Golan v. Holder — Congress May Restore Copyright to Foreign Works in the Public Domain

Background

For decades, millions of foreign works — symphonies, books, films — were freely available in the United States because they had entered the public domain, often due to a failure to comply with U.S. copyright formalities (like registration or affixing a copyright notice) that did not apply in their home countries. Orchestras performed Shostakovich and Prokofiev without licensing fees; filmmakers used Fellini footage; educators freely distributed foreign literary works.

In 1994, as part of compliance with the TRIPS Agreement (part of the Uruguay Round trade deal), Congress enacted §514 of the Uruguay Round Agreements Act, which “restored” copyright in qualifying foreign works. These works were yanked back out of the public domain and given protection for the remainder of the term they would have enjoyed had U.S. formalities not cut it short. Lawrence Golan and other musicians, conductors, and educators sued, arguing this exceeded Congress’s power and violated the First Amendment by recriminalizing expression that had been freely available.

The Court’s Holding

Justice Ginsburg wrote for a 6–2 majority upholding §514. On the Copyright Clause, the Court found no historical or textual basis for the plaintiffs’ argument that Congress cannot remove works from the public domain once they get there. Prior congressional practice (including earlier restoration statutes) and the Founding-era history showed no such absolute bar. The Court reaffirmed its Eldred (2003) approach: Congress has broad discretion over copyright policy.

On the First Amendment, the Court again relied on copyright law’s built-in speech safeguards — the idea/expression dichotomy and fair use. The Court noted that restored works remained subject to fair use defenses, and that §514 included a specific carve-out for “reliance parties” — those who had invested in using the formerly public-domain works — giving them a grace period to wind down or negotiate licenses.

Key Takeaways

• There is no constitutional bar to Congress restoring copyright to works that have previously entered the public domain in the United States.
• The Copyright Clause grants Congress broad, deference-worthy discretion over copyright policy, including the shape and extent of the public domain.
• The First Amendment does not impose special protection for works that were once freely usable — copyright’s internal doctrines provide sufficient accommodation.
• “Reliance parties” who had built businesses on formerly public-domain works received some statutory protection, but ultimately had to comply with the restored copyrights.

Why It Matters

Golan dramatically expanded the concept of what Congress can do with copyright law. Before this decision, most legal scholars believed the public domain was a one-way door — once there, always there. The Court rejected that view, holding that Congress can reach into the public domain and pull works back out to satisfy international trade obligations or other policy goals.

The practical impact fell hardest on performing arts organizations, educational institutions, and filmmakers who had relied on the free availability of foreign masterworks. Golan pairs with Eldred to establish a nearly unlimited congressional power over copyright duration and scope, limited only by the outer boundary of perpetuity. For anyone working with archival or historical content, the case is a reminder that public-domain status under U.S. law is not always permanent.