Abstract

This article will review the constitutionality of Congress continually extending copyright
terms throughout the 20th century by examining Golan v. Holder, 565 U.S. 302 (2012) and the
evolution of copyright law from the first mention of it in the Constitution through the most recent copyright law of the 20th century, the Sonny Bono Copyright Term Extension Act of 1998. It will also touch upon the only case used as precedent for Golan v. Holder, 565 U.S. 302 (2012), Eldred v. Ashcroft, 537 U.S. 186 (2003) which was similarly about how Congress has
overstepped their powers by continuously extending copyright terms. The case of Golan v.
Holder, 565 U.S. 302 (2012) questions Congress’s authority over taking works out of the public
domain. The case was petitioned by a group of musicians, publishers, orchestra conductors, and
others who previously enjoyed free access to the works that were taken out of public domain,
including those by C.S. Lewis, Alfred Hitchcock, and Pablo Picasso, became copyrighted. This
was due to the United States joining the Berne Convention, requiring them to protect the work of other member countries unless the copyright expired. As is seen in the evolution of copyright
law, Congress continuously extends protection. While there is no permanent copyright protection law in place, who is to say Congress won’t cross that boundary in the near future.

Introduction

Almost everything is copyrighted or can be copyrighted. Many paintings, films, songs,
and books grant exclusive rights to their authors. To use any part of any copyrighted work,
someone must pay for the rights. Works that are not copyrighted are in the public domain, which
anyone can use for free. It is understandable why there might be some public outcry when worksoriginally in the public domain receive more protection and are taken out of it. The U.S.
Supreme Court case of Golan v. Holder, 565 U.S. 302 (2012) further established Congress’s
constitutional power in expanding copyright law even if they should not.

Summary/Holding

The Supreme Court case of Golan v. Holder, 565 U.S. 302 (2012) questions the
constitutionality of whether Congress should be allowed to take works out of the public domain.
The United States became a party to the Berne Convention for the Protection of Literary and
Artistic Works (aka the “Berne Convention”) in 1989. Article 18 of Berne requires countries to
protect the works of other member countries unless the works’ copyright term has expired in
either the country where protection is claimed or the country of origin. So, Congress applied the
term of protection available to United States works that were previously unprotected. Section
514 of the Uruguay Round Agreement Act (URAA) granted copyright protection to works
protected in their country of origin that originally lacked protection in the United States. The
URAA was passed in 1994 when the United State was obligated to do so after agreeing to the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO). TRIPS was compliant with the Berne Convention although it did also “provided additional obligations regarding enforcement that are subject to dispute resolution at WTO.” This included copyright law.¹ As a result of Section 514, after being previously barred from U.S. copyright protection, foreign works were restored to protection and have been removed from the public domain in the United States.²

The petitioners of Golan v. Holder, 565 U.S. 302 (2012) consisted of orchestra conductors, musicians, publishers, and others including Lawrence Golan who formerly enjoyed free access to works Section 514 removed from the public domain. The respondent was Eric H. Holder, Jr., the U.S. Attorney General at the time. In 2005, the petitioners of the case claimed that in passing Section 514, Congress exceeded its authority under the Copyright Clause, extending beyond the limitations of the First Amendment. “In 2009, the District Court said Section 514’s constriction of the public domain was not justifiable by any federal interest and violated the First Amendment. On appeal, the Tenth Circuit, examining the constitutionality of Section 514 under intermediate scrutiny, ruled that it did not violate the First Amendment because it advanced the states’ interest of protecting the copyrights of American works in foreign countries.”³

In 2011, the Supreme Court held that Holder was in the right. The majority opinion and holding, written by Justice Ruth Ginsburg with Chief Justice Roberts, Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Sotomayor, affirmed the lower court in that Congress did have power to enact Section 514 and the Uruguay Round Agreement. “Based on prior copyright law, public domain is not untouchable, and congress may grant protection to previously unprotected works.”⁴ They did not agree with Golan’s argument that taking works out of the public domain go against the constitutional “limited Times” requirement that was mentioned in another copyright case, Eldred v. Ashcroft, 537 U.S. 186 (2003). The dissent, written by Justice Breyer with Justice Alito in agreement, said that Section 514 and the Uruguay Round Agreement did violate the First Amendment because they do not promote the production of new works. Justice Kagan refrained from giving an opinion in this case.

