Written by Shannon Mo, Associate in San Francisco

Picasso’s Still Got It.  Or doesn’t he?

The Supreme Court agreed last month to hear a case, Golan v. Holder, addressing whether Congress acted constitutionally in 1994 when it restored copyrights to a handful of foreign works — hugely important works including Picasso’s “Guernica,” films by Alfred Hitchcock, and symponies by Stravinsky — works which previously belonged to the public.

A similar issue was heard almost nine years ago when the Court considered whether copyrights for works not yet in the public domain could be extended by 20 years at Congress’ discretion, eventually ruling that extensions for works not yet in the public domain are permitted.  In the 2003 Eldred v. Ashcroft case (537 U.S. 186), the court ruled that the extension did not exceed Congress’ power under the Copyright Clause.

However, the question remains: when, if ever, does Congress have the constitutional power to revive copyright protection once it has expired for a creative work?

This question may finally be answered.  

In 1994, the Uruguay Round Agreements Act (URAA) implemented the Uruguay Round General Agreement on Tariffs and Trade (GATT), which includes an agreement on the Trade-Related Aspects of Intellectual Property (TRIPS).  The act took once freely accessible works and put them back under copyright protection.  The case now before the Supreme Court, Golan v. Holder, tests whether the Copyright Clause gives Congress any authority to take a work out of the public domain — that is, to restore its copyright shield once that has expired.  Second, it tests whether the 1994 law at issue violates the free speech rights of those who, before the law was passed, freely performed or distributed works that had entered the public domain.

The plaintiffs’ attorneys argue the Constitution was meant to create incentives for the creation of art and the progress of science, not to create timeless monopolies.  “If Congress is free to restore material from the public domain at will,” the petition for review argues, “then the public’s federal right to copy and to use public domain material this Court has recognized may evaporate at any time.”

The government, on the other hand, represents that the 1994 decision did not impair the constitutional structure, or free speech rights, and was designed to apply to foreign works by authors unfamiliar with United States law, or previously ineligible for protection.  In its defense, the government argued the 1994 decision allows works to expire as if they had been protected since creation.

This case is incredibly important in the copyright evolution in the United States.  All eyes will be watching.