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By Robert Barnes, Published: January 18

The Supreme Court on Wednesday upheld Congress’s right to extend copyright protection to millions of books, films and musical compositions by foreign artists that once were free for public use.

Under Congress’s 1994 law, movies by Alfred Hitchcock, paintings by Picasso and the symphonies of the great 20th-century Russian composers were among the works that could no longer be freely quoted, copied, played, shared or republished without paying royalties or seeking permission

In a 6 to 2 decision, Justice Ruth Bader Ginsburg said Congress was acting “comfortably” within its powers when it extended copyright protection to foreign artists under treaty obligations that gave U.S. artists the same rights.

The court rejected a challenge from orchestra conductors, educators, performers and others that Congress’s action violated the Constitution’s copyright clause and the First Amendment’s guarantee of free expression.

“Nothing in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain,” Ginsburg wrote.

Justice Elena Kagan recused herself from the case, presumably because she had worked on it while solicitor general under President Obama.

Justices Stephen G. Breyer and Samuel A. Alito Jr. dissented.

The decision marked the end of a 10-year legal trek by Lawrence Golan, a University of Denver music professor and conductor who challenged the law on behalf of fellow conductors, academics and film historians.

Golan represented small orchestras that said they could no long afford to play such works as Sergei Prokofiev’s “Peter and the Wolf,” which once was in the public domain but received copyright protection that significantly increased its cost.

Golan was supported by librarians and corporations such as Google. Removing works from the public domain, the company told the court, would chill its efforts to use the Internet to give the public access to “the vast stores of human knowledge and experience recorded in books.”

But the court agreed with the Obama administration, which defended the law, that the public had no vested right to the works just because they had not received copyright protection when they should have.

“Prokofiev’s Peter and the Wolf could once be performed free of charge; after [the law] the right to perform it must be obtained in the marketplace,” Ginsburg wrote. “This is the same marketplace, of course, that exists for the music of Prokofiev’s U. S. contemporaries: works of Copland and Bernstein, for example.”

Congress, backed by the motion picture and music industries, had said the action was necessary under the Uruguay Round of international trade talks to protect the rights of American artists abroad.

Breyer acknowledged that one purpose of the Constitution’s copyright clause is to make sure artists retain control over their work. But he said the court’s majority ignored another purpose: to encourage new works and spread knowledge for the public good.

“Does the clause empower Congress to enact a statute that withdraws works from the public domain, brings about higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational, or cultural purposes — all without providing any additional incentive for the production of new material?” Breyer wrote.

“I believe the answer is no.”

The case is Golan v. Holder .

Thanks for posting this!

Interesting, but too bad the results turned out as they did. Good for Golan for trying! He played on the DU music student floor hockey team with us when I was there - he's a fun, nice guy in addition to all his accomplishments.

Andromaque thanks for sharing this... Even if the news suck big time! I mean... come on... How long is it before us musicians can access some things from long dead composers? Wasn't Prokofiev dead around 1957 or so? So.. who exactly us benefited from collecting royalties at this point? Certainly not the composer... and probably not his children either (being around 70 years old at this time at least, or dead...).

Nice going American courts... once more...

If you take a look at the bigger picture you need to put into this decision SOPA and PIPA as well... And then you will realise that this sucks even more...



A very dissapointed Nikolas - out!

There are many editions of Prokofiev's works readily available. It's not an issue of access. It's only an issue to people who expect to get what they want without having to pay for it.

It's not about that, not at all!

It's one thing to pay for a book, or the parts (to rent them anyhow), and another to pay for royalties to a long dead composer. I don't think that there's any issue that involves IMSLP... Old works are still getting bought (just look at Henle editions... Only copyright free works and yet they are doing pretty good), not for the lack of availability in alternative formats or prices but for the quality you can buy! Simple as that!

I expect my royalties for any work performed anywhere in the world, but it makes sense: I'm still alive (and kicking) and I will need the money to keep composing and advance my career (and thus offer more back to the world)... How exactly is Prokofiev himself benefiting from collecting royalties?

Obviously a dead man does not own the rights to his works.

How is my late father benefit from having owned a home that was passed down to my mother? Well, strictly speaking my mother benefits. But that doesn't mean someone else can just move in and live there because my father isn't around.

Copyright law has allowed rights to outlive the author for a long time now. That makes publishing rights more valuable. Imagine a 96-year-old composer who writes a pop tune that becomes incredibly popular. He can sell the rights to that tune for a lot of money because the rights outlive him. Whoever buys those song rights pays whatever they're worth based on owning them for decades into the future. If the publishing rights died with the composer, nobody's going to pay near as much for them because that 96-year-old guy might die the day after selling them.

