Anthony Falzone, Executive Director of the Fair Use Project, is quoted by Adam Liptak in this New York Times article on Golan v. Holder, and how original expression, such as that used by Jimi Hendrix with the national anthem, could be stifled by granting copyright protection to works that had once been in the public domain.
Jimi Hendrix made an appearance at the Supreme Court on Wednesday in an argument over whether Congress acted constitutionally in 1994 by restoring copyright protection to foreign works that had once been in the public domain. The affected works included films by Alfred Hitchcock and Federico Fellini, books by C. S. Lewis and Virginia Woolf, symphonies by Prokofiev and Stravinsky and paintings by Picasso.
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.
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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."
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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."