                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SOCIETE CIVILE SUCCESSION              
RICHARD GUINO, a french trust,
                 Plaintiff-Appellee,
                v.
JEAN-EMMANUEL RENOIR, an                     No. 07-15582
individual,
              Defendant-Appellant,            D.C. No.
                                           CV-03-01310-MHM
               and
BESEDER INC., doing business as
Rima Fine Art; DROR DAREL,
husband; TRACY L. PENWELL, wife,
                       Defendants.
                                       

SOCIETE CIVILE SUCCESSION              
RICHARD GUINO, a french trust,
                 Plaintiff-Appellee,
                v.
JEAN-EMMANUEL RENOIR, an                     No. 07-15583
individual,
                         Defendant,           D.C. No.
                                           CV-03-01310-MHM
               and
BESEDER INC., doing business as
Rima Fine Art; DROR DAREL,
husband; TRACY L. PENWELL, wife,
            Defendants-Appellants.
                                       


                            16111
16112        SOCIETE CIVILE SUCCESSION v. RENOIR



SOCIETE CIVILE SUCCESSION              
RICHARD GUINO, a french trust,
                Plaintiff-Appellant,
RICHARD W. MORRIS; MORRIS LAW
FIRM, PLLC,                                  No. 07-17209
                         Appellants,
                 v.                           D.C. No.
                                           CV-03-01310-MHM
JEAN-EMMANUEL RENOIR, an                       OPINION
individual; BESEDER INC., doing
business as Rima Fine Art; DROR
DAREL, husband; TRACY L.
PENWELL, wife,
             Defendants-Appellees.
                                       
        Appeal from the United States District Court
                 for the District of Arizona
        Mary H. Murguia, District Judge, Presiding

                  Argued and Submitted
        October 20, 2008—San Francisco, California

                  Filed December 9, 2008

    Before: Mary M. Schroeder, Dorothy W. Nelson and
            Stephen Reinhardt, Circuit Judges.

              Opinion by Judge D. W. Nelson
16116         SOCIETE CIVILE SUCCESSION v. RENOIR
                         COUNSEL

David Steiner and Michael Hambly, Steiner & Associates,
PLC, Los Angeles, California, for defendant-appellant-
plaintiff-cross-appellee Jean-Emmanuel Renoir.

Joshua Kaufman, Venable LLP, Washington, DC, for
defendants-appellants-plaintiffs-cross-appellees Beseder Inc.,
Dror Darel, Tracy Penwell, and CSTPGU, LLC.

Richard Morris, Surprise, Arizona; Richard Stevens, Phoenix,
Arizona, for plaintiff-appellee-defendant-cross-appellant
Societe Civile Succession Richard Guino.


                         OPINION

D.W. NELSON, Circuit Judge:

   Beseder, Inc., Dror Darel, Tracy Penwell, and CSTPGU
LLC (collectively “Beseder”) and Jean-Emmanuel Renoir
(“Renoir”) appeal the district court’s grant of summary judg-
ment in favor of Societe Civile (“Societe”) on Societe’s copy-
right infringement claim. Societe and Renoir appeal other
issues unrelated to the finding of copyright infringement
which are discussed in an accompanying memorandum dispo-
sition.

     FACTUAL AND PROCEDURAL BACKGROUND

   French artist Pierre-Auguste Renoir and one of his assis-
tants, Richard Guino, created the eleven sculptures at issue
between 1913 and 1917 (“the sculptures”). The sculptures
were first published in France no later than 1917 under Pierre-
Auguste Renoir’s name. There was no pre-1978 publication
containing an American-style copyright notice.
              SOCIETE CIVILE SUCCESSION v. RENOIR         16117
   In 1973, Guino obtained a determination by the French
Supreme Court that he was a co-author to certain works of
sculpture by Pierre-Auguste Renoir, including the sculptures
at issue, and he was awarded a one-half interest in the Renoir-
Guino sculptures.

