“It is so ordered” – A Look Back at Justice Ginsburg’s Copyright Legacy

Justice Ginsburg's Memoriam

Last week, the world lost a legal giant, Justice Ruth Bader Ginsburg, after 27 years of service on the highest court in the land. Justice Ginsburg, the second woman ever appointed to the Supreme Court, is widely celebrated as a champion of women’s rights, and a dedicated advocate for human and civil rights across the board. And within the copyright law and policy arena, Justice Ginsburg is also known for having authored numerous noteworthy copyright law opinions, concurrences, and dissents.

Community for Creative Non-violence v. James Earl Reid (DC Cir. 1988)

In 1988, prior to her tenure with the United States Supreme Court, Justice Ginsburg was a judge in the U.S. Court of Appeals for the DC Circuit and she authored an important opinion in Community for Creative Non-violence v. James Earl Reid (1988)a case that analyzed the Copyright Act’s “work made for hire” doctrine.

A non-profit devoted to the welfare of homeless people (CCNV) sued the sculptor who created a display that would dramatize the plight of the homeless as a modern Nativity scene. After repairing the sculpture following its display, the sculptor refused to return it to CCNV for a lengthy tour, which he asserted would damage the sculpture. CCNV sued the sculptor, claiming to be the sole copyright owner of the work.

The various circuits used different tests to determine whether a creative work was a work made for hire, a distinction that affects who is considered the copyright owner. The Second and Seventh Circuits used tests of “actual control” and “sufficient supervision and direction,” along with a determination of whether a contractor was an employee, to determine authorship.

On the other hand, the Fifth Circuit used a “literal interpretation” test that used agency law to determine the scope of the working relationship, designating it as either an employment relationship or independent contractor relationship. The Fifth Circuit also looked to at whose “instance and expense” the work was being created and who had the right to direct and supervise the manner in which the work was performed.

The DC Circuit, in an opinion authored by then-Judge Ginsburg, held that the literal interpretation best suits the Copyright Act of 1976 and found that the sculpture does not fall under the work made for hire category: the work did not fall within one of the enumerated work for hire categories and there was no written instrument signed by the parties describing the work as a work made for hire. But, the Court found that both parties played a role in the creation of the sculpture – the sculptor created the figures, while CCNV created the base and steam grate the figures would rest on.

While the Court did not fully decide the issue of who the copyright owners were, as further investigation was needed to determine if any other parties could qualify as authors for CCNV’s contribution to the sculpture, this case clarified an approach to the work made for hire doctrine that courts use to this day. The following year, the Supreme Court affirmed the DC Circuit’s holding, and five years later, Ginsburg was appointed as an Associate Justice in that very court.

SCOTUS Opinions

Eldred v. Ashcroft (2003)

Here, Justice Ginsburg authored the Supreme Court’s majority opinion that the Copyright Term Extension Act’s (CTEA’s) extension of copyright duration by 20 years did not violate either the Copyright Clause’s “limited Times” prescription or the First Amendment’s free speech guarantee. This case was brought by a collection of individuals and businesses who created products or services based on public domain works.

First, Petitioners argued that the 20-year extension violated the “limited Times” prescription, essentially asserting that a time period, once set, becomes inalterable. But, the Court found that the word “limited” is not delineated in such a way: a 20-year extension is still a limited period of time, and applying this extension to both existing and future works allows for all copyright owners to be governed evenly under the same set of rules.

Second, Petitioners argued that Congress did not rationally exercise its power under the Constitution’s Copyright Clause by passing the CTEA. The Court asserted that it defers substantially to Congress in reviewing actions under the rational basis test. The Court found that the CTEA is a rational enactment and not subject to Court scrutiny. Overall, the Court found that the CTEA did not violate any aspect of the Copyright Clause.

