What Do Jimi Hendrix and Copyright Law Have in Common?

The late Jimi Hendrix took center stage at the Supreme Court last year when the country’s high court heard arguments regarding whether Congress acted constitutionally when it restored copyright protection to foreign works that had once been in the public domain.

The 1994 law was part of an effort to implement the Berne Convention, a treaty that gives U.S. works reciprocal protection overseas. In the words of Justice Ruth Bader Ginsburg, Congress essentially decided that “Shostakovich should be treated just like Copland,” referring to the 20th century Russian composer and his American contemporary.

As detailed by the New York Times, the lawsuit before the Supreme Court was filed by orchestra conductors, teachers, and film archivists who argue that they relied on the free availability of such works. They have challenged the law both for exceeding Congress’s power to grant copyrights and for infringing their own First Amendment free speech rights.

A work with a copyright removes that work from the public domain, prompting Chief Justice John Roberts to ask: “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 government’s response: “Maybe Jimi Hendrix could claim fair use.”

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