Established opera companies and symphonies should not be hurt seriously by the U.S. Supreme Court's decision last week upholding a law that moved the work of composers such as Sergei Prokofiev and Dmitry Shostakovich from the public domain to copyright protection.
Timothy O'Leary, general director of Opera Theatre of St. Louis, said in an interview, "It is possible that (the decision) will add some additional costs but not substantially." O'Leary said that about one of Opera Theatre's four productions each season is under copyright, but that "we don't make decisions about what operas to perform" based on whether royalties are due.
In a 6-2 decision, the Supreme Court ruled that Congress did not violate the First Amendment by taking works in the public domain and placing them under copyright protection. Works in the public domain may be performed without royalties, while copyright protection requires royalties.
The law that the court upheld extended copyright protection to works of foreign artists from the early 20th century who created their works at a time when U.S. law did not provide them with copyright protection. In addition to Russian composers such as Prokofiev, Shostakovich and Igor Stravinsky, the law also applied to paintings by Pablo Picasso, movies by Alfred Hitchcock and books by authors such as C.S. Lewis and Virginia Woolf.
The case had been brought by Lawrence Golan, a University of Denver professor who conducts a number of small orchestras. He argued that a substantial new burden would be put on such small arts organizations by requiring royalties for pieces such as Prokofiev's Peter and the Wolf, Shostakovich's Symphony 14 and Stravinsky's Petrushka.
In recent years, the United States has become such a strong advocate of copyright worldwide that people forget that more than a century ago, a U.S. senator described his own country as "the Barbary coast of literature" and its people as "the buccaneers of books."
To protect domestic publishers, Congress did not extend copyright protections to most foreign artists, composers and authors. In 1994 Congress passed a law to remedy that situation by extending copyright protection to foreign works created between 1923 and 1989.
Golan argued that Congress couldn't take works in the public domain and put them under copyright protection. He maintained that this was not a constitutional exercise of Congress' copyright powers because the copyright clause says the purpose is to "promote the progress of science and useful arts." Extending protection to works already created does not promote new scientific discoveries or artistic creations, Golan argued.
Even if the 1994 law were consistent with Congress' copyright power, it violated the First Amendment, Golan argued, by removing works from the public domain.
But Justice Ruth Bader Ginsburg, writing for the six-justice majority, rejected both arguments. She noted that the first Congress had extended copyright protection to works that had not previously had copyright protection.
She also noted that the law puts Prokofiev's works on the same footing as those of American composers of the same era, such as Aaron Copland or Leonard Bernstein.
The public domain is not a "category of constitutional significance," Ginsburg wrote. Congress has broad power to extend the reach of copyright as long as it does not abuse its power, she wrote.
Ginsburg said that the public access to creative expression is protected in part by the continued recognition of the distinction between ideas and expression. Copyright protects an individual's expression but cannot keep the public from using an idea expressed.
Alan Howard, a First Amendment expert at Saint Louis University Law School, explained in an email: "If you believe that the First Amendment guarantee of free speech at its core is about protecting ideas, opinions, information, then Golan and indeed copyright law as such does not pose a central threat to free speech."
Howard agreed that "something is lost by forcing an individual to pay others to use their expression.... That loss does count for something for free speech clause purposes -- especially if in the past the expression was in the public domain and now it has been removed from the public domain for a period of time.
"But again what is taken out of the public domain is one person's use for free of another person's expression and not one's use of another's ideas, opinions, facts... I don't see Golan as a case where the issue implicated what I see as the core concerns of the free speech clause -- government censorship of ideas, opinions or information."
O'Leary of Opera Theatre said that the royalties paid for operas run from 4 to 10 percent of gross ticket receipts.
He added that he has "the greatest respect for the whole intention of intellectual property law. If you think back to the history of music, you realize that Mozart could not earn a living because there was no copyright protection and therefore the only way he could earn more money was to write something new, even though his works were being performed.
"Having said that," he added, "the idea that a work could be in the public domain and then go back into copyright protection does make you worry that someone might abuse this idea and create unnecessarily protective copyright protections around works long since in the public domain. But we'll have to see how it plays out."
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. This article originally appeared in the St. Louis Beacon.