Next, the Court addressed Petitioners’ assertion that the CTEA is a regulation of speech that violates the First Amendment. Justice Ginsburg wrote how the Copyright Clause and First Amendment were adopted close in time, with similar principles in mind. In addition, the CTEA, and copyright law in general, incorporates speech-protective safeguards by ensuring only expression, not ideas, are protected, and that ideas, theory, and fact, even if present in a copyrighted work, are still available for public use. Even further, the fair use defense allows individuals to use others’ expression in certain circumstances.

Petitioners likened the CTEA to communications law’s must-carry rules. But, unlike with the must-carry rules considered in Turner Broadcasting System, Inc. v. FCC, copyright law does not require anyone to share another’s’ speech against their will.

Overall, the Court asserted its deference to Congress and emphasized its belief that the CTEA did not violate the Copyright Clause or First Amendment, allowing for the extension of copyright terms and compliance with international treaties.

Golan v. Holder (2012)

In Golan v. Holder, Justice Ginsburg delivered the Court’s opinion supporting new copyright protection for foreign authors under the Berne Convention and Uruguay Round Agreements Act (URAA), including for authors whose works were in the public domain. Prior to the URAA, foreign works were not protected by the Copyright Act and were considered to be within the public domain in the United States.

In adopting the URAA, the United States gave national treatment to foreign authors, protecting their works under the same conditions American authors’ works were protected. For some authors, this meant their works would come out of the public domain to enjoy what remained of their copyright protection term.

Petitioners, a group of orchestra conductors, musicians, publishers, and others who used public domain works in their business, argued that the URAA violated the Copyright Clause and First Amendment. Primarily, Petitioners argued that works that fell into public domain cannot be brought out of it, and that bringing these works out of the public domain removes “vested rights” Petitioners have in these works.

Speaking for the Court, Justice Ginsburg found that the URAA did not violated either the Copyright Clause or the First Amendment. The URAA did not create perpetual copyrights and, historically, Congress had given copyright protection to public domain works several times. In addition, Justice Ginsburg stated that the Court “will not second-guess Congress’ authority or political choice in embracing the Berne Convention and providing equitable treatment to “once disfavored foreign authors.”

Next, Justice Ginsburg held that the creation of new works is not the sole means through which Congress can “promote the Progress of Science” – the Progress of Science can also be promoted through the dissemination of works.

Finally, the Court addressed Petitioners’ First Amendment complaint that the URAA affected their freedom of expression by preventing them from using these now-protected works. Justice Ginsburg explained how the URAA does not affect the idea/expression dichotomy codified in the Copyright Act, nor did it affect the fair use defense. Effectively, Petitioners could still pay for the right to use these now-protected works or act under fair use – referring back to the petitioners in Eldred, the Court explained that Petitioners did not have any “vested rights” in works that had entered the public domain.

Through Golan v. Holder, the Court, led by Justice Ginsburg, held that Congress did have the power to enact the URAA. The Court also solidified the idea that works in the public domain can be brought out to receive copyright protection, complying with the Copyright Act’s “limited Times” requirement, and that the idea/expression dichotomy and fair use doctrine allowed sufficient First Amendment protection in current copyright law.

Petrella v. Metro-Goldwyn-Mayer, Inc. (2014)

Justice Ginsburg delivered the Court’s opinion regarding the application of the doctrine of laches to civil copyright claims that are still brought within the three-year period of time prescribed by the federal statute of limitations.

Here, the daughter of an author who wrote two screenplays and a book with boxer Jake LaMotta sued Metro-Goldwyn-Mayer (MGM) for creating the film “Raging Bull,” asserting that MGM infringed on Petrella’s rights in the screenplay and its derivative works. The federal district court held that Petrella’s legal claim was barred under the doctrine of laches since she took a long delay in filing the claim, which adversely affected MGM’s ability to fight it.