Works That Were Affected by this Case

Millions of original works that had previously been part of the public domain were affected by Golan v. Holder, 565 U.S. 302 (2012). Many of them people view in art museums, check out of libraries, or listen to more often than one would imagine. Some of the most notable works affected include symphonies by Sergei Prokofiev, Igor Stravinsky, and Dimitri Shostakovich; books by C.S. Lewis, Virigina Woolf, and H.G. Wells; films by Federico Fellini, Alfred Hitchcock, and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso (including one of his most famous paintings, “Guernica”).⁵ Once works are in the public domain, they belong to the public and remain property of the public, meaning they are free to use. The purpose of this was to provide a limit on intellectual property and to prevent anyone from monopolizing an idea. A huge shift can be seen today in the public domain compared to the original intentions of the framers of the Constitution.

Evolution of Copyright Law

Before 1896, works not copyrighted were referred to by the courts as “public property” or “common property.” It was in 1896 when the U.S. Supreme Court first took the term “public domain” from French law. ⁶ Throughout the years, copyright laws have been protecting more works and taking them out of the public domain. This was seen in Golan v. Holder, 565 U.S. 302 (2012) where the U.S. Supreme Court yet again sided with Congress. This has sparked much debate as to whether copyright protection is good for the author and allows them to benefit financially. If a work is protected for too long, even after an author is dead and the main appeal of reaping financial reward for their work directly is impossible, it becomes more difficult for people to gain access to the works and use them to build their own ideas upon.

Golan v. Holder, 565 U.S. 302 (2012) shows the court’s inactivity in ensuring Congress does not overstep their power in expanding copyright laws. Historically, Congress has only granted more protection for copyrighted works when modifying copyright law. Perhaps there should be a limit at some point. There have not been any laws restricting copyright in any way. If companies monopolize certain ideas and use them to make a profit for themselves years after the author has passed, this lack of regulation could prove to be a problem. Once a copyright is no longer serving the original author, it should expire.⁷

I. The Copyright Clause of the Constitution

U.S. Const. art. I, § 8, cl. 8 outlines Congress’s power over intellectual property, including copyrights. This clause is referred to as the Intellectual Property Clause, or sometimes the Patent Clause, the Copyright Clause, or the Patent and Copyright Clause. The copyright section of the clause details its intention for Congress to give “Authors” exclusive rights to their “Writings” to “promote the Progress of Science.” At the time of the Constitution, the “Progress of Science” meant anything that related to the creation and spread of knowledge and learning.⁶ Without legal protection, others can just copy others’ creations and deny the original creators the ability to reap the social and possible economic reward/recognition for their work.

There are two limitations to this clause. The first is that the exclusive rights can persist only for “limited Times.” This was the argument used by the petitioners in Golan v. Holder, 565 U.S. 302 (2012). This provision is meant to prohibit Congress from providing perpetual copyright, although the protection can be a long term. The second limitation is that the exclusive rights must promote the progress of science or useful arts, however the Courts often refer to Congress for what counts as such. One copyright-specific limitation of the clause is that only original works can be copyrighted since “copyright extends only to the ‘Authors’ of ‘Writings.’”6

In Golan v. Holder, 565 U.S. 302 (2012), the argument is that by extending the copyright protections of works originally in the public domain, the extension of copyright law does not violate the “limited Times” provision according to the Court; however, there is a solid argument for the provision being too broad. While it explicitly states that Congress cannot extend the copyright forever, nothing is stopping them from extending the copyright for many, many years, however long that may be. Though copyright law is not stopping Congress from continuously extending copyright periods, if they continue to extend the protection in increments, they might as well be extending it forever.

II. Copyright Act of 1790⁸

The Copyright Act of 1790 is the first copyright law following the Intellectual Property Clause in the Constitution. This law predates the ratification of the First Amendment and Bill of Rights. It was intended for “encouragement of learning.”⁹ All authors had to do to secure their copyright/exclusive right to their work was to deposit and register a copy with the clerk of a local federal district court and deposit one copy with the U.S. secretary of state. The copyright term lasted for fourteen years and could be extended once for another fourteen years. This law was passed just three years after it was originally mentioned in the Constitution. Although it is basically a clarification with more details on how to copyright one’s work, this happened very quickly since copyright is first mentioned in United States law. Even since the beginning, copyright extension has been rapidly expanding, as is shown in future copyright laws as well.

