico 
Fellini, books by C.S. Lewis and Virginia Woolf, symphonies by 
Prokofiev and Stravinsky and paintings by Picasso.
The suit challenging the law was brought by orchestra conductors, 
teachers and film archivists who say they had relied for years on the 
free availability of such works.

Chief Justice John Roberts posed the general question this way: ''One 
day I can perform Shostakovich. Congress does something. The next day 
I can't. Doesn't that present a serious First Amendment problem?''

Then Roberts, a pioneer in the citation of popular music in legal 
discourse, asked the question slightly differently, invoking Hendrix, 
the great rock guitarist, to test the limits of the government's 
position. ''What about Jimi Hendrix? He has a distinctive rendition 
of the national anthem, and assuming the national anthem is suddenly 
entitled to copyright protection that it wasn't before, he can't do 
that, right?''

The Solicitor-General, Donald Verrilli, said there were good reasons 
to allow Congress to restore copyright protection to works that had 
entered the public domain, even at some cost to free expression.

Responding to the Chief Justice's hypothetical question, Verrilli 
said that ''maybe Jimi Hendrix could claim fair use''.

The 1994 law applies, he said, to foreign works that had not been 
eligible for copyright protection before the US joined an 
international convention. The terms of the newly copyrighted works, 
he added, expire on the same day they would have had they been 
copyrighted since their creation.

Justice Sonia Sotomayor said there was nothing unusual in granting 
copyright protection to works that had once been in the public 
domain. In 1790, she said, Congress ''took a whole body of public 
works and gave them copyright protection the day they decided to pass 
the copyright law''.

Anthony Falzone, representing the challengers to the law, disputed 
that as a historical matter saying ''that was the first copyright 
act, and Congress established a baseline''.

There is reason to think, Verrilli told the court, that US authors 
and artists will be treated better abroad because foreign authors and 
artists have received expanded copyright protection in the US.

Falzone questioned that. Congress, he said, ''took speech rights of 
250 million Americans and turned them into the private property of 
foreign authors, all on the bare possibility that might put more 
money in the pocket of some US authors''.

Roger Clarke                                 http://www.rogerclarke.com/
Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
                    Tel: +61 2 6288 1472, and 6288 6916
mailto:Roger.Clarke at xamax.com.au                http://www.xamax.com.au/

Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW
Visiting Professor in Computer Science    Australian National University

More information about the Link mailing list