Supreme Court to Hear Case on Copyright vs. the First Amendment

The Supreme Court recently agreed to hear Golan v. Holder, a case that could redefine the relationship between copyright and the First Amendment.

Writing for the First Amendment Center, David L. Hudson Jr recently analyzed Golan v. Holder. He writes:

In 1994, Congress passed something called the Uruguay Round Agreements Act to bring the United States into compliance with international copyright treaties. Congress passed URAA and joined the treaty, supporters say, to protect the interests of American copyright holders abroad. But opponents counter that the law impeded creators in the United States, who no longer had free access to some materials in the public domain. Both sides agree the net effect of URAA was that the United States restored copyright protection to some foreign works that had fallen into the public domain.

Two issues are identified in the legal papers before the Supreme Court.

First is whether, by removing materials from the public domain, Congress exceeded its powers under the copyright clause. The clause gives Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Second is the First Amendment question. Golan and the other petitioners contend that the law violates the First Amendment because it deprives them of access to expressive works and infringes on their ability to produce their own works.

What impact could this case have on the comics community? Joshua Simmons, a lawyer and comics fan who works with CBLDF board member Dale Cendali at Kirkland & Ellis LLP, weighs in:

In Golan, the Supreme Court will be asked to decide whether the restoration of copyright protections to certain foreign works violates either the Intellectual Property Clause or First Amendment of the United States Constitution. The comic book industry, just like creators of other copyrighted works, has an interest in seeing their works protected both domestically and abroad. However, as CBLDF and its supporters well know, First Amendment rights are at the heart of the creation, publishing, ownership and enjoyment of cutting edge comic books. As such, comic book creators, on a daily basis, straddle the divide between seeking greater protections for their works, and ensuring that their rights under the First Amendment are protected, including the ability to re-purpose works that have entered the public domain.  The Supreme Court’s decision in Golan will likely better define the line between where copyright protection ends and First Amendment rights begin.

As the current golden age of reprint comics continues to blossom, publishers and scholars of early 20th century comics from all over the world will be watching this decision with interest.

Read the analysis of Golan v. Holder by the First Amendment Center here.