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Jimi Hendrix Is Cited During Supreme Court Arguments

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Whipped Into A Frenzy
Whipped Into A Frenzy

The times they are a-changing…

Jimi Hendrix made an appearance at the Supreme Court on Wednesday in an argument over whether Congress acted constitutionally in 1994 by restoring copyright protection to foreign works that had once been in the public domain. The affected works included films by Alfred Hitchcock and Federico Fellini, books by C. S. Lewis and Virginia Woolf, symphonies by Prokofiev and Stravinsky and paintings by Picasso.

The suit challenging the law was brought by orchestra conductors, teachers and film archivists who say they had relied for years on the free availability of such works.

Chief Justice John G. Roberts Jr. posed the general question in the case this way: “One day I can perform Shostakovich. Congress does something. The next day I can’t. Doesn’t that present a serious First Amendment problem?”

Then the chief justice, a pioneer in the citation of popular music in legal discourse, asked the question slightly differently, invoking Hendrix, the great rock guitarist, to test the limits of the government’s position. “What about Jimi Hendrix, right? He has a distinctive rendition of the national anthem, and assuming the national anthem is suddenly entitled to copyright protection that it wasn’t before, he can’t do that, right?”

The solicitor general, Donald B. Verrilli Jr., making his debut in the post, said there were good reasons to allow Congress to restore copyright protection to works that had entered the public domain, even at some cost to free expression by performers and others. Responding to the chief justice’s hypothetical question, Mr. Verrilli said that “maybe Jimi Hendrix could claim fair use.”

(click here to continue reading Jimi Hendrix Is Cited During Supreme Court Arguments – NYTimes.com.)

fair use since the Jimi Hendrix version alters the anthem a bit, but unfortunately, even fair use is a tenuous legal foundation these days. Just ask Scott Baio, or Shepard Fairey

Near the end of his argument in the case, Golan v. Holder, No. 10-545, Mr. Falzone returned to the chief justice’s reference to performers like Hendrix.

“There can’t be any doubt, as I think Chief Justice Roberts got at, that the performance has a huge amount of original expression bound up in it,” Mr. Falzone said. “It’s the reason it’s different to see King Lear at the Royal Shakespeare Company; it’s the reason it’s different when John Coltrane plays a jazz standard.”

Written by Seth Anderson

October 6th, 2011 at 8:19 am

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