Hence the "authors life plus 70 years" principle of USA copyright protection. That maximizes the value of publication (and performance) rights and keeps them from being limited by contingency upon the authors uncertain lifespan. Is it excessive? I think so. But it's the law none the less and even if I'd rather it be "life plus 20 years" or something similar that's just quibbling over price.

Here's the solution. If you think Prokofiev is not worth paying for, play different music. Nobody's holding a gun to your head and insisting you buy it if you don't like the price.

The solution you propose results in the lovely 3 Bs being played and being taught again and again and again and nothing advancing... Exactly because it's inaccessible for many reasons (rights is hardly the only reason).

And, of course, the question should be: Does the artwork (which is HUGELY different than a house in your example) have a monetary value on its own? And certainly we need to differentiate between painting (where the uniqueness of an item can turn it into a multi million item) and music (which one can play anything, anywhere, can listen to it all around and even freely through MTV and youtube (both of which do NOT offer royalties as far as I know)).

EDIT: And, yes, I do think that a quality book is always worth paying for. I'm arguing about the need to pay royalties to a publishing house (assumption here) if a Prokofiev work is performed... :-/

MTV pays royalties for every second of music it plays. YouTube is required by law to immediately removed any copyrighted material which the owner brings to its attention. So do radio and TV stations, even web sites that put background music to their content.

In the USA and most other countries any performance, reproduction or other use of copyrighted material requires either paying royalties or the express permission of the copyright holder (with certain very restricted exceptions for educational or satirical use).

Images, books, music all have slightly different forms of protection for copyright holders but it is protected none the less. And the fact that something must be payed for does not imply that it can not or will not be used. I have whole shelves full of sheet music that aren't the "Three B's" by the simple expedient of actually buying it at a music store, or ordered from Amazon or Sheet Music Plus. It's not that expensive, really, in most cases.

The change in US law only brings the US into line with most of the western world. In the UK until recently there were different rules for compositional and performance copyrights, so we had a similar situation -- a heap of popular and classical performances from the 50s that were out of copyright suddenly became protected again.

With 70 years is the right duration is an arguable point, and good arguments can be made either way. What's troubling from a consitutional law point of view -- both in the UK and the US -- is the enactment of legislation which has the effect of creating new IP rights where none had previously existed (because they had expired). But it's hard to see how the UK or the US can meet treaty obligations in any other way

A more rational solution would be to eliminate any connection to the composer's death, and have the copyright simply be a set number of years.

In an imaginary world that's the way it would work. In the real world excessive transfer times have stifled and killed entire literary and musical genres.

The literature and music used in my classrooms (I'm 55) was produced by my grandparents' & parents' generations. Free availability of recently important styles and genres ensured new concepts stayed fresh in the collective conscience and provided a foundation for future growth of those ideas.

Now long-term copyright law blocks classroom usage to the classic arts when demonstrating stylistic concepts. How does this equate to increasing sales of 20-90 year old albums or books? How does obscurity increase value? Severely and forever removing cultural awareness destroys all value the art once had. It only takes two generations' of copyright black-out for no one to remember, no one to care, no one to want.

These delusional "select and pay forever" schemes have blocked free scholastic distribution points, resulting in the youngest generations being staggeringly unaware of art forms and styles created 30 to 90 years ago.

As a result of what we did to extend copyright in the mid 1970's it's no surprise that today's young people haven't learned to appreciate the previous generations art forms but have let them wither away to obscurity. Only exposure ensures art a prolonged life - and exposure is exactly what misplaced greed has ensured will no longer occur.

Extended copyright is a false golden goose wielding death's scythe against 20th century thinking.

On the one hand I find this appalling. On the other, I rather prefer the artistic concepts of pre-20th century culture taking the forefront.

I don't disagree with your general post, but I find that this particular point needs some furthering...

You see it's quite difficult to educate the young if recent things are unavailable, or if they are too hard to reach. But if we could educate and train them young, the soon to be creators and the general public (audience alike)... Oh then, perhaps, the creative output would be very better than what it seems to be now (although I find that a lot of contemporary music is quite wonderful).

Here in the UK, can I therefore make free use of music by American composers, ignoring any local US copyright?

With art and more specifically with music, the creator, sometimes, can be very attached with the work of art! I mean there have been masterpieces that were composed only for the love of a woman, or the loss of a parent, or whatever... Can you imagine you composing a musical work for the loss of a loved one and then after 10 (eg.) years the copyrights being gone and this work turned into an R&B silly hit? :-/

In this particular case, the real question was whether the United States would acknowledge the foreign copyright status of works that had entered the public domain here in the US, but which were still copyrighted elsewhere.

