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Stanford Law School's Fair Use Project Asks Supreme Court to Rule on Constitutionality of Restoring Copyrights in Foreign Works

Publication Date: 
October 20, 2010
Stanford Law School

Case affects the status of many famous works, including symphonies by Shostakovich and Stravinsky, books by Virginia Woolf, artwork by Picasso, films by Fellini and Hitchcock

STANFORD, Calif., October 20, 2010—Lawyers from Stanford Law School’s Fair Use Project (FUP) and Wheeler Trigg O’Donnell LLP filed a petition for a writ of certiorari today, asking the United States Supreme Court to review the constitutionality of a federal statute that removes thousands of foreign works from the Public Domain and places them under copyright protection. The FUP filed the petition on behalf of orchestra conductors, educators, performers, film archivists and motion picture distributors who relied for years on the free availability of works in the Public Domain, which they performed, adapted, restored and distributed. A 1994 amendment to the Copyright Act, the Uruguay Round Agreements Act (URAA), removed these works and many others from the Public Domain and placed them under copyright protection in conjunction with the implementation of intellectual property treaties. That amendment affected the copyright status of thousands of works by foreign authors that had been in the Public Domain in the United States for decades, including symphonies by Sergei Prokofiev, Igor Stravinsky, and Dmitri Shostakovich; books by C.S. Lewis, Virginia Woolf, and H.G. Wells; films by Federico Fellini, Alfred Hitchcock, and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso, including Picasso’s masterpiece Guernica.

Petitioners Lawrence Golan, Estate of Richard Kapp, S.A. Publishing Co., Inc., Symphony of the Canyons, Ron Hall, and John McDonough originally filed suit in 2001, contending that in enacting the URAA Congress exceeded its Article I power and violated the First Amendment. A lower court rejected both claims and dismissed the case in 2005. In a 2007 decision, the Tenth Circuit revived petitioners’ First Amendment challenge. Following that decision, the same lower court held the URAA was unconstitutional under the First Amendment. The Tenth Circuit reversed that decision this summer, holding the URAA did not violate the First Amendment. Golan and his fellow petitioners are now asking the Supreme Court to review that decision.

“This goes back to the most basic premises of intellectual property: once a work of authorship or an invention is placed in the Public Domain, it belongs to the public, and remains the property of the public – free for anyone to use for any purpose. That principle was respected for more than 200 years, because it represents a critical limit on the intellectual property ‘monopoly’ the Framers authorized,” explained FUP Executive Director Anthony Falzone, who is counsel of record for the petitioners. “What Congress did here is a huge departure from those basic principles. It deserves the attention of the Supreme Court.”

The specific constitutional provisions at issue in the case are the Progress Clause (Article I, Section 8, Clause 8) and the First Amendment. The Progress Clause—sometimes called the “Copyright Clause”—gives Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Petitioners contend that removing material from the Public Domain violates the “limited times” restriction and the URAA as enacted does not “promote the Progress of Science and the useful Arts.” Petitioners contend the URAA violates the First Amendment because it is not narrowly tailored to any important government interest.

“We’re saying Congress cannot take the public’s property and hand it over to foreign authors,” added Julie Ahrens, Associate Director of the FUP and counsel on the case. “The right to perform a symphony, or distribute a film, is an important expressive freedom. Congress’s decision to take that freedom away demands close First Amendment scrutiny. If Congress is permitted to do that at all, it should be only for the most important reasons. The Tenth Circuit’s decision in this case suggests Congress can give away pieces of the public domain simply so authors can make more money on works they created long ago. We don’t think that’s correct.”

A copy of the cert. petition is available here

About the Fair Use Project

The Fair Use Project (the “FUP”) was founded in 2006 as part of the Stanford Law School Center for Internet and Society. Its purpose is to provide legal support to a range of projects designed to clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom. The Project’s homepage is at:

About the Center for Internet and Society

The Center for Internet and Society is a public interest technology law and policy program at Stanford Law School and a part of the Law, Science and Technology Program at the law school. The Center’s homepage is at:

About Wheeler Trigg O'Donnell

Wheeler Trigg O’Donnell (WTO) is a civil litigation firm located in Denver, Colorado. Its 62 lawyers help clients resolve disputes that threaten their businesses, brands, products, people, and customers. WTO lawyers handle trial, appeals, arbitrations, and related areas of complex civil litigation, including class actions and multidistrict litigation, often as national or regional trial counsel, for many of the nation’s best-known companies in a wide variety of industries. Its homepage is at:

About Anthony Falzone

Anthony Falzone is executive director of the Fair Use Project at Stanford Law School and lecturer in law. He is an intellectual property litigator who has represented media and technology clients in a wide array of intellectual property disputes including copyright, trademark, rights of publicity, and patent matters. He speaks frequently on copyright and fair use issues. Prior to joining Stanford Law School, Falzone was a partner in the San Francisco office of Bingham McCutchen LLP.

About Julie Ahrens

Julie Ahrens is associate director of Stanford Law School’s Fair Use Project, where she represents writers, filmmakers, musicians, and others who rely on fair use in creating their art, documentaries, scholarship, critiques, or comments. Before joining Stanford, Julie was a litigation attorney in the San Francisco office of Kirkland & Ellis LLP.

About Stanford Law School

Stanford Law School ( is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, produce outstanding legal scholarship and empirical analysis, and contribute regularly to the nation's press as legal and policy experts. Stanford Law School has established a new model for legal education that provides rigorous interdisciplinary training, hands-on experience, global perspective and focus on public service, spearheading a movement for change.



Anthony Falzone
Executive Director, Fair Use Project
Stanford Law School

For Stanford Law School Judith Romero
Associate Director of Media Relations
Stanford Law School