Supreme Court Backs Copyrights for Older Foreign Works

January 19, 2012
Keystone Pictures/Zuma Press

Picasso is among the foreign artists, writers and composers whose works get U.S. copyright protection
under a law upheld Wednesday.

how in the hell do you take works out of the public domain when they are already used fairly and then prosecute people for it?

(WSJ By BRENT KENDALL And JESS BRAVIN) WASHINGTON—The Supreme Court on Wednesday upheld a 1994 law granting copyright protection to a large number of foreign works that had been freely available in the public domain. The ruling was a victory for the movie, music and publishing industries, which argued that granting copyright protections for the foreign works was an important step in securing reciprocal overseas rights for U.S. works. The decision means some musicians and other artists will have to keep paying to use the now-copyrighted foreign works.

Congress enacted the measure to bring the U.S. in compliance with the Berne Convention, an 1886 treaty providing for international recognition of copyrights. The court, by a 6-2 vote, said Congress acted within its powers in granting the protections.
“Congress determined that U.S. interests were best served by our full participation in the dominant system of international copyright protection,” Justice Ruth Bader Ginsburg wrote for the court.
The ruling defeated a challenge by a group of orchestra conductors, performers, educators and others who argued that Congress exceeded its powers by restricting their ability to perform, share and build upon foreign works that once had been free for use.
The Constitution authorizes Congress to grant copyrights “for limited times.” Challengers argued that authority didn’t include the power to take works out of the public domain. They also said the law violated the First Amendment because removal of the works interfered with their freedom of expression.

Google Inc. was the leading company challenging the law, in an echo of the separate battle in Washington over an Internet piracy bill that pits Google against movie studios. The search company, which didn’t respond to a request for comment, said in court papers that the restored copyrights could affect more than a million books it has scanned through its Google Books Library Project.
The ruling followed others in recent years giving Congress broad discretion over the shape of copyright. In 1998, Congress bowed to entertainment industry wishes by extending existing copyrights by 20 years, so they would last 70 years after the author’s death—to 2036, for instance, for Walt Disney. In a 2003 opinion, also by Justice Ginsburg, the court upheld that extension.
[TODO]“Today’s ruling demonstrates that the United States fulfills its international copyright obligations and will remain a world leader in protecting creative works,” Fritz Attaway, chief policy adviser for the Motion Picture Association of America, said.

Ruth Bader Ginsburg

Among the foreign works removed from the public domain were symphonies by Russian composers Sergei Prokofiev and Dmitri Shostakovich, writings by J.R.R. Tolkien and George Orwell, and paintings by Pablo Picasso.
The number of works that qualified for copyright restoration probably numbered in the millions, the U.S. Copyright Office has estimated.
Justice Stephen Breyer, joined by Justice Samuel Alito, dissented from the court’s ruling, saying the law “inhibits an important pre-existing flow of information” and is at odds with the purpose of granting copyrights: to provide incentives for creators to produce new works. Instead, the law “bestows monetary rewards only on owners of old works,” wrote Justice Breyer.
Orchestra conductor Lawrence Golan, the lead plaintiff in the case, said the law has limited the ability of smaller-budget orchestras to perform some popular foreign pieces, such as “Peter and the Wolf,” that used to be free.
Now orchestras, on average, must pay about $800 per performance of Prokofiev’s children’s classic, Mr. Golan said in an interview. “The price of the licensing fees or rental fees for playing these pieces will be cost-prohibitive,” he said.
The 1994 law granted copyrights to foreign works that never received American protection because they were published in countries that previously lacked copyright relations with the U.S. It also restored protections for foreign works that were in the public domain because they hadn’t complied with technical requirements of U.S. copyright law.
Some foreign works were denied U.S. rights for 50 or 60 years, said Eric Schwartz, a former government copyright attorney who negotiated international copyright agreements. “Some of the families of the creators are trying to get back some of the money they were denied,” he said.
Another copyright attorney, Lloyd Jassin, said that taking “a work out of the public domain in the U.S.—in this case a book published abroad between 1923 and 1989—will have an impact. It’s in effect a tax for independent publishers who might have been seeking to publish a work formerly in the public domain. A rich public domain allows for greater access to older works—and at a much lower cost.”
Justice Elena Kagan, who was a Justice Department official during earlier stages of the litigation, did not take part in the case.
The case is Golan v. Holder, 10-545.
—Jeffrey A. Trachtenberg contributed to this article.
Write to Brent Kendall at and Jess Bravin at