  In 1974, the sculptures were exhibited as Renoir-Guino
works for sale at the Hotel Bristol in Paris.

   In 1982, the Guino family and certain members of the
Renoir family (not including appellant, Pierre-Auguste
Renoir’s great grandson, Renoir) entered into an agreement,
providing that the Guino family would thereafter control pro-
duction and reproduction of the sculptures using plaster casts
from the originals. Under this agreement, the Guino family
received exclusive rights to create subsequent editions. A trust
(hereinafter “Societe”) was formed to implement the Guino
family’s rights under the agreement.

   In 1984, Societe obtained U.S. Copyright Office registra-
tions for the sculptures, and in the registrations represented
that the sculptures were either first published in England in
1983 or unpublished.

  In 2003, Renoir sold some of the sculptures, or molds or
castings thereof, to Beseder, who advertised and sold the
sculptures and castings at its gallery in Scottsdale, Arizona.

   On July 10, 2003, Societe filed its complaint against
Beseder and Renoir (Renoir’s mother, Hernandez, was added
later as a defendant), alleging federal copyright infringement
under 17 U.S.C. § 501 et seq. and false designation and false
description of sponsorship in violation of the Lanham Act.
Societe alleged that Renoir and Beseder (collectively, the
“Defendants”) engaged in sales, marketing, and reproduction
activities in 2003 that infringed upon Societe’s copyrights in
the sculptures. Although Defendants disagree with some of
Societe’s characterizations, they generally admit that “if
16118         SOCIETE CIVILE SUCCESSION v. RENOIR
Societe had legitimate, existing copyright interests under
American law in the sculptures, then some of Renoir’s and the
Beseder Defendants’ actions would constitute infringing
acts.”

   In late 2003, both Beseder and Renoir answered the com-
plaint, alleging that the sculptures were in the public domain.

   In late 2004, Societe moved for partial summary judgment
on liability of its copyright claims, but leaving open for trial
the question of damages. Societe contended that if the sculp-
tures had fallen into the public domain, they were nonetheless
subject to restoration under 17 U.S.C. § 104A. Defendants
opposed the motion and asserted cross-motions for partial
summary judgment on Societe’s copyright claims.

   On January 30, 2006, the district court (after an initial Sep-
tember 2005 order, motions for reconsideration by Defen-
dants, and an order granting reconsideration) entered partial
summary judgment for Societe on its claim for copyright
infringement and denied the Defendants’ cross-motions for
summary judgment. Societe Civile Succession Richard Guino
v. Beseder, Inc., 414 F. Supp. 2d 944, 952 (D. Ariz. 2006).
The district court, relying on Twin Books v. Walt Disney Co.,
83 F.3d 1162 (9th Cir. 1996), held that the sculptures were not
in the public domain because the publications were in a for-
eign country and without notice of the U.S. copyright.
Societe, 414 F. Supp. 2d at 951. The district court, therefore,
concluded that 17 U.S.C. § 303(a) of the 1976 Copyright Act
applied because the sculptures were “created before January
1, 1978, but not theretofore in the public domain or copyright-
ed.” Id. at 952. Under § 303(a), the sculptures were protected
for seventy years after the death of the last surviving author.
Id. Because Guino passed away in 1973, the sculptures were
entitled to copyright protection until 2043. Id. The district
court, however, was critical of both the reasoning of Twin
Books and the “unreasonable result” it requires when applied
             SOCIETE CIVILE SUCCESSION v. RENOIR        16119
to a pre-1978 work that was published in a foreign country
but not republished with a notice of copyright. Id. at 949-51.

  On May 24, 2006, Judge Mary Murguia became the presid-
ing judge in this case.

  Defendants petitioned this court to allow an interlocutory
appeal pursuant to 28 U.S.C. § 1292(b). This court denied the
petition on May 26, 2006, without considering the merits.

