It is now necessary to check copyright status of foreign origin works in order to avoid copyright infringement. Many works that were free to use are now back in copyright. In a January 18, 2012 decision1, the Supreme Court upheld a law, the URAA2, that takes many foreign origin works out of the public domain. The law restores copyrights in the United States on all works that were still in copyright in their countries of origin as of January 1, 1996. The law is the United States’ implementation of a section of a treaty3 that seeks to equalize international recognition of copyrights among 162 countries.
Classic movies that were formerly in the public domain include Metropolis (1927), Things to Come (1936) from the H.G. Wells novel, and The Third Man (1949). They are now back in copyright. The music of Igor Stravinsky which had formerly been in the public domain is now in copyright in the United States.
The Court, in effect, said that the Constitution gave Congress the right to do pretty much as it pleases with respect to copyright law. The petitioners, people and entities, had been using works that were in the public domain. The decision has left them with a situation in which they must abandon investments in enterprises which were perfectly legitimate expressions of First Amendment speech. The lower court had found that, “Congress could have complied with the Convention without interfering with Plaintiffs’ protected speech.” Many in the legal community feel that the Supreme Court allowed Congress to exceed its Constitutional authority. Apparently, ideology played no part in the result. The opinion was written by Ginsburg and joined in by Scalia. The dissent was written by Breyer and joined in by Alito.
Exercise caution. We do not yet know how intense the avalanche of copyright infringement suits will be.
1. Golan v. Holder, Case No. 10–545, January 18, 2012, 565 U.S. ___ (2012)
2. Uruguay Round Agreements Act (URAA), 17 U.S.C. 104A (1994), URAA §514
3. Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, as last revised at Paris on July 24, 1971, 1161 U.N.T.S. 30