Priced Out: The Build-up to Golan v. Holder and Its Enduring Legacy

By Grant Scharer '28

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Prior to the late 19th century, foreign authors were without any form of copyright protection in the United States, and several publishing houses focused solely on exploiting this oversight. These businesses “indiscriminately reprinted books by foreign authors without even the pretense of acknowledgement,” (1) and their conduct was indirectly encouraged by a tariff on imported goods that reached as high as twenty-five percent. (2) After decades of pressure to reform international copyright law from influential Americans like Kentucky Senator Henry Clay and Little Women author Louisa May Alcott, Congress addressed the issue and passed the International Copyright Act of 1891. (3) Better known as the Chace Act, this measure offered foreigners copyright protection in the United States for the first time with a few key stipulations. It offered copyright protection to foreigners as long as their country granted copyright protection to Americans, and it also required that all English-language works be produced in either the United States or Canada to be protected. (4) Despite these guardrails, the Chace Act established the precedent that the United States was willing to take foreign works out of the public domain and place them under copyright protection, and it is this very precedent that led to the Supreme Court’s indelible ruling in Golan v. Holder. This decision significantly impacted modern institutions that depend on the public domain and was the first in a line of rulings that severely restricted the rights of individual citizens in the internet age.

Before that, though, two significant pieces of copyright legislation helped solidify the United States’ position on approaching foreign works. These legislative reforms were necessary, given the unstable history of foreign copyright protection in the United States, but had a tendency to overcorrect for past failures in a way that greatly affected individual citizens and societal institutions. The first major piece of legislation was the Copyright Act of 1976, which was created out of necessity to address the development of television, film, and radio. Foreign works were directly addressed, as the Act states its desire to “protect foreign authors against laws and decrees purporting to divest them of their rights under the United States copyright statute.” (5) A more significant development in U.S. copyright happened less than two decades later with the 1994 Uruguay Round Agreements Act, or URAA. The URAA was part of the much broader legislative package that established the World Trade Organization, and it proved consequential due to a provision that allowed foreign works previously in the public domain to fall back under copyright protection. (6) Foreign works were able to regain copyright status if the copyright owners previously failed to renew their agreement, if the medium in which the work was produced wasn’t previously protected (sound recordings made before 1972 often failed to qualify), or if the country that produced the work previously lacked copyright relations with the United States. (7) The impact of the URAA was immediate and profound, as millions of foreign works that had become staples of the public domain suddenly went under copyright status. (8) These works included films, poems, novels, musical scores, paintings, and more, and devastated individuals and institutions in all fields that depended on the public domain for material. One man out of the millions affected was Lawrence Golan, and his disgruntlement in the years after the ruling culminated in one of the most impactful Supreme Court rulings regarding copyright law in American history.

Lawrence Golan is a professor at the University of Denver’s School of Music and has served as conductor of the University’s Lamont Symphony Orchestra since 2001. (9) The URAA significantly impacted Golan’s ability to source music for the orchestra, as he noted that “You used to be able to buy Prokofiev, Shostakovich, Stravinsky. All of a sudden, on one day, you couldn’t anymore.” (10) The crux of the issue is financial, as relatively small orchestras like Golan’s are only allocated a certain amount of funds to license music each year. When a work is in the public domain, the orchestra can obtain enough sheet music for the symphony for around one hundred dollars, but when these works fall back under copyright protection, their cost per performance balloons to about six hundred dollars. (11) This cost is exorbitantly high, as Golan’s orchestra is only budgeted four thousand dollars to license music for the entire year, meaning approximately eighty percent of what it performs has to come from the public domain. The situation is much worse for others, too, as some orchestras get only five hundred dollars to spend a year, and a Conductors Guild survey found that seventy percent of members could no longer afford to perform pieces that had once been in the public domain. (12)

