DU's Lawrence Golan is part of a lawsuit challenging the nation's copyright laws. Photo: Wayne Armstrong
During the past two decades, many small arts groups have faced financial difficulty performing or exhibiting a large number of works thanks to the nation’s copyright laws.
But that could all change if DU music professor Lawrence Golan persuades the Supreme Court to take his side this fall. As conductor of the Lamont Symphony Orchestra, Golan and other fine arts professionals around the country filed a lawsuit against the U.S. government in 2001 challenging the nation’s copyright laws.
In the United States, when artists create a work, they are granted copyright protection by the government. Copyright protection means anyone wanting to perform, display or publish a work must pay fees and receive permission from the original artist or his or her descendents to present that work. The origin of current U.S. copyright law is the Berne Convention, an international treaty that protects the copyrights of literary and artistic works essentially forever. The United States signed on to the convention in 1989.
Prior, artists lost copyright protection after a number of years and the work would enter the public domain, where anyone could purchase reproduction rights for a one-time nominal fee. Public domain allowed arts groups of all sizes to perform, display or reproduce that artwork as often as they wanted. However, when Congress signed the Berne convention, many pieces of music, paintings, books and films regained copyright protection after having been in the public domain.
“This affected thousands of pieces of music and hundreds of orchestras,” Golan says.
In the case of a musical work, Golan says, reinstating the copyright protection means paying up to $500 each time an artist or group wants to perform a work.
“We are challenging that law that took pieces out of the public domain so people can buy the music at reasonable prices and perform the music,” Golan says.
Large orchestras in major U.S. markets — such as New York and Los Angeles — don’t feel the effect of this legal arrangement as deeply as smaller orchestras do, Golan says. Large orchestras can afford to pay higher prices to rent and perform copyrighted music, and people in those communities are able to hear these performances. Small orchestras, on the other hand, usually can’t afford to rent copyrighted music, so they don’t play those pieces and people in the community don’t get to hear them.
A case in point: Lamont holds an annual concerto competition in which DU music students audition for a chance to play a solo with the Lamont Orchestra. Several years ago, Golan says a student asked him to sign an approval form for permission to play Prokofiev’s “Piano Concerto No. 3” for the audition. The orchestra did not already own this music and could not afford the $500 fee to rent the copyrighted music.
“We didn’t have the money in the budget and I had to tell the student ‘I can’t sign this form, you have to choose another piece,’” Golan says. “That’s an example of how this affects a smaller budget organization like ours.”
The law was intended to protect the descendents of artists and composers so they would receive royalty fees, Golan says.
“One thing I find really interesting is that the people who the law is supposedly protecting are actually getting hurt just as much from it,” he says. “In most cases, the pieces simply aren’t being played, so they’re not receiving royalties anyway.
“Composers live to have their music heard,” Golan says. “You could interview any of a thousand living composers and ask them, ‘100 years from now, if you had a choice between your music being under copyright and not being played versus in the public domain and being played all over the world,’ I guarantee all composers would say they want their music heard.”
Golan is the lead plaintiff in the case against the government, Golan v. Holder, which has gone through the federal District Court and 10th Circuit Appeals Court system twice during the past 10 years.
“I could tell you what one judge with her previous ruling had said, which sums it up perfectly,” he says. “She said, and I’m paraphrasing here, ‘Unfortunately it’s not our job to decide what’s right or wrong or what makes common sense, it’s only our job to decide if something is constitutional or not,’ implying it’s a no-brainer that this is not a good thing. But, that’s not what the courts decide up and down on.”
Anthony Falzone, lead attorney for the case and executive director of the Fair Use Project at Stanford University, says there are two main components to their argument. First, they are challenging one part of the Constitution’s progress clause, which states that Congress only has the right to protect artistic works for a limited time.
“It’s our position that this prohibits Congress from taking works out of the public domain,” he says. “Once it enters the public domain, Congress is not empowered to take it out of the public domain.”
Also, Falzone says, the First Amendment protects the free speech rights of all Americans, which includes the right to perform music, publish books, display artwork and show films.
He says the case is important because it affects Americans’ right to watch, perform and share music, literary and artistic works. But it also affects the people’s right to creativity itself. If people are afraid Congress can take materials out of the public domain whenever it wants, they won’t invest their resources in them or use them as inspiration for their own creativity anymore, Falzone says.
The Supreme Court has agreed to hear the case, which could happen in October or November.