   The issues of copyright infringement damages, among
other claims, were tried to a jury in October 2006. On
November 2, 2006, a jury awarded $125,000 in damages to
Societe on its copyright infringement claims against Defen-
dants for ten of the eleven sculptures (the district court
directed a verdict in favor of Defendants concerning one
sculpture, Venus Victrix).

                 STANDARD OF REVIEW

   The court reviews “a district court’s grant of summary
judgment de novo.” Winterrowd v. Am. Gen. Annuity Ins. Co.,
321 F.3d 933, 937 (9th Cir. 2003). Questions of law are
reviewed de novo. Beeman v. TDI Managed Care Servs., 449
F.3d 1035, 1038 (9th Cir. 2006). “Whether a particular work
is subject to copyright protection is a mixed question of fact
and law subject to de novo review.” Cavalier v. Random
House, Inc., 297 F.3d 815, 822 (9th Cir. 2002).

                       DISCUSSION

I.   Copyright Protection of the Sculptures

  Whether the sculptures are protected by copyright turns on
analyses of both the 1909 and the 1976 Copyright Acts.
16120        SOCIETE CIVILE SUCCESSION v. RENOIR
  a. Copyright Protection for works published/created prior
  to 1978

    1.   1909 Act

   “Under the 1909 Act, an unpublished work was protected
by state common law copyright from the moment of its cre-
ation until it was published or until it received protection
under the federal copyright scheme.” La Cienega Music Co.
v. ZZ Top, 53 F.3d 950, 952 (9th Cir. 1995), superceded by
statute on other grounds, 17 U.S.C. § 303(b). When a work
was published, it lost common law protection. See id. at 953.
The owner could obtain federal protection for the published
work by complying with the 1909 Act’s requirements; other-
wise, the work entered the public domain. ABKCO Music,
Inc. v. LaVere, 217 F.3d 684, 688 (9th Cir. 2000). Under § 9
of the 1909 Act, “[a]ny person . . . may secure copyright for
his work by publication thereof with the notice of copyright
required by this title.”

   The 1909 Act provided that an author was entitled to
twenty-eight years of protection from the date he secured a
copyright on a work, and that the copyright could, before the
first twenty-eight-year period expired, be renewed for another
twenty-eight-year term. See Twin Books, 84 F.3d at 1165.

    2.   The 1976 Act

   The Copyright Act of 1976 changed the basis of copyright
protection from publication of a work to creation of a work.
See Eldred v. Ashcroft, 537 U.S. 186, 195 (2003). That
change applies to works “created on or after January 1, 1978.”
17 U.S.C. § 302. In making that change, Congress also pro-
vided copyright protection terms for works created before
1978. Currently, copyright law protects four types of works:
(1) works created on or after January 1, 1978, id. § 302; (2)
works copyrighted as of January 1, 1978, id. § 304; (3) works
“created before January 1, 1978, but not theretofore in the
              SOCIETE CIVILE SUCCESSION v. RENOIR        16121
public domain or copyrighted,” id. § 303(a); and (4) foreign
works not in the public domain in their country but in the pub-
lic domain, for enumerated reasons, in the United States, id.
§ 104A.

   Section 302 does not apply because the sculptures were
created between 1913 and 1917. Neither does § 304, because
the works were not copyrighted until 1984. Whether the
sculptures are protected by §§ 303(a) or 104A turns on
whether the sculptures passed into the public domain in the
United States.

    b.   Pre-1978 works and the public domain: Twin Books

   The copyright statute does not define the phrase “public
domain.” 17 U.S.C. § 101. Under the 1909 Copyright Act, a
work enters the public domain when it is published in the
United States without copyright protection. ABKCO Music,
217 F.3d at 688 (“When a work was published, it lost com-
mon law protection. . . . The owner could obtain federal pro-
tection for the published work by complying with the 1909
Act’s requirements; otherwise, the work entered the public
domain.”).