Justice Ginsburg, writing for the Court, explained the relationship between legislation and the doctrine of laches – how, generally, the doctrine of laches applies to equitable claims for which Congress has not prescribed a time limitation. Before the enactment of a statute of limitations for federal copyright suits in 1957, courts used analogous state statutes of limitations and sometimes invoked laches to abridge the state law requirement – this was how courts filled that legislative hole. But, a statute of limitations for copyright law now exists. Further, the copyright statute of limitations itself considers delay by only allowing a successful plaintiff to recover for retrospective relief from, at most, three years in the past. For these reasons, Ginsburg explained, MGM could not invoke the doctrine of laches.

Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC (2019)

While an author gains exclusive rights in his work upon its creation, the Copyright Act requires that “registration of the copyright claim has been made” before a copyright owner can pursue an infringement claim in court. But when exactly has registration been made?

In this case, Fourth Estate, a news organization that produces online news articles, sued Wall-Street.com, a former licensee, when Wall-Street.com failed to remove all Fourth Estate content from its website after cancelling its licensing account.

This case turned on whether Fourth Estate, which did not have finalized copyright registrations for its work, could pursue a civil action against Wall-Street.com under the Copyright Act, which required that registration be made prior to filing a lawsuit. The Court was tasked with deciding whether a “registration has been made” under section 411(a) of the Copyright Act when the copyright owner submits a completed application, fee, and deposit (known as the “application approach”, or when the Copyright Office acts to either grant or refuse the registration (known as the “registration approach”).

Justice Ginsburg, speaking for a unanimous court, explained that the statute requires the Copyright Office to act on a copyright registration application before a copyright claimant may commence an infringement suit. Justice Ginsburg pointed to several provisions of the Copyright Act, explaining that if the application approach was correct, these sections would be repetitive. As well, the preregistration option for works that are especially susceptible to prepublication infringement would not need to exist if a copyright owner could pursue a federal action as soon as he applied for copyright registration.

This decision greatly impacted copyright law as it means that copyright owners cannot immediately pursue legal action when they uncover infringement; instead, if they do not have a copyright registration for their work, they must wait until the Copyright Office has made a registration decision to file civil suit, which can take months. Justice Ginsburg was sympathetic toward this problem, stating that, “the statutory scheme has not worked as Congress likely envisioned. Registration processing times have increased from one or two weeks in 1956 to many months today” but recognized that “[u]nfortunate as the current administrative lag may be, that factor does not allow [the Court] to revise ¤411(a)’s congressionally composed text.”


Justice Ginsburg’s imprint on copyright law didn’t end with her majority opinions – while her concurring opinions are not precedential, they remain insightful and influential.

MGM v. Grokster (2016)

MGM v. Grokster affirmed the secondary liability doctrine as it applies to copyright infringement. In this case, MGM sued Grokster, accusing it of inducing consumers to illegally download and share copyrighted works. Justice Souter delivered the opinion of the Court, which described the evolution of the digital distribution of music and explained why the Court believed imposing indirect liability on Grokster was a strong argument.

Overall, the Court explained that Grokster contributorily infringed on copyrighted music by (1) intentionally inducing or encouraging direct infringement and (2) providing a widely shared service that is used to commit infringement without substantial lawful use. While copyright law did not include liability for another’s infringement, well-established common law principles allowed for the application of these doctrines of secondary liability.

Justice Ginsburg concurred in the Court’s decision, but wanted to speak more on how the Court of Appeals misapplied the Court’s holding in Sony Corp. Of America v. Universal City Studios, Inc. Here, there was no finding of any fair use and very little evidence of non-infringing uses beyond anecdotal evidence. In fact, it seemed that the Court of Appeals relied heavily on the defendants’ own declarations when determining whether the products were capable of substantial non-infringing uses. Overall, Justice Ginsburg reiterated that there was insufficient evidence to grant summary judgment on whether the products were capable of significant non-infringing uses now or over time.

