Thursday, October 13, 2011

Is 100,000 Year Old Art Copyrightable?

The October 11th edition of Science magazine features an article concerning the discovery of an early-human "art factory" in the Blombos Cave area of South Africa. The archaeological find may provide important insight into the early development of human reasoning, including the development of creative tasks. This find also raises an interesting question in copyright. That is, if the landowner of a parcel of land on which an ancient piece of art is found outside of the U.S. becomes the lawful owner of the treasure trove, does this also mean that the landowner can claim a U.S. copyright interest in the previously unpublished art once the art is published in the U.S.?

This past week on October 5, the Supreme Court heard argument in the copyright case of Golan v. Holder. The issue in Golan involves the constitutional ability of Congress to "restore" copyright protection to a work in the public domain under Section 104A of the U.S. Copyright Act. Reports of the oral argument in Golan suggest that Justice Ginsburg may be leaning to upholding the right of Congress to allow copyright protection for a work in the public domain under the view that a foreign work may never have had protection in the U.S. in the first instance (Scotusblog contains a full set of links to the various elements of this case). If an aged, foreign work has never been protected in the U.S., then one line of thinking suggests that there should not be anything wrong with granting full protection once the aged work comes into the U.S., even if the work becomes subject to U.S. copyright law years after its creation, assuming that the work is protectable in its home country.

Which takes us back to the ancient art factory in the Blombos Cave of South Africa. Wondering out loud what Justice Ginsburg's reaction would be to a copyright claim on a piece of art that newly arrives in the U.S. from the Blombos Cave? If the owner of the Blombos Cave art seeks to protect the 100,000 year old work under U.S. copyright law, would such an event not cause Justice Ginsburg, and everyone else, a bit of heartburn, assuming that South Africa would extend copyright protection to the previously unpublished work? Just thinking out loud.

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