As the holiday season nears, conductors around the country will gear up for performances of The Nutcracker, written by Russian composer Pyotr Tchaikovsky and first performed in 1892.
Lawrence Golan is one of those conductors, slated to lead an orchestra for four performances of the Tucson Regional Ballet Company's rendition of the holiday classic. The Nutcracker is a ballet in the public domain, a pool of classics that can be performed without any copyright restrictions or costly licensing fees.
The public domain allowed Walt Disney to produce an animated version of Peter and the Wolf by Sergei Prokofiev. On a smaller scale, a film company is able to distribute Alfred Hitchcock's early British films on DVD.
These cultural works were in the public domain in the first place because they were created outside the U.S. and copyright protections only go so far as a country's border. To have a work protected outside its country of origin, nations must have mutual agreements to respect each others' intellectual property protections.
One multinational deal the U.S. Congress ratified in 1994, called the Uruguay Roundtable Agreement, included a provision that granted foreign works copyright protection in America, even if they never enjoyed such rights here in the past, thus taking them out of the public domain.
Can Congress Shrink the Public Domain?
In a case before the U.S. Supreme Court, Golan is challenging Congress' authority to shrink the public domain, affecting possibly millions of foreign works.
During oral arguments Oct. 5, the conductor's attorney described the public domain as the collection of things for which Congress has said protection is done, it's over, we've hit the limit, it's done.
But not for Pippi Longstocking, Fritz Lang's Metropolis, J.R.R. Tolkien's Lord of the Rings trilogy, all of which now have copyright protection in America.
For the first time, the U.S. had let that pool of accessible work dry up a bit.
For conductors like Golan, that means spending hundreds of dollars on licensing fees. There is also the threat of litigation whenever a copyright-protected work is used, perhaps explaining the American Bar Association's court brief arguing against Golan.
The public domain, Golan and his fellow plaintiffs wrote, promotes the diffusion of knowledge, and provides the raw materials to expand it.
In the U.S. Constitution, Congress is granted authority 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. It is carefully crafted language that balances the right of an author to hold rights to a creation with the public's need for knowledge. With the length of copyrights limited, other generations can enjoy and build upon past works.
The Obama administration's Supreme Court lawyer, Solicitor General Donald Verrilli, contended that the law granting copyright protection to foreign works still falls within the meaning of that clause in the Constitution. The copyright protections would still end at the same time as if the foreign work had been protected since it was created, he argued.
Would Change Fail to Promote Sciences/Arts, or Restrict Expression?
Beyond failure to promote sciences and useful arts, Golan's attorney also argued that adding copyrights to works in the public domain is an unconstitutional violation of the First Amendment.
When a work's copyright expires, others can use it as a new form of protected speech, such as a producing a play or archiving a book, Golan argued.
Removing works from the public domain contracts the universe of speech and expression available to the public, and restricts access to the very fuel that fires the engine of free expression, Golan wrote in a court filing.
Chief Justice John Roberts said he found Golan's argument appealing.
What about Jimi Hendrix, he asked Verrilli, who was arguing for the Obama administration. He has a distinctive rendition of the national anthem and assuming the national anthem is suddenly entitled to copyright protection that it wasn't before, he can't do that, right?... He's just out of luck?
Verrilli maintained that there were no First Amendment issues at stake because of the accommodations that are made for such derivative works.
Maybe, Verrilli said, Jimi Hendrix could claim fair use in that situation.