In the US, copyright has been retroactively extended multiple times. Steamboat Willie for example has repeatedly been snatched away from the public domain in the last minute.

It was first due to enter the public domain in 1955. Then in 1986. Then in 2003. Last extension (that I know of) was until 2023 which is the year I write this.

But at the same time, ex post facto laws are expressly forbidden by the United States Constitution.

So how is it possible that ex post facto copyright extensions have been passed multiple times?

As I see it the victim here is the general public. Is it simply that they haven't sued for rights? Or did they?

If I sign a contract that I will hand over my poem to you in two weeks, can I just change my mind and say "no, now it's three months" whenever I feel like it? AFAICT that's exactly what's been happening here.

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    The US prohibition on ex post facto applies to criminal law. In other words, a law that penalizes you today for something you did last week but was legal at the time is ex post facto. There is no ex post facto here and further, you don't have a contract to receive the copyrighted item that was broken.
    – jwh20
    Commented Jan 11, 2023 at 18:53
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    I agree I don't formally have a contract to receive the works, but if the government says "Here, you can have this next year!" and then go "No, now it's in 20 years!" I will feel cheated... Commented Jan 17, 2023 at 15:07

1 Answer 1


See Golan v. Holder (2012). This related to an extension of copyright protection for works that had already fallen into the public domain.

  • an extension of copyright is still a "limited time" allowed by the Constitution
  • historical practice, including by the first congress, is evidence that giving copyright protection to previously unprotected works is okay
  • there is a rational basis that such extensions promote the progress of science
  • fair use continues to be available as a defence/exception

Further, no one is liable for copies of works made while a work was in the public domain. This was not imposing retroactive, ex post facto punishment. But see Justice Stevens's dissent in Eldred v. Ashcroft (2002) for such an argument—not in the punishment sense, but analogizing to a taking (the majority held that the Sonny Bono Copyright Term Extension Act was constitutional).

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    To be clear, Eldred v. Ashcroft is the U.S. Supreme Court that addressed the question in the OP by holding that the Sonny Bono Copyright Term Extension Act was constitutional. en.wikipedia.org/wiki/Copyright_Term_Extension_Act
    – ohwilleke
    Commented Jan 11, 2023 at 19:53
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    "there is a rational basis that such extensions promote the progress of science" - but, curiously, no word on what that alleged basis is.
    – Vikki
    Commented Mar 20, 2023 at 2:09
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    @Vikki: A law which allowed someone to re-establish a copyright that had been invalidated for technical reasons (e.g. publication of copies of a work where the copyright notice was illegible) could allow people to produce works with less paranoia about losing their copyrights, and that would seem like a clear rational basis. I'd curious what rational basis would justify statutes which extend copyrights on existing works on a blanket basis, however.
    – supercat
    Commented Oct 17, 2023 at 20:28

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