Star Athletica v. Varsity (2017)

The Supreme Court granted certiorari in this case to resolve circuit splits in how to properly analyze designs which may or may not separately exist from useful articles, primarily through a separability analysis. Here, Varsity Brands, a cheerleading uniform manufacturer, sued Star Athletica for infringement of five of their designs Star Athletica argued that the designs were not copyrightable as they were utilitarian, and copyright law does not protect utilitarian designs.

The Court held that “an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.” Using this separability analysis, the Court determined that the designs on Varsity’s cheerleading uniforms is separable from the uniforms and eligible for copyright protection.

Justice Ginsburg concurred in the Court’s judgment but not in its reasoning. Justice Ginsburg would not have used the separability test as she did not view these designs as designs of useful articles at all – in her opinion, the designs were standalone copyrightable works that were then reproduced on useful articles.


Justice Ginsburg was well known for her dissents and their influential impact. The same rings true for her insightful copyright opinions.

Kirtsaeng v. John Wiley & Sons, Inc. (2013)

In deciding a case regarding the geographic limits of the first sale doctrine, the Court decided whether a foreign version of a textbook can be brought to the US and sold without violating the Copyright Act and the copyright owner’s exclusive rights. The Court found that there are no geographic restrictions on the “first sale” doctrine, allowing individuals to resell their copies of copyrighted works regardless of where they’re manufactured.

Justice Ginsburg dissented from the majority opinion, arguing that the decision was incompatible with Congress’ legislative intent of “protect[ing] copyright owners against the unauthorized importation of low-priced, foreign-made copies of their copyrighted works,” thereby increasing the likelihood of the “international exhaustion” of copyrights, which the United States had been resisting.

Justice Ginsburg described the majority’s concerns as a “parade of horribles” that was “largely imaginary” and dissented from the Court’s focus on international exhaustion. Justice Ginsburg explained that international price discrimination was a financial incentive for authors to address different economic conditions around the world; this incentive is undermined if arbitrageurs can import copies of works from low-price regions to high-price regions.

Further, Justice Ginsburg argued that Congress’ legislative intent in enacting the Copyright Act was to provide copyright owners with recourse against the importation of foreign-made copies of their copyrighted works. Further, the first sale doctrine applied only to copies made in the United States, not copies made abroad. Justice Ginsburg described her view as consistent with those of the United States in international trade negotiations, as opposed to the majority opinion, which was dissonant with those negotiations, as well as dissonant with the Copyright Act’s text and history.

Georgia v. Public.Resource.Org, Inc. (2019)

Justice Ginsburg authored another insightful dissent in Georgia v. Public.Resource.Org, where the Court analyzed whether copyright protection extends to annotations in Georgia’s official annotated code, which were written by a private company.

The Court held that the annotations did not receive copyright protection because, even though a private company wrote the annotations, it did so in a way where the government is considered the author; under the government edicts doctrine of copyright law, “officials empowered to speak with the force of law cannot be the authors of-and therefore cannot copyright-the works they create in the course of their official duties.”

Justice Ginsburg dissented from the majority opinion, agreeing that state laws are not copyrightable but disagreeing in that “not all that legislators do […] is ineligible for copyright protection.” While the government edicts doctrine shields works created by judges and legislators in the course of their judicial and legislative duties, Justice Ginsburg did not believe that the annotations were created in a legislative capacity.

According to Justice Ginsburg, there are key differences between the roles of judge and legislator. Judges interpret and apply the law while legislators make the laws without construing them afterwards. Justice Ginsburg did not categorize the annotations as part of the Georgia Legislature’s lawmaking process; rather, they were simply “explanatory, referential, or commentarial material.” As such, these annotations were used by the legislature in their “auxiliary, not legislative character” and are thereby copyrightable.

With the passing of Justice Ginsburg, the world has lost an icon who exemplified integrity, justice and equality, and whose personal and professional legacy-including her legacy of discerning opinions on copyright law-will live on indefinitely.

Photo credit: Sean Pavone/iStock

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