Copyright Zombies

This article was originally published at The Ruby-Slippered Sisterhood blog in 2013, titled “Copyright Graveyard.” It is being reprinted today with permission from the author, Amanda Brice, who is also known as attorney Heather A. Sapp, the Training & Communications Manager at LegalForce RAPC.


‘Tis the season! No, we’re not talking about #TheWalkingDead. (We may be the only people in America not talking about it.)

We’re talking about ghosts and ghouls and things that go bump in the night. Spoooooky!

But today we’re going to talk about something even scarier — the thought of someone using your work without attribution.

Or is it actually scary? Perhaps it’s just the natural cycle of life.

Many legal scholars have used life as a metaphor for copyright. Once the copyright has “died,” the work is free from its past restrictions. This is the concept of the public domain as a sort of “copyright graveyard.” In Dastar Corp. v. Twentieth Century Fox Film Corp., the Supreme Court wrote “The right to copy, and to copy without attribution, once a copyright has expired, … ‘passes to the public.’ ” 539 U.S. 23, 33 (2003).

Currently, the term of copyright protection in the US — and in much of the world that adheres to the Berne Convention, the WIPO Copyright Treaties, and the WTO — is life of the author, plus 70 years. (It is life plus 50 under Berne but that merely provides a minimum standard — countries are free to offer greater protection.) But the term is longer in some countries, such as Mexico. There it’s life of the author plus 100 years.

Once a copyright “dies,” it is buried in the copyright graveyard of the public domain and then the public is free to use the work in any way they see fit. Hello, Jane Austen remakes. 🙂


Once works are in the graveyard, they should stay there, right? But what if those copyrights became zombies.

To the disappointment of many, in 2012 the Supreme Court held that entry into the public domain does not create permanent public accessibility. In Golan v. Holder, 132 S.Ct. 873, petitioners challenged the constitutionality of a statute restoring copyright in works by foreign authors that had fallen into the public domain in the US but were still protected in the author’s home country. The argument was that the statute was unconstitional under the Progress Clause and the First Amendment.

The Court held that the Progress Clause gave Congress the power to remove works from the public domain and “Nothing in the historical record, subsequent congressional practice, or this Court’s jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain.”

It was a 6-2 decision, with Justice Ruth Bader Ginsburg writing the majority opinion. (Incidentally, her daughter is one of the nation’s leading copyright scholars.) Ginsburg was joined by Justices Roberts, Scalia, Kennedy, Thomas, and Sotomayor. (If you know anything about these justices, you’ll see this is an eclectic group. Intellectual property law tends not to split on the same ideological grounds as most other issues.) The dissent was written by Justice Stephen Breyer and joined by Justice Alito. Justice Elena Kagan recused herself.

What does this mean in plain English?

The practical effect of the decision is to confirm that some works once free to use — such as Prokofiev’s Peter and the Wolf , several works of H.G. Wells, the works of Igor Stravinsky, the German expressionist epic science-fiction film Metropolis from Fritz Lang … all works that had falled into the public domain in the US — are no longer in the public domain and are subject to use only with permission of the copyright holder.

In other words, these works rose from the dead. I told you ’tis the season…


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