The Supreme Court heard arguments Wednesday morning about whether Congress violated the First Amendment when it reinstated copyrights for works by Pablo Picasso, H.G. Wells, and Alfred Hitchcock.
When a copyright expires, a work is available in the public domain. During the hearing Justice Anthony Kennedy questioned whether that means the public now owns that work. Arguing on behalf of orchestra conductors and film historians, Stanford Law Professor Anthony Falzone said they did.
Outside the court Falzone repeated the argument he made before the bench: that Congress violated the First Amendment when it restored copyright protection to a group of works by foreign artists. "The freedom to use works in the public domain has defined the freedom of speech everybody has known for 200 years and the statute took it away," he said.
Justice Ruth Bader Ginsburg had asked Falzone what was wrong with giving the same copyright protection to foreign artists that is awarded to American composer Aaron Copeland. Falzone said Congress must pick a limit and copyrights need to have an end date. Ginsburg pointed out that these particular works weren't getting treated any better than works by American artists, since they lacked copyright protection in the first place.
Arguing for the government, Solicitor General Donald Verrilli said restoring the few copyrights in question is the “price of admission” to make the U.S. party to a treaty that would protect American copyrights overseas. Justice Sonia Sotomayor asked about the practical consequences of Congress' action. Questions like 'Would libraries have to take books off their shelves?' were among those asked.
The copyright case stirring the debate is called Golan v. Holder.
Lawrence Golan is a music conductor said there are practical consequences to Congress restoring copyrights. His orchestra, he said can no longer afford to simply buy a score and perform "Peter and the Wolf" for school groups.
"We used to be able to buy it for $100 and then play it for children's concerts morning after morning after morning with busloads of kids taken to the auditorium every day. And all of that for that $100 purchase. After the treaty, that same piece would cost us, let's say, $600 per performance," he said speaking on the steps of the high court Wednesday.
The Motion Picture Association of America filed a brief siding with the government; Google and the American Library Association filed briefs agreeing with the music conductor.