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Talking about Jimi Hendrix, the Star-Spangled Banner, and Free Speech at the Supreme Court

Sarah Roberts,
Speech, Privacy and Technology Project
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October 7, 2011

This week the Supreme Court heard arguments in Golan v. Holder, a case about whether the government can grant copyright protection to books, music, and movies that were previously in the public domain. Works in the public domain can be used by anyone without restriction, and provide inspiration and material for new works and performances.

The case is a challenge to a law passed in 1994 called the Uruguay Round Agreements Act, which granted copyright protection to millions of foreign works that had previously passed into the public domain in the U.S. Many classics are included: symphonies by Shostakovich and Stravinsky; books by Tolkien, Orwell, Woolf, and C.S. Lewis; films by Fellini and Hitchcock; and artwork by Picasso, including Guernica.

The lawsuit was brought by a coalition of orchestra conductors, teachers, and film archivists, and the ACLU filed a friend-of-the-court brief. The ACLU supports copyright in general, as it can provide an important incentive to create speech — but copyright laws, like all others, are subject to the First Amendment. And a vital element of copyrights is that they eventually expire, so that older works can be used as inspiration for the new.

In defending the law, the government argued that the First Amendment doesn’t apply to copyright laws except in limited circumstances not present in this case — essentially, that Congress can pass copyright laws without taking freedom of speech into consideration. According to the government, even if the First Amendment did apply, those who use speech first created by others are only entitled to limited First Amendment protections.

Our brief argues that the First Amendment doesn’t permit Congress to take away the public’s right to use speech that has previously been in the public domain whenever it wants to do so. Speech based on words first used by others — like political signs or t-shirts — are entitled to full First Amendment protection.

During the argument, Chief Justice John Roberts cited an example discussed in our brief, asking, “What about Jimi Hendrix, right? He has a distinctive rendition of the national anthem, and assuming the national anthem is suddenly entitled to copyright protection that it wasn’t before, he can’t do that, right?”

Chief Justice Roberts is exactly right. Throughout time, well-known artists, writers, and thinkers have created something new by relying on works in the public domain. Whether it’s Jimi Hendrix or the Royal Shakespeare Company, that speech also deserves to be protected — and Congress shouldn’t be allowed to take away our rights to create that speech.

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