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Golan v. Holder: A Catalyst for Orphan Works Legislation?

By James Trigg and Phillip Rosenberg
February 28, 2012

On Jan. 18, 2012, the U.S. Supreme Court issued a 6-to-2 decision in Golan v. Holder, __ S.Ct. __, No. 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012), ruling that the Uruguay Round Agreements Act of 1994 (the “URAA”) ' which restores U.S. copyright protection for certain foreign works formerly in the public domain ' fits within Congress' constitutional authority to “adjust copyright law to protect categories of works once outside the law's compass.” Golan, 2012 WL 125436, at *11. Golan, like Eldred v. Ashcroft before it, solidifies the constitutional authority of Congress under the Copyright Clause to control the terms and duration of U.S. copyright protection.

Following the Court's decision in Golan, anyone wishing to use foreign works first published abroad between 1923 and 1989 may face increased cost and risk. Some of the renowned authors and creators whose works were first published abroad in this time period ' and whose works enjoy restoration under the URAA ' include M.C. Escher, Federico Fellini, Maxim Gorky, Alfred Hitchcock, C.S. Lewis, Vladimir Nabokov, George Orwell, Sergei Prokofiev, Pablo Picasso, Dmitri Shostakovich, Alexander Solzhenitsyn, J.R.R. Tolkien, and Virginia Woolf.

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