Tuesday 8 March 2011

Supreme Courts address questions of artistic copyright

While the UK Supreme Court is this week considering whether the Star Wars Imperial Stormtrooper helmets are works of art covered by copyright law, on the other side of the pond the US Supreme Court has agreed to review a decision of the 10th Circuit Court that Section 514 of the 1994 Uruguay Round Agreements Act, which restored copyright protection to various foreign works of art that were previously in the public domain in the US, is not contrary to the First Amendment.

By way of background, the US enacted the URAA after signing trade agreements in the Uruguay Round General Agreement on Tariffs and Trade in April 1994. The aim of the URAA was to enable the US to comply with its international obligations in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), which requires that its signatories comply with the Berne Convention for the Protection of Literary and Artistic Works, and extend copyright protection to all works of foreign origin whose term of protection has not expired. Section 514 of the URAA implemented Article 18 of the Berne Convention and restored copyright in foreign works and thus removed them from the public domain in the US/

In Golan, Lawrence, et al v Holder, Att’y Gen., et al (United States Court of Appeals for the Tenth Circuit, Case Nos.:09-1234, 09-1261, June 21, 2010), the plaintiffs were orchestra conductors, educators, performers, publishers, film archivists, and motion picture distributors who have relied on artistic works in the public domain for their livelihoods. They performed, distributed, and sold public domain works. Accordingly, when the URAA came into force, the plaintiffs objected since they were either prevented from using such works or were required to pay licensing fees to the copyright holder. Therefore, the plaintiffs filed an action challenging the constitutionality of the extension of the copyright in these works.

The district court initially granted plaintiffs’ motion for summary judgment, concluding that Section 514 of the URAA violated plaintiffs’ freedom of expression under the First Amendment. This was reversed by the 10th Circuit Court in June 2010 which held that the district court had erred in ruling that Section 514 violated plaintiffs’ freedom of expression because Section 514 advanced a substantial government interest, and did not burden substantially more speech than necessary to advance that interest, and was therefore consistent with the First Amendment.

Now, however, the Supreme Court has granted the petition for a writ of certiorari. In other words, it has agreed to review the decision.

It is not clear when the decisions of either of the Supreme Courts will be handed down, but both will be extremely important to resolving questions of artistic copyright.

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