The suit challenging the law was brought by orchestra conductors, teachers and film archivists who say they had relied for years on the free availability of such works.
Chief Justice John G. Roberts Jr. posed the general question in the case this way: “One day I can perform Shostakovich. Congress does something. The next day I can’t. Doesn’t that present a serious First Amendment problem?”
Then the chief justice, a pioneer in the citation of popular music in legal discourse, asked the question slightly differently, invoking Hendrix, the great rock guitarist, to test the limits of the government’s position. “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?”
The solicitor general, Donald B. Verrilli Jr., making his debut in the post, said there were good reasons to allow Congress to restore copyright protection to works that had entered the public domain, even at some cost to free expression by performers and others. Responding to the chief justice’s hypothetical question, Mr. Verrilli said that “maybe Jimi Hendrix could claim fair use.”
The 1994 law applies, he said, to foreign works that had not been eligible for copyright protection before the United States joined and implemented an international convention. The terms of the newly copyrighted works, he added, expire on the same day they would have had they been copyrighted since their creation.
Justice Sonia Sotomayor said there was nothing unusual in granting copyright protection to works that had once been in the public domain. In 1790, she said, Congress “took a whole body of public works and gave them copyright protection the day they decided to pass the copyright law.”
Anthony T. Falzone, representing the challengers to the law, disputed that as a historical matter saying that “that was the first copyright act, and Congress established a baseline.”
Justice Elena Kagan recused herself from the case, presumably because she worked on it as solicitor general. That raised the possibility of a 4-4 tie that would automatically affirm a decision of the federal appeals court in Denver, which had upheld the law.
There is reason to think, Mr. Verrilli told the court, that American authors and artists will be treated better abroad because foreign authors and artists have received expanded copyright protection here.
Mr. Falzone questioned that. Congress, he said, “took speech rights of 250 million Americans and turned them into the private property of foreign authors, all on the bare possibility that might put more money in the pocket of some U.S. authors.”
Near the end of his argument in the case, Golan v. Holder, No. 10-545, Mr. Falzone returned to the chief justice’s reference to performers like Hendrix.
“There can’t be any doubt, as I think Chief Justice Roberts got at, that the performance has a huge amount of original expression bound up in it,” Mr. Falzone said. “It’s the reason it’s different to see King Lear at the Royal Shakespeare Company; it’s the reason it’s different when John Coltrane plays a jazz standard.”