   Publication in a foreign country affects whether the work
is published without copyright protection, and thereby affects
whether the work is in the public domain in the U.S. In Twin
Books, this court held “that publication without a copyright
notice in a foreign country [does] not put the work in the pub-
lic domain in the United States.” 83 F.3d at 1167. In Twin
Books, a book, Bambi, A Life in the Woods, was published in
Germany in 1923 without copyright notice and then again
published in 1926 in Germany with copyright notice. Copy-
right was registered in the U.S. in 1927 and renewed in 1954.
Id. at 1164. Under the 1909 Act, copyright must be renewed
within twenty-eight years of the commencement of copyright
protection. Id. at 1165. Therefore, the 1954 renewal was
timely if the copyright protection began with the 1926 publi-
16122         SOCIETE CIVILE SUCCESSION v. RENOIR
cation, but not if protection began with the 1923 publication.
See id. at 1168.

   [1] Although the Twin Books court found that the public
domain question was “heatedly debated,” id. at 1166, the
court held that “publication without a copyright notice in a
foreign country did not put the work in the public domain in
the United States.” Id. at 1167. In support of its conclusion,
the court cited Supreme Court decisions holding “that United
States copyright law should not be given extraterritorial
effect.” Id. at 1166. The court also adopted the holding in
Heim v. Universal Pictures Co., 154 F.2d 480 (2d Cir. 1946),
reading Heim to hold that “publication without a copyright
notice in a foreign country did not put the work in the public
domain in the United States.” Twin Books, 83 F.3d at 1167.

   [2] The court then addressed whether the 1923 publication
without notice in Germany commenced the term of U.S.
copyright protection. Id. The court looked to the language of
the 1909 Act to reject “the proposition that publication abroad
without notice of copyright secures protection under the 1909
Copyright Act.” Id. at 1168. As a result, between 1923 and
1926, the book was neither in the public domain, nor pro-
tected by copyright. Id. at 1167. The court found that the
copyright term commenced in 1926, when the book was
republished in Germany with notice of copyright, and the
1954 renewal was timely. Id. at 1168.

    c.   Application of Twin Books to this case: were the
         sculptures in the public domain or protected by copy-
         right?

   [3] Applying Twin Books, the sculptures in this case were
not in the public domain. The sculptures were published in
France as Renoir works in 1917. The sculptures were pub-
lished as Renoir-Guino works in 1974, in an exhibition held
in Paris. Neither party asserts that the sculptures were pub-
lished with notice of U.S. copyright either in 1917 or 1974.
             SOCIETE CIVILE SUCCESSION v. RENOIR        16123
Because those publications were in a foreign country and
without notice of United States copyright, they “did not put
the work in the public domain in the United States.” Twin
Books, 83 F.3d at 1167.

   [4] Furthermore, because the sculptures were never pub-
lished with copyright notice, under Twin Books, the sculptures
were not protected by copyright under the 1909 Act. See id.
at 1168 (rejecting “the proposition that publication abroad
without notice of copyright secures protection under the 1909
Copyright Act”). For the years between 1917 and 1978, there-
fore, the sculptures were neither protected by copyright nor
injected into the public domain. See id. at 1167.

   [5] An analysis under the 1976 Act is required to determine
Societe’s rights in the sculptures between 1978 and the time
of its claim in 2003. The Copyright Restoration Act, 17
U.S.C. § 104A, permits restoration of copyright protection for
foreign works that are not in the public domain in their home
country but are in the public domain in the United States
because of noncompliance with formalities imposed at any
time by United States copyright law, including lack of proper
notice. The sculptures would not be entitled to protection
under this section because, pursuant to Twin Books, the sculp-
tures have not passed into the public domain as required by
§ 104A(h)(6)(c) as they were published abroad without copy-
right notice. See Twin Books, 83 F.3d at 1167.

