Supreme Court Decision May Limit Artistic Progress

In a 6-2 decision, the high court finds that the U.S. Constitution’s promise to promote arts and sciences gives Congress the right to enter into an international treaty allowing foreign right-holders to restore copyright authority on some works that were previously in the public domain.

In the recent majority opinion, Golan v. Holder, Justice Ruth Bader Ginsburg ruled that Congress had the authority to bless an international treaty to “serve the objective of the copyright clause.”  This treaty was created in Uruguay in 1994, harmonizing intellectual property laws around the world.  Uruguay allowed many foreign-based works that had fallen to the public domain to be protected, hoping to receive reciprocity from the United States.  The Supreme Court, however, rejected the arguments that millions of copyrighted foreign works should be restored to the public domain. Among those objecting to the protection were artists (led by Golan) hoping to create derivative works of foreign compositions, films, and other artistic material.

Justice Ginsburg assured in her ruling that the protections do not exclude American artists from using foreign material completely.  For example, “Parties may continue to exploit a restored work […] and […] the treaty leaves undisturbed any fair uses of copyrighted works.”

The dissent argues that this decision will halt progress of art and that the treaty does not encourage anyone to produce a single new work because foreign rights-holders have complete authority over their material.  The dissent adds that the treaty simply rewards owners of old works already in the public domain.

How will this decision change the current copyright laws regarding public domain?  Does this mean that public domain works are never off limits for future copyright protection?  Will this decision hinder the Constitution’s goal to promote the progress of science and useful arts?

For more information, see The Hollywood Reporter.


  1. Regarding this decision, I have to agree with Justice Breyer’s dissent. As Breyer explains, one of the main goals of copyright law and intellectual property law in general is to promote new and improved works. However, in order to do this, the founding fathers knew that there needed to be incentives or else people would not be innovative. “The economic philosophy behind the Copyright Clause . . . is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” See Eldred v. Ashcroft. Copyright laws can thus be viewed as a delicate balance between the rights of creators and the rights of the general public. However, the new treaty seems to tip the scale too far in favor of authors’ rights. The new law snatches up works from the public domain and allows these “restored copyright” holders to charge fees for works consumers previously used for free. Additionally, with regards to certain derivative works “the restored copyright holder can charge what the market will bear.” The public domain has always been, and will always be, a virtual gold mine consisting of free ideas and works that people can recycle and re-use in order to improve society. In my opinion, the public domain is essential to enhancing creativity and is something that should never shrink. In order to enhance creativity, laws need to be made in order to ensure that the public domain continues to expand, not shrink.

  2. There are strong arguments supporting and opposing the restoration of copyright authority on work in the public domain. In support, art is the product of time and labor. As such, the artist deserves compensation for his/her product just the same as Apple deserves compensation for a MacBook or an iPod. One might argue that the fact that a certain amount of time has passed makes the product less desirable. However, a Picasso does not become obsolete in the way that a MacBook does.

    In opposition, art is a manifestation of expression and, as the dissent points out, its being freely available spurns further creation. Keeping art under lock and key may stifle the free flow of ideas and expression.

    Ultimately, whether or not one supports the protection of art which has fallen to the public domain, it is essential that any legal remedy used to implement this protection is narrowly-tailored. An over-broad law threatens information-sharing and free expression on the internet in the name of Intellectual Property protection.

  3. In the United States, copyrights are easier to secure and their protections tend to last longer than other forms of intellectual property. However, the rights afforded to literary and artistic expression is narrowed to the particular expression of the work, not the idea behind the property. Copyright holders can control the derivative works as well as the sale and distribution of the work, although others can make what is known as “fair use” of the expression’s medium. Yet, this Supreme Court holding seems to work against the fundamentals of intellectual property law in the United States and will inevitably stymie an entire field of creativity. The whole purpose behind intellectual property laws is to balance the interests of the creator against the interests of the public good in using such innovations and creative expressions. Now, as Justice Breyer noted in his dissent, more and more people will be discouraged from producing derivative works because of the monetary obligation to the owners of the original works. Ginsburg tries to make light of the situation by stating that parties can continue to exploit the original copyrighted works until the owner gives notice. Yet, could this not lead to potentially expensive international litigation over the artistic and literary expressions of individuals halfway across the globe?

  4. I agree that this decision will halt the artistic process and prevent creative works from being produced. Stating that the parties can continue to exploit original copyrighted works until the owner gives notice is an invitation to unnecessary litigation that could be prevented. This problem presents new issues of conflicts of laws, international forum shopping, and hostility between countries. The treaty that harmonizes these laws does not address the issue that different countries will interpret the laws differently and thus, the outcomes internationally will vary greatly.

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