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Chief Justice Roberts invokes Hendrix at Woodstock

Justice Ruth Bader Ginsburg invoked Aaron Copland. The chief justice countered with Jimi Hendrix.
/ Source: The Associated Press

Justice Ruth Bader Ginsburg invoked Aaron Copland. The chief justice countered with Jimi Hendrix.

The high court's generational divide was on display Wednesday as the justices heard arguments about whether Congress acted properly in extending U.S. copyright protection to millions of works by foreign artists and authors that had been in the public domain — meaning they could be performed and used in other ways without paying royalties.

Community orchestras, academics and others who rely on uncopyrighted works are challenging a 1994 law that made copyrights available to the foreign works. Google, with its You Tube and digital art and library projects that depend on works in the public domain, is backing the challenge. Composers, authors, songwriters, photographers and others who depend on copyright protection are urging the court to uphold the law.

Copland and Hendrix were Americans, but justices used them to illustrate differing views of the case.

For the 78-year-old Ginsburg, the case appeared easy. She talked about two Russian-born composers, Dmitri Shostakovich and Igor Stravinsky, whose works were never copyrighted in the United States.

A copyright allows artists, or the copyright holder such as a deceased artist's estate, a fixed period of time in which they can permit or deny others the right to use or reproduce their work or demand a royalty payment for doing so.

"What's wrong with giving them the same time Aaron Copland got?" Ginsburg asked the lawyer representing the law's challengers.

Chief Justice John Roberts was 14 years old when Hendrix performed his "distinctive rendition" of the "Star Spangled Banner" at the Woodstock music festival. Roberts, now 56, voiced concern that Hendrix's freedom of expression could have been compromised under the government's argument.

"Assuming the national anthem is suddenly entitled to copyright protection that it wasn't before, he can't do that, right?" Roberts said.

The court ruled in 2003 that Congress may extend the life of a copyright, but it has never said whether published works lacking a copyright could later be protected. The case argued Wednesday concerns a 1994 law that was intended to bring the United States in line with an international agreement.