III. Copyright Act of 1831¹⁰

The Copyright Act of 1831 was essentially the same as the Copyright Act of 1790 exceptnit included protection for musical compositions. “This law also extended copyright from fourteen years to twenty-eight years while keeping a renewable fourteen year-option.”¹¹ The revision was made when Congressman William Wolcott Ellsworth felt that American copyright law was behind European copyright law and wanted to extend copyright protection like they had. This law was passed around just thirty-one years after the previous law was passed, the Copyright Act of 1790. In the grand scheme of things, this was very shortly after. Copyright is difficult to handle because it must constantly adapt to protect new forms of media, which was the purpose of this law; however, expanding what is protected does not mean that the term of protection must be expanded as well. While fourteen to twenty-eight years with an extra possible fourteen years is not incredibly long, it is already an increase from barely forty years before. If Congress keeps going at this rate, copyright protection will last much longer than it needs to. This can be seen as copyright law evolves in the future. This is like what happened in Golan v. Holder, 565 U.S. 302 (2012) since that case extended protection of foreign works that were protected in other countries of the Berne Convention, but not in the United States. This Copyright Act of 1831 shows that the United States has always used foreign copyright law as an excuse to (as will be seen endlessly) expand their laws.

IV . Copyright Act of 1909¹²

The Copyright Act of 1909 consisted of provisions for unpublished works as well as copyright for published works. “Unpublished works were protected by state copyright law, but published works without proper notice fell into the public domain”¹³ The copyright term was still twenty-eight years, but the author was able to renew it for an additional twenty-eight years; however, the author was able to terminate the transfer of their copyright between the original and renewal term. This law was also the first time where a musical composition was allowed to be reproduced without the consent of the author who copyrighted it. This law is also the first time the public domain is explicitly mentioned in the law. This contradicts what happened in Golan v. Holder, 565 U.S. 302 (2012) because the case shrunk public domain, while the Copyright Act of 1909 develops it.

V . Copyright Act of 1976¹⁴

The Copyright Act 1976 forms the basis of copyright law that is used in the United States today. The Supreme Court used this law to make their decision in Golan v. Holder, 565 U.S. 302 (2012). This law states that protected works gain protection once they are created until the time of the author’s death plus an additional seventy years. This is more uniform with other copyright laws in other countries. The biggest change introduced in this law was the creation of federal copyright protection for every work immediately once they are first fixed in a tangible form of expression. The law took effect on January 1st, 1978, and it extended copyright protection to all original works of authorship to consider new kinds of media. Congress used expansive language to avoid having to consistently amend copyright laws to account for the development of new technologies and means of expression like photography, motion pictures, or recordings.¹⁵

The Copyright Act of 1976 incorporated the concept of fair use (the Fair Use Doctrine). This created a balancing test based on if “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and sustainability of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market for or value of the copyrighted work.”¹⁶ This was intended to prevent copyright protection from violating the First Amendment’s guaranteed rights of freedom of speech and press. This Fair Use Doctrine was used as a safeguard within the Copyright Act of 1976 which is still followed today. It gives more leeway in what copyrighted works the public can use. This is very different from the ruling in Golan v. Holder, 565 U.S. 302 (2012) because in that case, it limited the use of published works by taking them out of the public domain. It is now illegal to use works that people have been using for years or influencing their work from; however, neither the Fair Use Doctrine nor the Copyright Act of 1796 disputes that Congress has the power to take works out of public domain, which was the ruling in Golan v. Holder, 565 U.S. 302 (2012). No copyright law has limited Congress’s power but by expanding copyright law, it is not keeping their power in check either.

VI. Sonny Bono Copyright Term Extension Act (1998)¹⁷

The Sonny Bono Copyright Law (after the singer/politician) aka the CTEA, extended the terms of existing and future copyrights by twenty years. This made it so that copyrights would be protected up until seventy years after the author’s death. This would stop any works from falling into the public domain from 1999 through 2019. The copyright law extended the copyright term from L years to seventy years after the author’s death, a twenty-year extension from the Copyright Act of 1976. This lengthy extension of copyright protection has been challenged in Eldred v. Ashcroft, 537 U.S. 186 (2003) and later in Golan v. Holder, 565 U.S. 302 (2012) but yet again, the Supreme Court denies Congress is exceeding their power in expanding copyright protection. The term of copyright protection started at fourteen years in 1790 and over CC years later, it is a lifetime plus seventy years. Congress has a pattern and it does not seem like they will slow down in terms of copyright protection. The limit of copyright protection has not been reached yet and if continued, perhaps the debatable “limited Times” clause will finally be breached like it should have already been.