Due to this, Golan took his case to court, and after years of differing rulings in the Colorado court system, Golan’s writ of certiorari was granted, and the case was heard by the Supreme Court in 2011. The Roberts Court considered two primary questions: Does the Progress Clause of the Constitution prevent Congress from removing works from the public domain, and does section 514 of the URAA violate the First Amendment? (13) The Constitution's Progress Clause regarding intellectual property states that the ultimate goal of the copyright system is “to promote the progress of science and useful arts.” (14) Golan believed the removal of works from the public domain to be the antithesis of this, but the Supreme Court disagreed and ruled in 2012 by a 6-2 decision that Congress had the authority to remove works from the public domain and that section 514 of the URAA was not unconstitutional. The public domain had previously enjoyed an ironclad reputation where any works within it were guaranteed to stay there permanently, but the Supreme Court abolished this tenet of the public domain overnight, creating an unstable database and confusing the millions of Americans who depended on it. In her majority opinion, Justice Ruth Bader Ginsburg dismissed these legitimate critiques and relied heavily on precedent in a stare decisis ruling that opined the importance of the 2003 ruling, Eldred v. Ashcroft. Ginsburg wrote that “In Eldred, this Court rejected a nearly identical argument” and further noted that “Congress has several times adjusted copyright law to protect new categories of works as well as works previously in the public domain.” (15) In his dissenting opinion, Justice Breyer vehemently disagreed with his colleagues and based his decision on the fact that the Constitution’s Copyright Clause was primarily designed by the Founders with the goal of advocating for scientific progress. (16) Breyer wrote that current copyright law “bestows monetary rewards only on owners of old works” and “does not encourage anyone to produce a single new work.” (17) Breyer then pointed out that the Golan ruling prohibited the dissemination of millions of foreign works that should “assume their rightful places in computer-accessible databases, spreading knowledge throughout the world.” (18) Breyer and others who disagreed with the court’s ruling also felt that the decision egregiously violated their First Amendment right to freedom of speech. When a true financial barrier prevents individuals from performing or distributing works that they previously had access to, there is a credible argument to be made that their right to free speech has been suppressed.

Breyer’s concerns were expanded upon and shared by many, as a diverse group of composers, musicians, librarians, archivists, public interest groups, and more were directly impacted by the court’s ruling. (19) The Electronic Frontier Foundation, a non-profit digital rights group, even went as far as to file an amicus brief pleading that “an unstable public domain creates dangerous uncertainty about copyright policy, posing a significant threat to libraries, digital repositories, and others that promote access to knowledge.” (20) More than a decade after the court’s ruling, the state of the public domain and the extent to which individuals enjoy copyright freedom are as fragile as ever. The Internet Archive, the world’s largest digital library, was devastated by a series of lawsuits in the early 2020s after introducing a revolutionary free lending system largely for books in the public domain. Copyright holders disagreed with the legality of this unique e-book licensing system, and after years of litigation, the Internet Archive was forced to pay an undisclosed sum and remove nearly 500,000 books from its library. (21) This decision continues to impact the organization to this day, as fears about paying exorbitant fines have greatly hindered their progress on the digitization of works. (22)

The copyright freedoms of individual citizens have also been reduced in the years after Golan due to another controversial Supreme Court ruling in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. This 2023 decision ruled that an Andy Warhol print of the musician Prince, based on a copyrighted photograph by Lynn Goldsmith, was not transformative enough to fall under the doctrine of fair use. (23) This decision is rooted in the precedent established by the Golan ruling that copyright exists to protect pre-existing works, not to encourage the development of new ones. In her dissenting opinion, Justice Kagan correctly noted that the works were “fundamentally different” and that all art involves “borrowing from or otherwise making use of the work of others.” (24)

While copyright law in the United States has undoubtedly improved since the era when foreign books were counterfeited indiscriminately, over the years, the extent to which individual copyright holders and corporations are protected has increased to the point where the individual rights of citizens are threatened. Orchestras are unable to perform works that were staples of their repertoire for years, artists are unable to properly benefit from the protection supposedly offered by the fair use doctrine, and digital libraries and archives everywhere are threatened by increasing legislative pressure. Since the Golan decision in 2012, the range of material that can fall under copyright protection has also expanded, as now original short-form video content created as an Instagram Reel or YouTube Short can enjoy protection. (25) As we move further into the digital era, it is essential that we reform copyright law to better protect the Constitutional freedoms of individual citizens and restore the public domain to its previous state of near immutability.

