Supreme Court to rule on lengthy copyright dispute
Artists argue that law could adversely affect works involving appropriation
By Martha Lufkin. News, Issue 230, December 2011
Published online: 08 December 2011
The Supreme Court is soon expected to rule on a lawsuit challenging the right of the US Congress to grant copyright protection to certain works, which fell into the US public domain because their foreign creators failed US copyright requirements. The case has drawn wide attention and support in the art world, and could affect visual artists who ¬rely on appropriation to create their own works.
At issue is a section of the Uruguay Round Agreements Act (URAA), enacted in the US in 1994 to bring the US into compliance with the Berne Con¬vention, an international copyright treaty. The ruling could have a big impact on the film, music and publishing industries, which under the act must now pay fees for re-copyrighted works, as well as those in the visual arts wishing to freely copy certain works by artists such as Picasso, Rod¬chenko and Matisse. The plaintiffs, led by orchestra conductor Lawrence Golan, argue that they have lost free speech rights and that Congress cannot erode the public domain.
The US government is defending the law, and its supporters say that they could lose valuable dollars too, if their copyrights are jeopardised abroad in response to a US failure to respect the rights of foreign artists. They urge that the act is needed to meet US treaty obligations, ensure reciprocal copyright protection for US artists abroad, and fairly protect foreign creators.
Robert Panzer, the executive director of Vaga, the visual artists association in New York, which provides copyright services for artists, says that pre-Berne ¬copyright formalities in the US were “onerous”, and that foreign artists often did not comply. “To expect foreign artists to know about a US law that had no ¬equivalent in their own countries was unfair and unjust,” he says. “The works should not have fallen ¬into the public domain in the first place.”
The Berne agreement prohibited such technical copyright formalities. After the US joined the convention in 1989, it was soon criticised for failing to protect ¬foreign works that, though under copyright in their source countries, had failed the US requirements. The Uruguay Round Agreements Act was enacted to restore foreign copyrights.
