No. 10-545

In The

LAWRENCE GOLAN, ET AI~.,Petitioners,

V.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.,Respondents.

On Petition for Writ of Certiorarito the United States Court of Appeals

for the Tenth Circuit

BRIEF OF THE CONDUCTORS GUILDAS AMICUS CURIAE SUPPORTING

PETITIONERS

STEVEN A. HIRSCHCou~rsel of Record

ANDREW F. DAWSONKEKER ~ VAN NEST, LLP

710 Sansome StreetSan Francisco, CA 94111

(415) 391-5400SHirsch@kvn.com

Counsel for Amicus CuriaeThe Conductors Guild

November 24, 2010

Blank Page

TABLE OF CONTENTSPage

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................3

Section 514’s amendment to theCopyright Act retroactively grantscopyright protection to workspreviously in the public domain .......................3

II. This new grant of copy~’ightprotection has a direct and di’amaticeffect on the ability of musicians andorchestras to perform these works ..................4

III. A survey of Guild membersdemonstrates the practicalconsequences of Section 514 ............................ 6

CONCLUSION ..........................................................10

TABLE OF AUTHORITIESPage(s)

Cases

Dam Things from Denmark v.Russ Berrie & Co.,290 F.3d 548 (3d Cir. 2002) .....................................9

Statutes

17 U.S.C. § 104A(h)(6)(C) ...........................................3

Uruguay Round Agreements Act,Act of Dec. 8, 1994 Pub. L. No.103-465,108 Stat. 4809 ..........................................................2

Constitutional Provisions

First Amendment ........................................................3

INTEREST OF AMICUS CURIAE

The Conductors Guild is the only music serviceorganization devoted exclusively to the advancementof the art of conducting and to serving the artisticand professional needs of conductors. It has a mem-bership of over 1,600 members representing all fiftyUnited States and more than thirty other countries.~Many of its members serve as music directors andconductors for smaller orchestras that rely on theavailability of classical works in the public domainfor their performances.

The Guild is concerned with the art and the craftof conducting, with practical problems encounteredwithin the profession, with repertoire, and with themultiple roles that Music Directors must fulfill inorchestras, choruses, opera and ballet companies,wind ensembles, bands, musical theater, and otherinstrumental and vocal ensembles. Its mission ex-tends to any such ensemble, whether professional oramateur, functioning independently or within thecontext of colleges, universities, or secondaryschools. The Guild’s overall goal is to enhance theprofessionalism of conductors by serving as a clear-

~ The parties have consented to the filing of this brief.

Counsel of record for all parties received notice at least 10days prior to the due (late of the amicus euriae’s intention tofile this brief.

No counsel for a party authored this brief in whole or inpart, and no counsel or party made a monetary contributionintended to fund the preparation or submission of this brief.No person other than amieus curiae, its members, or its counselmade a monetary contribution to its preparation or submission.

2inghouse for information regarding the art and prac-tice of conducting, and to support the artistic growthof orchestras, bands, choruses, and other conductedensembles. The Guild also has the broader role ofexpressing the views and opinions of the conductingprofession to the music community.

SUMMARY OF ARGUMENT

This case presents issues of enormous impor-tance warranti~ig this Court’s review. Section 514,~-

alone among amendments to the Copyright Act, hasthe effect of making previously available works of arteffectively unavailable. Permitting Section 514 toremove from the public domain many landmarkworks of twentieth-century music imposes a tremen-dous financial burden on local and regional musicorganizations. Perhaps more important, it also riskspreventing a new generation of performers and mu-sic lovers from experiencing a transformative periodin musical innovation--works by Prokofiev, Stravin-sky, Shostakovich, and others.

While certain privileged musical organizations inlarger cities can afford to continue performing suchworks, their musicians and patrons are a tiny frac-tion of musicians and music lovers in this country.Most Americans are exposed to the arts not by thesefew wealthy entities, but in their schools and localcommunities. These smaller musical entities facelimited and inflexible budgets, and removing impor-tant works from the public domain will force them to

~- "Section 514" refers to the corresponding section of theUruguay Round Agreements Act ("URAA"). Act of Dec. 8, 1994,Pub. L. No. 103-465, 108 Stat. 4809.

forego performing these works at all. Section 514therefore will harm not only the Guild’s members,but also the millions of music students and audiencemembers throughout the country.

Preventing the performance of works that havelong been in the public domain cannot be squaredwith the First Amendment. This Court shouldtherefore grant review.

ARGUMENT

Section 514’s amendment to the Copy-right Act retroactively grants copy-right protection to works previouslyin the public domain.

