The Fight to Put Works by Picasso, Hitchcock, Stravinsky, and Others Back in the Public Domain
Our Constitution wisely gives Congress the power to pass copyright laws. A current Supreme Court case and new ACLU friend-of-the-court brief are a reminder, however, of why our courts need to have the ability to ensure that Congress uses that power in ways that are consistent with the other parts of the Constitution, including the First Amendment.
The federal law being challenged in this case — Section 514 of the Uruguay Round Agreements Act of 1994 — raises serious First Amendment issues because it granted copyright protection to foreign works that were previously in the public domain in the United States.
Earlier this week, we filed an amicus brief in the Supreme Court in connection with a challenge to Section 514 brought by a group of orchestra conductors, educators, performers, publishers, film archivists, and motion picture distributors. The government has attempted to defend the statute by claiming that the First Amendment does not even apply to this copyright law. That cannot and should not be the case.
This law has an enormous burden on speech. It grants copyright protection to millions of works. Many classics are involved, including:
- Symphonies by Shostakovich, Stravinsky, Prokofiev, and Rachmaninoff.
- Books by J.R.R. Tolkien, Joseph Conrad, George Orwell, Virginia Woolf, C.S. Lewis, and H.G. Wells.
- T.S. Eliot's classic poem, The Waste Land.
- Films by Federico Fellini and Alfred Hitchcock, including the 1934 version of Hitchcock's The Man Who Knew Too Much; and
- Artwork by M.C. Escher and Picasso, including Picasso's Guernica.
Before this law, all of us were free to use any of these public domain works, and the millions of by the statute, without restriction. Now, because the new copyright holders can prevent their works from being used or charge licensing fees that will be prohibitive for most people, innumerable core First Amendment activities relying on these public domain works — musical and dramatic performances, literary adaptations, and film showings and distributions, to name a few — will be forced to cease.
Copyright can be speech-enhancing. It can lead to the creation of new ideas and works of art by providing a financial incentive to individuals to create speech and by ensuring that all copyrighted works eventually fall into the public domain, where they can be used by others as inspiration to create new works, which will in turn spawn other new works, and so on. That is why the ACLU supports copyright in general, and it is why the Supreme Court has said that copyright can be an "engine of free expression." But that does not mean that all copyright laws are consistent with the First Amendment. When Congress crosses the line, as it did with Section 514, courts must be able to step in to ensure that the proper balance between copyright and free speech is maintained. Our First Amendment rights depend on it.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
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Free Speech
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Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
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Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.