   [6] Section 303(a) of the 1976 Act applies because the
sculptures were “created before January 1, 1978, but not
theretofore in the public domain or copyrighted.” 17 U.S.C.
§ 303(a). The sculptures were created between 1913 and
1917. Pursuant to Twin Books, the sculptures have not passed
into the public domain, 83 F.3d at 1167, and were not pro-
tected by copyright after foreign publication without notice,
see id. at 1168. The sculptures were not copyrighted until
1984. Section 303(a) provides protection for the term pro-
vided by § 302, which is a term seventy years after the death
16124           SOCIETE CIVILE SUCCESSION v. RENOIR
of the last surviving author. Because Guino passed away in
1973, the sculptures are entitled to protection until 2043,
which the district court properly held.1

      d.   Can Twin Books be distinguished on a principled
           basis?

  Defendants offer three reasons for their contention that
Twin Books is distinguishable and therefore should not apply.
None is persuasive.

   [7] First, Defendants argue that Twin Books should not
apply here because there was no foreign publication with
notice within a few years or while the 1909 Act was in effect.
This distinction does not warrant a limited application of Twin
Books. Nothing in Twin Books suggests that the republication
of the work with notice was essential to its holding that for-
eign publication without notice did not trigger copyright pro-
tection. Indeed, the Twin Books court describes the very
situation that this case raises: the status of the work after for-
eign publication without notice. “During [the years before
publication with notice], anyone could have sold the Bambi
book in the United States or made some derivative movie of
the Bambi book.” Twin Books, 83 F.3d at 1167. Although it
is unclear how this status differs from the public domain, the
Twin Books court clearly contemplated the status of works
like the sculptures, which were between publication without
notice and publication with notice. As such, Twin Books
  1
    Although not pressed on appeal, it is worth noting that § 303(a) also
provides that “if the work is published on or before December 31, 2002,
the term of copyright shall not expire before December 31, 2047.” Under
the 1976 Act, the sculptures may have been published “before December
31, 2002,” because they were distributed for public sale in 1917 and 1974.
See 17 U.S.C. § 101 (“Publication” is defined as “the distribution of cop-
ies . . . of a work to the public by sale or other transfer of ownership”).
Although perhaps a minor distinction, the district court conducted no
inquiry into whether the sculptures were published for purposes of the
1976 Act.
              SOCIETE CIVILE SUCCESSION v. RENOIR         16125
squarely controls the decision here and is binding precedent.
Cf. Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001)
(stating that “a later three-judge panel considering a case that
is controlled by the rule announced in an earlier panel’s opin-
ion has no choice but to apply the earlier-adopted rule”).

  Second, Defendants argue that Twin Books should not
apply because of a possible conflict between certain Twin
Books language and the copyright protection accorded to the
sculptures. In Twin Books, the court stated:

    the clear language of section 10 of the 1909 Act pro-
    vides that an author ‘may secure copyright for his
    work by publication thereof with the notice of copy-
    right required by this title.’ There is absolutely no
    way to interpret that language to mean that an author
    may secure copyright protection for his work by
    publishing it without any notice of copyright.

83 F.3d at 1168. From this, Defendants conclude that Twin
Books “does not stand for the proposition that works, which
have never been published with a copyright notice, are pro-
tected by U.S. copyright law.”

   [8] The language at issue, however, is not inconsistent with
the application of Twin Books in this case. The district court
did not grant copyright protection to a work that had only
been published abroad without copyright notice. Instead, the
district court’s holding was entirely consistent with Twin
Books because it held that from 1917 to 1978 (before the 1976
Act granted protection), the sculptures were neither protected
by copyright nor placed in the public domain. Twin Books, 83
F.3d at 1167 (noting that for years after publication without
notice and before publication with notice, “anyone could have
sold the [work] in the United States or made some derivative
movie of the [work]”). The district court held only that copy-
right protection began in 1978, when § 303(a) of the 1976 Act
granted a copyright term of seventy years after the death of
16126         SOCIETE CIVILE SUCCESSION v. RENOIR
the last author (in this case Guino in 1973). Societe, 414 F.
Supp. 2d at 952.

