Golan v. Holder
The Court upheld a federal law that restored U.S. copyright protection to millions of foreign books, films, and music that had never been protected here, even though the works had long been free for anyone in America to copy and perform.
The ruling means Congress can pull works out of the public domain to bring U.S. law in line with an international treaty, and it rejected arguments that the Constitution's copyright rules or the First Amendment permanently lock works into the public domain once they land there.
How it got here: A federal trial court granted summary judgment to the government; the Tenth Circuit sent the case back for First Amendment review, then reversed a later pro-plaintiff ruling, prompting Supreme Court review.
The Case in Depth
What happened
Foreign authors' works had long been excluded from U.S. copyright, either because their home countries lacked reciprocal protection with the U.S. or because the authors missed American paperwork requirements. Conductors, musicians, and publishers who had used these free works sued after Congress passed a 1994 law giving these foreign works the same copyright term U.S. works receive, arguing it improperly took material out of the public domain.
The question before the Court
Could Congress give copyright protection to foreign works—like symphonies and films—that had always been free to use in the United States?
The Court's answer
Yes — the Court ruled that Congress could restore copyright protection to foreign works that had always been free to use in the United States. The Copyright Clause's requirement that protection last only a "limited time" does not stop Congress from granting a first-ever copyright term to works that previously had none, since a period of exclusivity must start before it can run out. History showed Congress has repeatedly protected previously unprotected works, from the first Copyright Act onward.
The Court also held the First Amendment did not block this law, because copyright's built-in safeguards — letting people freely use facts and ideas even from protected works, and allowing "fair use" — remained fully in place. Since Congress eased the transition for people who had relied on these works being free, no special free-speech problem required extra judicial scrutiny.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Orchestras, libraries, filmmakers, and teachers who had been freely using foreign works like Prokofiev's "Peter and the Wolf" or Shostakovich scores now must pay licensing fees or limit themselves to fair use. Some smaller nonprofit groups may simply be unable to afford the newly required fees, and researchers face added costs tracking down foreign copyright holders.
What changes now
The ruling is final on the merits, so the copyright restoration law remains in effect nationwide, and previously public-domain foreign works stay under copyright for the remainder of their normal terms. Users must now pay licensing fees or rely on fair use for these works. The Court noted that any further relief for people struggling to find copyright owners of hard-to-trace 'orphan works' would have to come from new legislation, not from this ruling.
What this does not decide
The Court did not decide the broader "orphan works" problem — the difficulty and cost of tracking down owners of older, hard-to-trace foreign works — noting that fixing that issue is a job for Congress, not the courts. It also did not address a separate takings-clause argument, which the parties did not pursue.
Concurrences and dissents
Dissent — Justice Breyer
“Worst of all, “restored copyright” protection removes material from the public domain.”Breyer's core objection that the law takes away material the public had come to rely on freely.
Justice Breyer argued that copyright's whole purpose is to encourage the creation of new works, and this law does nothing to encourage any new creation — it only rewards owners of old works while imposing real costs on the public, including higher prices and heavy administrative burdens in tracking down obscure foreign 'orphan works' copyright holders. He would have struck the law down under the Copyright Clause, informed by First Amendment concerns about restricting speech that people reasonably believed was free to use.
How the Court got there
The legal reasoning, step by step
- The Court first asked whether the Constitution's 'limited Times' requirement for copyrights forbids Congress from granting new copyright terms to works already in the public domain, relying heavily on its earlier decision in Eldred v. Ashcroft, which upheld a 20-year copyright extension.
- The Court reasoned that a term of protection must begin before it can end, so works that previously received zero protection had not yet used up any 'limited time'; the new copyright terms granted to these foreign works were just as finite and bounded as any other copyright term.
- Turning to historical practice, the Court found that Congress had repeatedly protected previously unprotected works — starting with the very first Copyright Act in 1790 — showing that the Founders never treated the public domain as untouchable by Congress.
- The Court then addressed whether the law promotes 'the Progress of Science,' the constitutional goal behind copyright, concluding that encouraging the spread and dissemination of existing knowledge — not just the creation of brand-new works — satisfies that goal.
- On the First Amendment claim, the Court applied the framework from Eldred, holding that copyright's built-in safeguards — the rule that only an author's specific expression (not the underlying facts or ideas) is protected, and the fair-use defense allowing certain free uses — are enough to satisfy free-speech concerns without requiring heightened judicial scrutiny.
- Because the law left both of these safeguards intact and included transition measures easing the burden on people who had relied on the free availability of these works, the Court concluded neither constitutional provision barred Congress from restoring copyright protection to these foreign works.
Doctrinal impact
Cases affected by this decision
Reaffirms Eldred v. Ashcroft (537 U. S. 186)
The Court relied on Eldred's reasoning about limited copyright terms and free-speech safeguards to uphold this law.