Using the First Amendment to Grandfather Public Domain Use of Restored Copyrights

Congress amended U.S. copyright law in 1988 in order to provide authors with automatic copyright upon creation of their works, without the formality of registration. In 1994, Congress addressed the issue of existing works of foreign authors, which works had entered the public domain because the authors had not complied with the then-existing (pre-1988) registration requirements. The result was the restoration of the copyrights of many works that had been in the public domain.

Businesses that had relied on public domain rights that were revoked by the 1994 act brought suit, claiming that the act violated First Amendment rights of free expression. The federal district court dismissed the suit in Golan v. Ashcroft, 310 F.Supp.2d 1215 (D. Colo. 2004), but the Court of Appeals for the Tenth Circuit reversed the decision and sent the case back for reconsideration. Upon reconsideration, the district court found that the restoration of copyright to works in the public domain was a violation of the First Amendment. Golan v. Holder (D. Colo., April 3, 2009). However, further appeals by the copyright owners are expected.