In 1994, Congress enacted the Uruguay RoundAgreements Act ("URAA"). Section 514 of that Act"restores" copyrights in foreign works that were for-merly in the public domain in the United States forone of three specified reasons: failure to comply withformalities, lack of subject-matter protection, or lackof national eligibility. See 17 U.S.C. § 104A(h)(6)(C).In sum, public-domain works that previously hadbeen available to all have now been granted copy-right protection

Congress thus removed from the public domain avast number of important works by foreign compos-ers and granted them for the first time the protec-tion of United States copyright law. These works in-clude numerous landmarks of twentieth-centurymusic that were composed by the most importantcomposers of their day. Works by composers such asSergei Prokofiev, Igor Stravinsky, and Dmitri

4Shostakovich are central to the repertoire of any or-chestral group interested in twentieth-century clas-sical music. They are also works that any musiclover must experience to fully appreciate the evolu-tion of classical music over the past hunch’ed years.

II. This new grant of copyright protec-tion has a direct and dramatic effecton the ability of musicians and or-chestras to perform these works.

A brief overview of how copyright protection in-fluences the way in which orchestras perform willaid in appreciating the dramatic effect of removingthese seminal works from the public domain.

If an orchestra wishes to perform a work in thepublic domain, it typically has two choices. Either itcan purchase the necessary sheet music for its collec-tion, or it can rent copies of the sheet music. For awork subject to copyright protection, however, thereis typically only one option--renting the sheet music.Moreover, even if an orchestra purchased sheet mu-sic before implementation of Section 514, a copy-right-protected work can be performed only uponpayment of a separate performance fee or purchaseof a blanket license.

Rental fees for copyright-protected music are anenormous financial burden on small orchestras. De-spite the fact that sheet music rentals are chargedon a per-performance basis, the fees are normallybetween three and four times the purchase price forsheet music for a work in the public domain. And ofcourse, unlike an ensemble that owns the sheet mu-sic for a work in the public domain, an ensemble

5wishing to perform a copy~ight-protected work mustpay rental fees every time the work is performed.Fees thus continue to accumulate season after sea-son. Even when a group is able to pay the rentalfees, the recurring performance fees often preventrepeated productions. And when orchestral parts ofa copyright-protected work are rented, the parts maynot be duplicated for any reason, save for "emer-gency" replacement in the event that certain neces-sary parts are missing, damaged, or destroyed. Suchemergency copies, however, must be destroyedpromptly after the performance takes place.

Rental fees for a full orchestration of a copyright-protected work can be $800 or more for a single per-formance. Rental costs are even higher for an or-chestral group that requires a longer period of re-hearsals, such as a student orchestra or an amateurgroup. Further, the rental cost and the playing timeof a composition are often directly related, withlonger pieces commanding a higher fee. Similarly, apiece with more instrumental parts, such asShostakovich’s Tenth Symphony, will be more ex-pensive to rent than a piece for only a few instru-ments, such as Stravinsky’s Octet. Finally, thepopularity of a piece also can lead to a higher-than-average rental fee.

The "restoration" of copyright protection to pre-viously available works both demands a new finan-cial investment from orchestral groups and under-mines their previous investments. These new higherrental fees inevitably will result in orchestral groupschoosing not to perform canonical works that havebeen performed frequently for decades. Moreover,an orchestra’s earlier investment in its own sheet

6music is undermined by this restoration. If the workin question is newly protected, an orchestra is notentitled to perform it simply because it previouslypurchased a copy of the score. Instead, performanceof such a work requires payment of a performancefee or purchase of a blanket license.

These new hurdles to performance will limit thebreadth of education for music students and will de-prive audiences of valuable artistic, intellectual, andemotional experiences. The consequences will beparticularly dire for student groups. Such groupsnot only have limited budgets but also require morerehearsal time to prepare for a performance. Thisentails a longer rental period and even higher fees.Without the resources to pay those fees, the inevita-ble result is that a new generation of musicians willreceive an incomplete musical education.

III. A survey of Guild members demon-strates the practical consequences ofSection 514.

In preparation for this brief, the ConductorsGuild conducted a survey of its membership to learnwhether and how conductors and music directorshave been forced to alter their programming due tothe restoration of copyright under Section 514.Members were asked whether they were forced toalter their programming because of the costs associ-ated with performing a copyrighted work, whetherthey had been forced to make programming changesspecifically because of Section 514, whether theyowned the sheet music for any of the newly protectedworks, and several other questions.