While I personally think that our own "life plus 70 years" copyright term is simply ridiculous (I would prefer a non-transferable life-of-the-artist term, to ensure that the artist - and only the artist - remains permanently in control of his own work), and while I think that we (well, our legislators) grossly underestimate the value of the public domain, I do buy the government's logic in this specific instance.

In other words, assure nobody ever gets paid. If you can't sell something then you don't own it in any meaningful sense.

[EDIT}Changed the typo "can" to "can't".

And there we have it. "Nobody gets paid" meaning the middleman's lion's share is shut out.

I've purchased three pieces of sheet music and at least 5 CD/mp3's this month - all direct from the ARTISTS. Limiting copyright to the artist's life would in no way prevent them from being paid.

It's a blunt fact that all art is derivative. Synchronous issue, i.e. "human ideas" often overlap and span unrelated cultures and eras. The concept that artistic "faire" is unique property in perpetuity is at best fantasy, at worst, piracy.

Under current law, anyone who creates a copyrighted work is perfectly able to retain the rights. The CDs you bought directly from the artists is an example of exactly that. Those artists have two options, retain the rights or sell the rights.

What possible benefit to them would be for removing one of those options and leaving the other? You like buying direct from artists so you found some artists who wanted to sell direct. Sounds like a win-win situation. What's your complaint?

In fact, those artists could sell CDs to you direct and at the same time sell the rights to that music to someone else who wants to sell the same music through a middleman. They can do both at once if they want to. What offends you about their being able to do that? It's like someone who buys his TV at Wal-Mart wanting to make it illegal for the same TV to be sold at Best Buy.

P.S. It is not perpetuity. It is the life of the creator plus 70 years. Exaggerating does not make your argument any more convincing.

I don't understand this. The evil middleman in this case can provide a tremendous value to the artist, even in this self-promotional youtube age.

The basic point is that the rights to a work is an asset. The creator would like the value of that asset to be higher rather than lower. Limiting the copyright to the life of the creator reduces the value of that asset by loading all the risk onto the artist. The willingness of a firm to purchase the rights from the composer is determined in part by risk, and risk is increased when the term of the rights is made more variable. We can argue till the cows come home whether 70 is the right number, but 0 clearly diminishes the value of any salable rights.

For all intents "rights" are granted in perpetuity once the original life of the artist has passed. Once legal precedent was set that art isn't a shared asset we've seen that pushing timelines out has became a trivial matter. Pretending that 100 years, 200, or forever would have differing results does not make your argument effective. Once an idea is removed from active discussion its chance for future appreciation withers away.

I recently visited the daughter and friends up in "large metropolitan NE city" last month. Her (huge) group of friends is a mix of young professionals, many with reasonably well remunerated positions. In other words, discretionary money is available. In discussion none expressed interest in RIAA or MPAA churn or their "promotions", free or paid.

Why should they? Their development years were spent listening to "Indie" type free concerts and purchasing music direct at venue or artist websites.

When this group was in elementary-through-high the classics were all that were available as music samples. The unsurprising result: A significant portion are currently playing or in process of learning classic instruments, piano, violin, even woodwinds. They discount "grandma's and mom's music" as being too inferior to bother with. Indeed, so lacking it wasn't even used to teach from or used as examples of prior art in their schools.

Interestingly many collect vinyl LP's acquired from parents or secondhand shops. These are valued or their analog technology rather than content.

In the end it's all about the imagined boxcars of money "lost" isn't it? In litigation-land the story's oft' told that the next generation is gnawing at chains to throw down billions in return for stale music and culturally insignificant literature.

Yeah, get back with me in 10 years and let me know how that worked out.

I can't really parse out what, exactly, your complaint is.

How is "life plus 70 years" the same as "perpetuity". Obviously there is a huge amount of classical repertoire that falls somewhere between "life plus 70" and "perpetuity" and every bit of it is in the public domain.

And what does "once an idea is removed from active discussion" mean? Music that is copyrighted is not "removed" from anything except web sites that publish music without charging for it. The fact that one has to pay iTunes 99 cents for a performance or that you have to buy a piece of sheet music (or check it out of a library) does not "remove" it from anywhere. In that case my car is "removed" because the dealer charged me for it, right? In that case how did I drive to work this morning?

I haven't a clue what you're saying about some bunch of young people and something-something-something RIAA/MPAA. Are you just throwing out acronyms of things you hate?

There are still music sample available in many teaching situations. I can't see what enforcing copyright on certain things formerly considered public domain has to do with anything. There were already some un-copyrighted and some copyrighted musical works out there. Now there are a few more of the latter and less of the former. That is not the end of music education.

And for another thing, how can a decision regarding copyright in 2012 retroactively have determined what kind of music education was available in past years? What?

And finally it's not clear what I'm supposed to get back to you about in 10 years. What is the referent for "that worked out"?