Eldred v. Ashcroft, 537 U.S. 186 (2003) & Its Relation to Golan v. Holder, 565 U.S. 302 (2012)

The only case used as precedent in Golan v. Holder, 565 U.S. 302 (2012) was Eldred v. Ashcroft, 537 U.S. 186 (2003). This case questioned whether the 1998 Copyright Term Extension Act (CTEA)’s extension of existing copyrights exceeds Congress’s power under the Copyright Clause. The petitioners, including Eric Eldred, consisted of groups of people who were in the business of republishing and those who used works that had fallen into the public domain after the expiration of copyright protection. The respondent was John D. Ashcroft, the U.S. Attorney General at the time. The petitioners claimed the CTEA violates the Copyright Clause’s “limited Times” prescription and the First Amendment’s free speech right. They argued that Congress cannot extend the copyright term for published works with existing copyrights. The District Court of and the District of Columbia Circuit disagreed.¹⁸

In a 7-2 decision delivered by Ruth Bader Ginsburg, in agreement with Chief Justice Rehnquist, Justice O’Connor, Justice Scalia, Justice Kennedy, Justice Souter, and Justice Thomas, the Court held that Congress did not violate the First Amendment nor did they exceed their power. The majority opinion of the court agreed with the lower courts’ decision and sided with Ashcroft. The Court held that the CTEA “‘continues the unbroken congressional practice of treating future and existing copyrights in parity for term extension purpose.’”¹⁹ The Copyright Clause protects this. The dissent, written by Justice Breyer and Justice Stevens, argued that the CTEA is unconstitutional because it extends the terms of already used copyrights which restricts expression and eliminates future creativity and artistic works from new authors.

Both Eldred v. Ashcroft, 537 U.S. 186 (2003) and Golan v. Holder, 565 U.S. 302 (2012) deal with the constitutionality of the laws relating to the Copyright Clause and if it violated the First Amendment. In both cases, the petitioners’ arguments were rejected on the basis that Congress was not abusing their power by expanding the scope of copyright beyond pre-existing limitations from the First Amendment. Eldred v. Ashcroft, 537 U.S. 186 (2003) was used to support the interpretation of the Constitution’s “limited Times” as used in Golan v. Holder, 565 U.S. 302 (2012). The previous case had interpreted it as to mean “‘circumscribed in some way’ and did not feel the need to speak on hypothetical misbehavior.”²⁰ Referring to Eldred v. Ashcroft, 537 U.S. 186 (2003), they used that case to hold in Golan v. Holder, 565 U.S. 302 (2012) that there are already speech-protective purposes and safeguards provided by copyright law; there was a built-in First Amendment accommodation.

The two cases were so similar, “some commentators have expressed dismay that the Golan decision does not seem to deviate in any meaningful way from Eldred.” ¹⁴ All the justices who were part of the majority ruling for Golan v. Holder, 565 U.S. 302 (2012) were also part of the majority ruling for Eldred v. Ashcroft, 537 U.S. 186 (2003), if they were still on the Court (Justice Ginsburg, Justice Scalia, Justice Kennedy, Justice Thomas). Justice Breyer even wrote the dissent for both cases. This shows how copyright protection has been steadily expanding, possibly because the same people continue to back it. Indeed, Eldred v. Ashcroft, 537 U.S. 186 (2003), and Golan v. Holder, 565 U.S. 302 (2012) are practically the same case and shows the Court’s stubbornness in evolving copyright law protections.

Impact of Golan v. Holder, 565 U.S. 302 (2012) & Opinion

Golan v. Holder, 565 U.S. 302 (2012) has reaffirmed the lengthy extensions of copyright law. It proves that Congress can take original works out of public domain if they choose to. This raises concerns from the public, especially who work in producing or using creative works, because there are no restrictions on Congress’s part in preventing them from continuously extending copyright terms and this restricted free expression; however, others like the “American Intellectual Property Law Association (AIPLA) argue that declaring Section 514 of URAA, which the case resulted in, promotes progress because by not having the works in public domain, it encourages new ideas.”¹³

Conclusion

Golan v. Holder, 565 U.S. 302 (2012) asserts it is very difficult for Congress to reach the limits in place for violating the First Amendment. By continuously extending copyright protection and limiting works in the public domain, it can be seen as an overstep of their powers. This violates the First Amendment of many people, specifically people involved in using or making creative works, by reducing their ability to use other works. While it is important that the original ideas are protected and credited to the author, there should be boundaries. Copyright protection is not needed forever and while that is not the law in place, it looks like that is the path Congress is on.