7The survey results reveal the impact of Section

514. Eighty-three percent of respondents indicatedthat they have a general practice of conserving re-sources by limiting their performance and recordingof copyrighted works. As to the specific impact ofSection 514, seventy percent of respondents indi-cated that they are no longer able to perform workspreviously in the public domain--works performedregularly before the passage of Section 514--becausethose works are now under copyright protection.Only thirty-seven percent of respondents own thesheet music for any of these works. Therefore, evenif the money exists to pay only the performance fee,very few groups have their own copies of the music.And, of course, it is no longer possible to purchasenew copies.

The surveyed members also provided specific ex-amples of how these legal changes have impactedtheir work. One conductor for a chamber ensemblelists a number of works by Igor Stravinsky that hisgroup has performed in the past, but no longer willperform because they are now protected. He furtherexplains that the fees to perform such a work are atleast $300, and that, due to budgetary constraints,his ensemble is unable to afford such fees. The prob-lem is particularly acute for chamber ensembles, be-cause those groups have fewer members and theworks typically are shorter. In his words, "there isso much great chamber music out there to be per-formed, but who is going to spend $300 to rent a 12minute work for 8 players?"

A conductor for a university orchestra explainsthat the high rental fees for music by Shostakovich,Prokofiev, and Stravinsky make it impossible for his

groups to program such works, although his stu-dents would benefit from those performances. As heexplains, "this has severely curtailed the possibilitiesfor the education of our music students .... " An-other conductor for a university orchestra explainsthat his ensemble no longer can perform Prokofiev’sPeter and the Wolf or Stravinsky’s Soldier’s Tale,among other titles. The loss of Soldier’s Tale is par-ticularly troublesome, as it is considered an essentialpiece for conductors who are training to become pro-fessionals. He further notes that because his en-semble is comprised of students, they require an ex-tended rental for a long rehearsal cycle. Such fees,he reports, can exceed $1,200.

Another respondent fears that Peter and theWolf, which he and others consider to be an essentialwork, is in danger of becoming a secondary piece as aresult of these new restrictions. Another explainsthat these are "outstanding works by some of themost artistically and historically hnportant compos-ers of the late-19th and early-20t~l centuries. Study-ing and performing these works is a vital part of thetraining of young musicians .... "

Another respondent eloquently explains the bur-den these restrictions impose on smaller orchestras:

IS]mailer professional or part time professionalorchestras and even many of the medium sizedcities with full seasons and long and cherishedreputations are hurting. Against all aestheticreason they are forced [to] find ways to shrinktheir seasons and reduce the size of their fulltime performing personnel. Introducing a fur-

9ther burden on live music making ensembles is aform of slow suicide.

The survey also reflects the fact that it is by nomeans easy to determine the copyright status of agiven work, particularly when that work has been inthe public domain for decades. Cf. Dam Things fromDenmark v. Russ Berrie & Co., Inc., 290 F.3d 548,556-60 (3d Cir. 2002) (engaging in a complex and ex-tended legal and factual analysis to determinewhether copyright in a doll was "restored" by Section514). The survey responses express uncertainty asto which works have now been granted copyrightprotection and which have not. This uncertainty,combined with the members’ unwillingness to risksubjecting themselves to penalties, will result in mu-sic not being performed when there is nothing morethan speculation that it is no longer in the publicdomain. Put another way, Section 514 will have achilling effect on the exercise of the members’ free-speech rights.

The members’ responses not only bemoan Sec-tion 514’s impact on their own expressive freedom,but reflect a concern for the impact on their audi-ences’ exposure to essential works. The directoremeritus of a regional orchestra explains that "Rus-sian symphonic works are very important to an or-chestra’s repertoire as well [as] to an educated audi-ence. They are absolutely part of an orchestra’s ba-sic library." Another explains that these works "areextremely important to the classical music world andthe entire world in general. Having them under lockand key robs the world of more performances of theseminal works of the great Russian composers."

t0These survey results illustrate the practical re-

alities at issue in this case. The scope of copyrightprotection is a fundamental issue for members of theConductors Guild and the audiences they serve.Section 514 is uniquely important because it, aloneamong amendments to the copyright laws, has theeffect of making previously available works of art ef-fectively unavailable to all but the most prominentorchestras and their fortunate audiences. For dec-ades, members of the Guild have relied on the factthat these works were available in the public do-main, and their removal has upset those decades ofreliance.

CONCLUSION

For the foregoing reasons, the petition for a writof certiorari should be granted.

Respectfully submitted,

STEVEN A. HIRSCHCoul~sel of Record

ANDREW F. DAWSONKEKER ~ VAN NEST, LLP

710 Sansome StreetSan Francisco, CA 94111

(415) 391-5400SHirsch@kvn.com

Counsel for Amicus CuriaeThe Conductors Guild

November 24, 2010