You don't seem to get it:

Under current conditions (economic crisis) it's already diffuclt enough to have people go to the concert hall. If you start excluding more and more works, by adding more and more years into the copyright license (so as to always include the works of Disney for exampl *ahem*) then in the end you'll end up with no new works being performed. It's bad enough as it is, but some Prokofiev and some Stravinsky would be nice to be performed a little more, don't you think? Right now with the current shapping of the law, this is getting much more difficult.

and to give a very direct report from Greece, tonights concert hall, even with works from Beethoven and Schubert and all tickets priced at 13$ (10 euros) was half empty. Friday night, I remind you. Perhaps if they had a more interesting work roaster things would be better, huh?

And then there's education: How do you expect the students to learn about Messiaen, Ligeti, Schnittke and these are just the noisy examples, when these works not only cost the earth to get (http://www.sheetmusicplus.com/title/20-Regards-sur-l-Enfant-J-sus/4003650 ... 88$!!!!!!!!!!) but they cost even more to get performed live, so you get a limited range of CD performances or even live performances...

Is Brent H an attorney? speaks like one

Not hardly. If I were a lawyer I'd be telling people how to get their music without paying...and having them pay me for advice instead.

For most music, the performance rights are already paid for by licensing through ASCAP, BMI, or the other one whose acronym I cannot remember. These licenses are usually paid by the venue. All this decision means is that some of that fee may go to the accounts of some additional composers.

Incidentally, it looks like the decision was due to a treaty that brings uniformity to copyright law worldwide. Extending these copyrights was not a US decision.

It is also not without precedent. During WWII, the US did not recognize copyrights of publications that were copyrighted in Axis-controlled countries. After the war, they were in copyright again.

Nikolas,

Changes to copyright practices excludes nothing and no one. All it does is raise the cost of use by a rather small amount. Perhaps the orchestra now has to pay an extra few Euros (or soon to be Drachma) to play a Prokofiev piece. That may change incentives, but only by a tiny bit. If that extra few Euros to use a work means Prokofiev disappears from the stage, so be it. But I would be shocked if the incentive effect on public performance of these copyright changes were even measurable.

Times are difficult for the arts right now, everywhere. It's easy to imagine an orchestra fighting for its financial life choosing to eliminate spending on anything other than musician salaries, even amounts of money that in normal times would be small change in the bigger picture.

One can hardly expect copyright law to take into account the budget of an orchestra here or there or the fact that primary school music programs have virtually no money at all for anything nowadays. So while some particular SCOTUS decision (which does not effect a Greek orchestra anyway) can have ramifications for this or that worthwhile organization, it's no more tragic than any other blow to a poor, starving artist.

As it is, was an ever shall be...he arts are a heck of a tough way to earn a living. And moreso when times are tough. Then again not every music composer is exactly living on Easy Street off those royalty checks. In the end analysis, this is a bunch of people screaming about the end of the world because something they used to get for free will now cost something. That's about the size of it.

Yes and no to PianoDad and Nikolas:

In the US at least, the cost of performance rights won't change at all. Venues already pay ASCAP fees, and those will cover anything by Prokofiev, Stravinsky, etc...

Where the cost becomes a problem is in mechanical and broadcast licensing. It will be more expensive and difficult to distribute recordings of works by those composers.

Also, and this is why Copland and Gershwin are a problem - rental scores are fantastically expensive. A rental score can cost thousands and thousands of dollars, and in an age where orchestras are pinching pennies, it adds up quickly. When you perform a Beethoven symphony, all you have to do is get it out of the orchestra's library and put it on the stands. But nobody actually owns the parts to Copland's Third Symphony or Rodeo. You have to rent it from Boosey, and it's expensive.

But that's true at present, correct? Nothing changes.

As for it being "too" expensive, how are these rental rates set? I suspect the price is a variable, not a fixed-for-all-time number. Boosey wants revenue. Setting a price too high does not a profit make if that price chokes off too much demand.

As a former librarian, my ears always perk up when copyright issues are raised. My contribution to the thread here is in general terms, not related to the specific case in the OP.

A few weeks ago, as SOPA and PIPA were starting to peek through the news curtain, there was an interesting discussion about copyright on the Diane Rehm show. Here is a link to the page about that day's program, and if you are interested, you can click on the "Listen" link. I present it as "food for thought." Analyzing the agendas at play behind what the participants say is up to you... The discussion is interesting:

http://thedianerehmshow.org/shows/2012-01-05/copyright-law-digital-age

Also, a few days ago, as I wondered what the American Library Association had to say about SOPA and PIPA, I ran across an interesting curriculum that addresses the issue of "fair use" in the digital age.

http://www.teachingcopyright.org/

I hope these links help us understand copyright issues better, in general.

--Andy