Return of the Undead: Golan v. Holder and the Public Domain

In Golan, various orchestra conductors, musicians, publishers, and others who had enjoyed unfettered access to certain such works in the public domain filed suit, objecting that Congress, in enacting the Copyright Restoration Act, exceeded its authority under the Copyright and Patent Clause and under the First Amendment. The Copyright Restoration Act restored rights in works that passed into the public domain for any of three basic reasons: the United States did not protect works from the country of origin at the time of first publication abroad; the United States did not protect sound recordings fixed before 1972; or the author failed to comply with U.S. statutory formalities. When the United States joined Berne in 1989, it did not protect such foreign works that had fallen into the public domain here. In 1994, however, TRIPS required implementation of Berne's first 21 articles, including protection of works of other member states where copyright had not expired in the country of origin.

Given the singular nature of the subject legislation, Golan may have only limited impact on broader issues of copyright jurisprudence. Nor are there precise figures about the number of works the Restoration Act affects. Golan, 132 S.Ct. at 905. Thus, perhaps the most curious aspect of Golan is not what it says about the Copyright Restoration Act itself, but what it says about the Court's views of the public domain ' a subject that has surfaced repeatedly in recent years in numerous guises. In this respect, the modest significance invested in the public domain by Golan may ultimately have greater significance for trademark law than copyright or patent.