by Betsy Gomez

Last year, the Supreme Court agreed to hear Golan v. Holder, a case that pitted copyright law against the First Amendment. This week, the Supreme Court passed down their decision on the case, a 6-2 vote that upheld the Uruguay Round Agreements Act that extended copyright protection to creative foreign works that had previously been in the public domain in the United States.

The decision is considered a blow to free speech because Golan and fellow petitioners argued that the removal of works from the public domain — works by Igor Stravinsky, Virginia Woolf, Alfred Hitchcock, and more — violates their First Amendment right to use the works to express themselves. Golan further argued that Congress overreached when they passed a law that removed the works from the public domain. Because the Supreme Court upheld the law, works that were once free to use now require payment to do so. As an example, an orchestra that plays a Stravinsky symphony may now have to pay for that right.

Ken Paulson, the President of the First Amendment Center, took a look at the decision. In his analysis, he writes:

Let’s be clear about what free speech is. In addition to being an individual’s personal expression, it includes the performance of a work that someone else has created. It is an exercise of free speech to stage a play or conduct a symphony. It’s also free speech when you mash up multiple songs into a new work.

With its ruling in Golan v. Holder, the Supreme Court has now upheld a law that in effect takes millions of works out of the public domain. If Americans choose to use, present or republish some of these works to express themselves, they may well have to pay a licensing fee. This includes books by Virginia Woolf, symphonies by Igor Stravinsky and movies by Alfred Hitchcock.

The odd thing — and justices Stephen Breyer and Samuel Alito noted this in dissent — is that the Court’s ruling upholding copyright for foreign works doesn’t encourage creativity, which is the reason copyright was established more than two centuries ago.

“The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works,” Breyer wrote.

The Supreme Court has extended copyright protection in the past, but never to works that were already in the public domain. The upshot is that the public loses, free speech suffers and Stravinsky doesn’t need the money.

You can read all of Paulson’s analysis here.

What impact does the Golan v. Holder decision have for comic books? It remains to be seen, but it could have implications for the translation and reprinting of foreign comics, could influence the ability of scholars to review such works, and could impact the incorporation of some foreign works into new creative work. Regardless, the decision is a blow to the creative free expression of many people.

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Betsy Gomez is the Web Editor for CBLDF.