Friday, October 07, 2011

Poor Jimi.

I generally read on at least an occasional basis, concentrating on death penalty, juvenile justice and sometimes environmental cases from the Ninth and Eleventh Circuits. (I have at least three death penalty cases -- even aside from the Troy Davis and Charles Willingham cases -- which I really need to write posts on, stretching back through last term.) I rarely read intellectual property cases, or at least not in any detail.  Today, though, while scrolling through the LiveJournal SCOTUSblog feed, I happened upon their coverage of oral argument in Golan v. Holder, a case over whether Congress can extend copyright protections to works previously in the public domain.

The post included the following:

The Chief Justice, famously fond of invoking (once-)popular music citations in his questions and opinions, proffered a hypothetical designed to acutely dramatize his First Amendment concerns:
What about Jimi Hendrix . . . ?  He has a distinctive rendition of the national anthem [NOTE: I assume the Chief was referring to this iconic version], and . . . assuming the national anthem is suddenly entitled to copyright protection that it wasn’t before, he can’t do that, right?
SOLICITOR GENERAL VERRILLI: What copyright does, by definition, is provide exclusive rights in expression; and so if the First Amendment is triggered whenever copyright provides exclusive rights in expression that it didn’t used to provide, then heightened scrutiny will apply any time Congress exercises its copyright power, and what the Court said in Eldred.
CHIEF JUSTICE ROBERTS: So [Hendrix] is just out of luck?
One response to this is, of course, to lament that Jimi Hendrix has, alas, been out of luck — and unable to perform the Star Spangled Banner — for quite some time.

I read this sitting in Starbucks and began laughing, loudly.  At the startled looks from the other patrons, I managed to stifle my giggles, albeit with tears leaking from my eyes with the effort.

I guess you just had to be there.

[Edited to add:  yes, I agree I need to add the citation, especially given that an author was listed:  Marty Lederman, Francis Scott Key* v. James Marshall Hendrix?, SCOTUSblog (Oct. 5, 2011, 8:51 PM),]

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