Endnotes

1. B. Zorina Khan, “Does Copyright Piracy Pay? The Effects of U.S. International Copyright Laws on the Market for Books, 1790-1920,” National Bureau of Economic Research, Working Paper Series (January 2004): 8-9. https://www.nber.org/system/files/working_papers/w10271/w10271.pdf.

2. Donald Marquand Dozer, “The Tariff on Books,” Journal of American History 36, no. 1 (June 1949).

3. B. Zorina Khan, “Does Copyright Piracy Pay? The Effects of U.S. International Copyright Laws on the Market for Books, 1790-1920,” National Bureau of Economic Research, Working Paper Series (January 2004): 9. https://www.nber.org/system/files/working_papers/w10271/w10271.pdf

4. U.S. Legal Forms Team, “Chace Act: A Comprehensive Overview of Its Legal Definition and Impact,” https://legal-resources.uslegalforms.com/c/chace-act.

5. Wikisource, “Copyright Law Revision (House Report No. 94-1476).” https://en.wikisource.org/wiki/Copyright_Law_Revision_%28House_Report_No._94-1476%29.

6. Federal Register, “Copyright Restoration of Works in Accordance with the Uruguay Round Agreements Act,” February 4, 2019. https://www.federalregister.gov/documents/2019/02/04/2019-00874/copyright-restoration-of-works-in-accordance-with-the-uruguay-round-agreements-act

7. Federal Register, “Copyright Restoration of Works in Accordance with the Uruguay Round Agreements Act.”

8. Greenberg and Liberman Law Blog, “U.S. Supreme Court Takes ‘39 Steps’ Back From the Public Domain,” June 19, 2014. https://web.archive.org/web/20140624030355/http://aplegal.com/2014/06/19/u-s-supreme-court-takes-39-steps-back-from-the-public-domain/.

9. Marc Perry, “Supreme Court Takes up Scholars’ Rights,” The Chronicle of Higher Education, May 29, 2011. https://www.chronicle.com/article/supreme-court-takes-up-scholars-rights/.

10. Marc Perry, “Supreme Court Takes up Scholars’ Rights.”

11. Marc Perry, “Supreme Court Takes up Scholars’ Rights.”

12. Marc Perry, “Supreme Court Takes up Scholars’ Rights.”

13. Oyez, “Golan v. Holder.” https://www.oyez.org/cases/2011/10-545

14. Constitution Annotated, “Article I Section 8 Enumerated Powers.” https://constitution.congress.gov/browse/article-1/section-8/clause-8/.

15. Justia, “Golan v. Holder, 565 U.S. 302 (2012).” https://supreme.justia.com/cases/federal/us/565/302/#tab-opinion-1963686.

16. Justia, “Golan v. Holder.”

17. Justia, “Golan v. Holder.”

18. Justia, “Golan v. Holder.”

19. Corynne McSherry, “Supreme Court Gets It Wrong in Golan v. Holder, Public Domain Mourns” Electronic Frontier Foundation, January 23, 2012. https://www.eff.org/deeplinks/2012/01/supreme-court-gets-it-wrong-golan-v-holder-public-domain-mourns?language=th.

20. Corynne McSherry, “Supreme Court Gets It Wrong in Golan v. Holder, Public Domain Mourns.”

21. Ashley Belanger, “Internet Archive’s legal fights are over, but its founder mourns what was lost,” Ars Technica, November 3, 2025. https://arstechnica.com/tech-policy/2025/11/the-internet-archive-survived-major-copyright-losses-whats-next/.

22. Ashley Belanger, “Internet Archive’s legal fights are over, but its founder mourns what was lost.”

23. Oyez, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.” https://www.oyez.org/cases/2022/21-869.

24. Justia, “Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, 598 U.S. (2023).” https://supreme.justia.com/cases/federal/us/598/21-869/#tab-opinion-4742177.

25. Wesley Omondi Okoth, “Is There a Copyright on YouTube Shorts?” Trademarkia Blog, March 24, 2025. https://www.trademarkia.com/news/copyrights/are-youtube-shorts-copyrightable