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The Fight to Put Works by Picasso, Hitchcock, Stravinsky, and Others Back in the Public Domain

Aden Fine,
Senior Staff Attorney,
ACLU Speech, Privacy and Technology Project
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June 23, 2011

Our Constitution wisely gives Congress the power to pass copyright laws. A current Supreme Court case and new ACLU friend-of-the-court brief are a reminder, however, of why our courts need to have the ability to ensure that Congress uses that power in ways that are consistent with the other parts of the Constitution, including the First Amendment.

The federal law being challenged in this case — Section 514 of the Uruguay Round Agreements Act of 1994 — raises serious First Amendment issues because it granted copyright protection to foreign works that were previously in the public domain in the United States.

Earlier this week, we filed an amicus brief in the Supreme Court in connection with a challenge to Section 514 brought by a group of orchestra conductors, educators, performers, publishers, film archivists, and motion picture distributors. The government has attempted to defend the statute by claiming that the First Amendment does not even apply to this copyright law. That cannot and should not be the case.

This law has an enormous burden on speech. It grants copyright protection to millions of works. Many classics are involved, including:

  • Symphonies by Shostakovich, Stravinsky, Prokofiev, and Rachmaninoff.
  • Books by J.R.R. Tolkien, Joseph Conrad, George Orwell, Virginia Woolf, C.S. Lewis, and H.G. Wells.
  • T.S. Eliot’s classic poem, The Waste Land.
  • Films by Federico Fellini and Alfred Hitchcock, including the 1934 version of Hitchcock’s The Man Who Knew Too Much; and
  • Artwork by M.C. Escher and Picasso, including Picasso’s Guernica.

Before this law, all of us were free to use any of these public domain works, and the millions of others affected by the statute, without restriction. Now, because the new copyright holders can prevent their works from being used or charge licensing fees that will be prohibitive for most people, innumerable core First Amendment activities relying on these public domain works — musical and dramatic performances, literary adaptations, and film showings and distributions, to name a few — will be forced to cease.

Copyright can be speech-enhancing. It can lead to the creation of new ideas and works of art by providing a financial incentive to individuals to create speech and by ensuring that all copyrighted works eventually fall into the public domain, where they can be used by others as inspiration to create new works, which will in turn spawn other new works, and so on. That is why the ACLU supports copyright in general, and it is why the Supreme Court has said that copyright can be an “engine of free expression.” But that does not mean that all copyright laws are consistent with the First Amendment. When Congress crosses the line, as it did with Section 514, courts must be able to step in to ensure that the proper balance between copyright and free speech is maintained. Our First Amendment rights depend on it.

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