Golan v. Holder
The Court upheld a federal law that restored copyright protection to millions of foreign works that had previously been free to use in the United States, including films, books, and musical compositions by composers like Prokofiev and Shostakovich.
The ruling confirms that Congress can pull works out of the public domain to bring the United States into compliance with international treaties, without violating either the Copyright Clause's 'limited times' requirement or the First Amendment.
How it got here: A federal trial court ruled for the government; the Tenth Circuit sent the First Amendment issue back; on remand the trial court ruled for the challengers, but the Tenth Circuit reversed, and the Supreme Court agreed to hear the case.
The Case in Depth
What happened
Congress passed a law, part of implementing an international trade agreement, that restored U.S. copyright protection to foreign works that had never been protected here — often because their home countries lacked copyright relations with the U.S. or because of missed paperwork. Orchestra conductors, musicians, and publishers who had freely used these works, such as pieces by Prokofiev and Shostakovich, sued, arguing the law unconstitutionally yanked works out of the public domain.
The question before the Court
Could Congress give copyright protection back to foreign works — like symphonies and films — that had already fallen into the American public domain?
The Court's answer
Yes — the Court ruled that Congress could restore copyright protection to foreign works that had been in the American public domain, even though this meant some works lost their free-to-use status. The Copyright Clause's "limited Times" language doesn't freeze copyright terms forever once set; and because these works effectively had a term of zero, restoring protection didn't violate that limit. The Court also found that promoting the spread of existing works, not just creating new ones, is a legitimate way to serve copyright's purpose.
On the First Amendment challenge, the Court held the law survived because it left intact copyright's built-in free-speech protections — the idea/expression distinction and fair use — the same safeguards that satisfied the Court in the earlier Eldred case. The law didn't ban public access to these works outright; it simply required users to pay for them, like any other copyrighted work.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Orchestras, publishers, film archives, and educators who once used these foreign works for free must now pay licensing fees or limit themselves to fair use. The decision also signals that Congress has broad power to adjust copyright law to meet international treaty obligations, even when doing so removes material the public had come to treat as free.
What changes now
The ruling is final on the merits; there is no remand for further proceedings on these claims. The restored copyrights remain in effect, and orchestras, publishers, libraries, and others must continue licensing works covered by the statute. The decision leaves unresolved the broader 'orphan works' problem — locating unknown copyright owners — which the Court said is a matter for Congress, not the courts, to address.
What this does not decide
The Court did not decide how to fix the "orphan works" problem — the practical difficulty of locating copyright owners for old, obscure foreign works — saying that is a matter for Congress. It also did not revisit its earlier ruling in Eldred v. Ashcroft upholding copyright term extensions, which the challengers did not ask the Court to reconsider.
Concurrences and dissents
Dissent — Justice Breyer
Justice Breyer argued that copyright's whole purpose is to encourage the creation of new works, and this statute rewards only owners of old works while providing no incentive to create anything new. He would have found the law exceeds Congress's Copyright Clause power because it takes material from the public domain, raises prices and administrative costs (especially for hard-to-find 'orphan works'), and restricts speech without any offsetting benefit.
How the Court got there
The legal reasoning, step by step
- The Court applied its earlier decision in Eldred v. Ashcroft, which held that the Copyright Clause's requirement of 'limited Times' does not mean a copyright term, once set, can never be adjusted — it simply means the term must be confined and not perpetual.
- Because the works at issue had effectively received a copyright term of zero (no protection at all), the Court reasoned that a term must begin before it can end, so restoring protection did not violate the limited-times requirement any more than extending an existing term did in Eldred.
- The Court looked to historical practice, including the first Copyright Act of 1790 and various private bills and wartime statutes, to show Congress has repeatedly granted protection to works and inventions previously unprotected or in the public domain, undercutting the argument that the public domain is untouchable.
- On the 'Progress of Science' argument, the Court held that encouraging new creation is not the only way Congress may advance knowledge — inducing wider dissemination of existing works, as this law aimed to do by aligning U.S. law with the Berne Convention, is also a permissible goal.
- Turning to the First Amendment, the Court applied the framework from Eldred: because the law left intact copyright's 'built-in' free-speech safeguards — the idea/expression distinction and the fair use defense — no heightened First Amendment scrutiny was required.
- The Court concluded that restoring these works simply placed them on the same footing as domestic works, requiring payment for use rather than banning it outright, so the law survived both constitutional challenges.
Doctrinal impact
Cases affected by this decision
Reaffirms Eldred v. Ashcroft (537 U. S. 186)
The Court leaned on Eldred's reasoning about limited times and First Amendment safeguards to uphold this law too.