Endnotes

¹ United States Copyright Off., Copyright Restoration Under the URAA, United States Copyright Off. (Jan.,2013), https://www.copyright.gov/circs/circ38b.pdf

² John R. Vile, Golan v. Holder (2012), Free Speech Ctr., Middle Tennessee State Univ. (Jul. 30, 2023), https://firstamendment.mtsu.edu/article/golan-v-holder/.

³ Brandon Michael Bodnar & Milson Charles Yu, Golan v. Holder, Legal Information Institute, Cornell Law Sch.(2011), https://www.law.cornell.edu/supct/cert/10-545.

⁴Oyez, Golan v. Holder, Oyez, https://www.oyez.org/cases/2011/10-545 (last visited Nov. 18, 2025).

⁵ Standard Law Sch., U.S. Supreme Court will Review Constitutionality of Restoring Copyrights in Foreign Works:Court Grants Cert in Stanford Law School Fair Use Project Case Golan v. Holder, Standard Law Sch. (Mar. 11, 2011), https://law.stanford.edu/press/u-s-supreme-court-will-review-constitutionality-of-restoring-copyrights-in-foreign-works-court-grants-cert-in-stanford-law-school-fair-use-project-case-golan-v-holder-3/#:~:text=Lewis%2C%20Virginia%20Woolf%2C%20and%20H.G.,(10%2D545).

6 Tyler L. Ochoa, Origins and Meanings of the Public Domain, Santa Clara Univ. Sch. of Law (2002), https://digitalcommons.law.scu.edu/facpubs/80/.

⁷ ArtI. S8.C8.1 Overview of Congress’s Power Over Intellectual Property, Constitution Annotated https://constitution.congress.gov/browse/essay/artI-S8-C8-1/ALDE_00013060/ (last visited Nov. 18, 2025).

⁸ Copyright Act of 1790, 1 Stat. 124 (1790)

⁹ Kevin R. Davis, Copyright Act of 1790, Free Speech Ctr,, Middle Tennessee State Univ. (Jan. 1, 2009),https://firstamendment.mtsu.edu/article/copyright-act-of-1790/.

¹⁰  Act of Feb. 3, 1831, ch. 16, 4 Stat. 436

¹¹ U.S. Copyright Off., The Lifecycle of Copyright, U.S. Copyright Off., https://www.copyright.gov/history/copyright-exhibit/lifecycle/ (last visited Nov. 17, 2025).

¹² Copyright Act of 1909, Pub. L. No. 60-349, 35 Stat. 1075 (1909)

¹³  Frank Evina, First General Revision Gave Copyright to Musical Compositions and Extended Term,U.S. Copyright Off., https://www.copyright.gov/history/lore/pdfs/200611%20CLore_November2006.pdf (last visited Nov. 17,2025).

¹⁴Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976)

¹⁵ Geoffrey P. Hull, Copyright Law of 1976 (1976), Free Speech Ctr., Middle Tennessee State Univ. (Jul. 2 2024), https://firstamendment.mtsu.edu/article/copyright-act-of-1976/.

¹⁶ Geoffery P. Hull, Fair Use, Free Speech Ctr., Middle State Tennessee Univ. (Jan. 1 2009), https://firstamendment.mtsu.edu/article/fair-use/.

¹⁷ Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998)

¹⁸ Geoffrey P. Hull, Eldred v. Ashcroft (2003), Free Speech Ctr., Middle Tennessee State Univ. (Feb. 4, 2025), https://firstamendment.mtsu.edu/article/eldred-v-ashcroft/#:~:text=Writing%20for%20the%20majority%20(7,%2C%20news%2C%20and%20so%20forth.

¹⁹ Oyez, Eldred v. Ashcroft, Oyez, https://www.oyez.org/cases/2002/01-618 (last visited Nov. 17, 2025).

²⁰ UC Berkeley Sch. of Law, Golan v. Holder and the URAA’s Impact on the Public Domain, Berkeley Technology Law Journal, UC Berkeley Sch. of Law (Apr. 9, 2012), https://btlj.org/2012/04/golan-v-holder-and-the-uaas-impact-on-the-public-domain/#:~:text=The%20petitoners%20in%20Eldred%2C%20individuals,any%20meaningful%20way%20from%20Eldred.