Finnegan's monthly review of essential decisions, key developments, evolving trends in trademark law, and more.
Summer 2012 Issue


Free Samples?  At Costco, Yes.  In Rap and Hip-Hop, No!

“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 and were protected by foreign copyright, but had entered the public domain in the United States.  Those works are 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 passed 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 protection.

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 U.S. Constitution, challenging Congress’s right to resurrect works whose copyrights had died.  They also complained that the law trammeled their freedom of speech.

The U.S. Supreme Court, in a 2012 opinion by Justice Ginsburg, rejected the challenge across the board in Golan v. Holder.  The Court confirmed Congress’s power to restore copyrights, just as the Court had previously affirmed Congress’s power to lengthen their term.  See Eldred v. Ashcroft.  The Golan 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 Copland’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.