The Art and Museum Law Group issued today a client advisory on the implications of Golan v. Holder.
The U.S. Supreme Court upheld in Golan v. Holder the constitutionality of a U.S. statute (§ 514 of the Uruguay Round Agreements Act of the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)) that “restored” U.S. copyright protection to millions of foreign-authored works that, for much of the twentieth century, had none at all. The Court found no constitutional bar to making foreign works that once were free of copyright protection now subject to the full regime of rights. The decision raises far-reaching implications for anyone who has copied, sold, or otherwise published foreign works of the 20th century that were assumed to be in the public domain, and raises anew the importance of considering the various layers of copyright protection that follow a single work.
Consider, for example, this scenario: an American sees in a European magazine or on display in the United States a painting or sculpture whose author did not observe U.S. copyright formalities. She takes her own photographs or makes her own painting incorporating the image, and sells her own (copyrighted) work or reproductions of it. Before § 514, she had not infringed. After § 514 and Golan, she could have—and never have realized it. Likewise, an author who draws on a text or a composer who quotes a melody could also be liable for infringement.
Read about this and more at our latest advisory.