The growing Clarence Thomas ethics problem LOLZ… there wasn’t one

June 21, 2011
Friendship of Justice and Magnate Puts Focus on Ethics by Mike Mcintire of

New York Times investigative reporter Mike McIntire penned a hit piece on Justice Clarence Thomas for Sunday’s front page, trying to find a controversy in the funding by a friend of Thomas of a cultural museum in the justice’s hometown of Pin Point, Ga.: “The Justice and the Magnate – Friendship and Museum Project Put Focus on Ethics.” But looking past the loaded headline and lacings of ominous word choices like “ethically sensitive,” one is hard-pressed to find any hints of actual wrongdoing on the part of Justice Thomas.
Prominently placed, hostile investigations of conservative-friendly groups (that lead nowhere) are a specialty of McIntire’s. His front-page story from March 2011 accused a Tea Party group of pushing the agenda of an Indonesian corporation fighting U.S. tariffs. In September 2010 he went after the group Americans for Job Security, another group with Tea Party ties.

” Whelan pointed to a double standard in Supreme scrutiny and challenged anyone “to argue that Thomas’s friendship with, and generous favors from, someone who has had no interest in cases before the Supreme Court is somehow more problematic than Ginsburg’s interaction with the NOW Legal Defense and Education Fund.”

1. The Code of Conduct for United States Judges—which, as the article notes, does not formally apply to Supreme Court justices—sets forth canons of ethical conduct that are reasonably looked to, at least presumptively, as a benchmark for the conduct of justices (even if one reserves the possibility that those canons might apply somewhat differently to justices or that some of the sub-rules inevitably involve arbitrary line-drawing).

Canon 4 states that a “judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational [and other specified types of] activities,” but that “a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth [in Canon 4’s sub-rules].” Canon 4.C in turn states:

A judge may assist nonprofit law-related, civic, charitable, educational, religious, or social organizations in planning fund-raising activities and may be listed as an officer, director, or trustee…. Otherwise, a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose.

[A]s this Los Angeles Times article from 2004 discusses, Ginsburg authorized the NOW Legal Defense and Education Fund to name a lecture series after her—the “Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law”—and she “gave opening remarks” and introduced the speaker at the fourth installment of that series. The NOW Legal Defense and Education Fund took part (and, now rebranded as Legal Momentum, continues to take part) regularly in litigation before the Supreme Court: its database identifies its participation in a dozen or so merits cases during the first four years of the lecture series (including Lawrence v. Texas, Grutter v. Bollinger, and Gratz v. Bollinger), and a similar or higher level of participation in subsequent years (including Gonzales v. Carhart). Ginsburg took part in all those cases.…
According to the LA Times article, legal ethicist Monroe Freedman said that Ginsburg’s affiliation with the lecture series “crosses the line,” and legal ethicist Geoffrey Hazard called it “inappropriate.” By contrast, legal ethicist Stephen Gillers called it “a judgment call.” For present purposes, I see no need to resolve whether Ginsburg acted unethically. My much more modest point is simply that nothing underlying even the wildest smears that the Left has directed against Thomas and Scalia comes anywhere close to Ginsburg’s conduct.

I likewise challenge anyone to argue that Thomas’s friendship with, and generous favors from, someone who has had no interest in cases before the Supreme Court is somehow more problematic than Ginsburg’s interaction with the NOW Legal Defense and Education Fund. via
image via

If there is anything that bothers me in the points McIntire raises, it is Ginny Thomas’s political fundraising…. Half of Washington knows this trick. Tom DeLay pioneered it when he started a foundation, told big donors to give money to it, and put his wife and daughter on its payroll.  Others like Newt Gingrich soon followed suit. It may now be seem as standard operating procedure by DC types, but it is a sleazy maneuver, and at the very least public officials should be subject to full disclosure of their entire household income. via