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Francis Scott Key* v. James Marshall Hendrix?

In today’s argument in Golan v. Holder, many of the Justices appeared sympathetic to Congress’s power to create a U.S. copyright in a work that had previously been in the private domain within the United States, at least in cases where, for various reasons, the work had never previously had a U.S. copyright.  They appeared less sanguine, however, about the implications of the government’s argument with respect to a different set of works that (for the most part) are not directly at issue in Golan—namely, works that had previously been copyrighted in the U.S. and had thereafter entered the public domain and been subject to widespread public copying or performance.   The Chief Justice, in particular, thought that such a case would at the very least raise substantial First Amendment concerns, wholly apart from whether the government might prevail under the applicable First Amendment test.  After all, he wondered, isn’t it at least somewhat troubling for Congress to prohibit members of the public from expressing something tomorrow that they were free to express yesterday?

The Chief Justice, famously fond of invoking (once-)popular music citations in his questions and opinions, proffered a hypothetical designed to acutely dramatize his First Amendment concerns:

What about Jimi Hendrix . . . ?  He has a distinctive rendition of the national anthem [NOTE: I assume the Chief was referring to this iconic version], and . . . assuming the national anthem is suddenly entitled to copyright protection that it wasn’t before, he can’t do that, right?

SOLICITOR GENERAL VERRILLI: What copyright does, by definition, is provide exclusive rights in expression; and so if the First Amendment is triggered whenever copyright provides exclusive rights in expression that it didn’t used to provide, then heightened scrutiny will apply any time Congress exercises its copyright power, and what the Court said in Eldred.

CHIEF JUSTICE ROBERTS: So [Hendrix] is just out of luck?

One response to this is, of course, to lament that Jimi Hendrix has, alas, been out of luck — and unable to perform the Star Spangled Banner — for quite some time.

But Solicitor General Verrilli had yet another idea about why the First Amendment concerns are overstated–one that might warm the hearts of copyright skeptics the world over:

“Maybe Jimi Hendrix could claim fair use in that situation.”

The Solicitor General undoubtedly had in mind that Hendrix’s SSB–unlike the vast majority of covers–might be deemed a “transformative” work, one that “adds something new, with a further purpose or different character, altering the first [work] with new expression, meaning or message.”  Campbell v. Acuff-Rose Music, Inc., 510 U.S. at 579.  In particular, Hendrix’s performance is widely viewed as both an homage to the Star-Spangled Banner and also “a critical statement that seeks,” in no small measure, “to rebut and destroy the perspective, judgments, and mythology,” Suntrust Bank v. Houghton-Mifflin Co., 268 F.3d at 1270 (11th Cir. 2001), of the National Anthem and what it represented back in 1969.

I will leave it to my colleague, Rebecca Tushnet (who will be summarizing the Golan argument on this blog) to discuss the prospects of a fair-use defense in the hypothetical case where Congress provides a copyright to the descendents of Francis Scott Key and they proceed to sue Hendrix’s descendants — or Marvin Gaye’s, or Jose Feliciano — for copyright infringement.

[*UPDATE:  As it happens–and I should have known this, having attended Francis Scott Key Elementary School–Key merely wrote the lyrics to the Star-Spangled Banner, not the music; and Hendrix’s version was, of course, an instrumental.  The music itself is a tune by the name of “To Anacreon in Heaven,” which was the official song of an 18th-century London “gentlemen’s club” of amateur musicians, the Anacreontic Society.  The music is most commonly attributed to John Stafford Smith, a Gloucester teenager and member of the Society, in the mid-1760s, and was first published in London by The Vocal Magazine in 1778.  I suspect it never enjoyed a United States copyright–which makes it an even more apt hypothetical in the context of Golan.]

Recommended Citation: Marty Lederman, Francis Scott Key* v. James Marshall Hendrix?, SCOTUSblog (Oct. 5, 2011, 8:51 PM),