   Third, Defendants argue that Twin Books should not be
applied to this case because the sculptures were published
before 1923, and the Bambi book was published in 1923.
Twin Books, 83 F.3d at 1164. Thus, their argument goes, this
court should hold that pre-1923 publications abroad without
notice triggered copyright protection, while constraining the
Twin Books holding that publication abroad without notice did
not trigger copyright protection to only post-1923 publica-
tions.

   [9] The year 1923 is significant because the 1976 Act,
which became effective on January 1, 1978, and the 1998
Copyright Extension Act, operate together to create a bright
line rule for which works are now in the public domain:
works published before January 1, 1923, are generally in the
public domain. Section 304(b) of the 1976 Act at its passage
provided: “The duration of any copyright, the renewal term of
which is subsisting at any time between December 31, 1976,
and December 31, 1977, inclusive . . . is extended to endure
for a term of seventy-five years from the date copyright was
originally secured.” However, a series of interim extensions
passed before the 1976 Act extended a renewal term that
would have expired between September 19, 1962, and
December 31, 1976, to December 31, 1976. See Pub. L. 87-
668, 76 Stat. 555 (1962); Pub. L. 89-142, 79 Stat. 581 (1965);
Pub. L. 90-141, 81 Stat. 464 (1967); Pub. L. 90-416, 82 Stat.
397 (1968); Pub. L. 91-147, 83 Stat. 360 (1969); Pub. L. 91-
555, 84 Stat. 1441 (1970); Pub. L. 92-170, 85 Stat. 490
(1971); Pub. L. 92-566, 86 Stat. 1181 (1972); Pub. L. 93-573,
88 Stat. 1873 (1974); 3-9 Melville B. Nimmer & David Nim-
mer, Nimmer on Copyright § 9.11[A], at pp. 9-148 to 9-149.
Consequently, the 1976 Act grants works subject to the above
interim extensions a nineteen-year extension of the renewal
term from the time the twenty-eight year term would have
expired, for a total of seventy-five years of protection. See 3-
               SOCIETE CIVILE SUCCESSION v. RENOIR              16127
9 Nimmer on Copyright § 9.11[A], at p. 9-149. And although
the 1998 Sonny Bono Copyright Term Extension Act
extended the copyright in all subsisting works for another
twenty years, 17 U.S.C. § 304(b), it did not rescue any work
from the public domain or recapture protection for that work,
see id.; 3-9 Nimmer on Copyright § 9.11[B][1], at pp. 9-152
to 9-153. Thus, a work published before January 1, 1923,
received, at most, protection for seventy-five years,2 such that
after December 31, 1997, any work published before January
1, 1923, was in the public domain. See United States Copy-
right Office, How to Investigate the Copyright Status of a
Work, Circular 22, at 8 (2006) (“[T]he U.S. copyright in any
work published or copyrighted prior to January 1, 1923, has
expired by operation of law, and the work has permanently
fallen into the public domain in the United States.”); United
States Copyright Office, Extension of Copyright Terms, Cir-
cular 15t, at 3 (2004) (same); 3-9A Nimmer on Copyright,
§ 9A.04[A][1][b][iv], at p. 9A-26.3 (“Because protection for
works first published anywhere in the world earlier than 1923
has since expired, those works are not subject to current U.S.
protection . . . .”).

   Therefore, the argument goes, by the time of Defendants’
alleged infringing activity in 2003, the sculptures had already
entered the public domain in 1992, seventy-five years after
the 1917 publication, and there could be no copyright
infringement.

  [10] This difference in the dates of publication, however, is
not enough to distinguish Twin Books on a principled basis.
The Twin Books court did not raise the significance of the
1923 date. Nor did it cite the 1976 Act or its effect on works
  2
   Protection for works published before September 19, 1906, would have
expired before Congress’ interim extensions began in 1962, and thus
receive, at maximum, two twenty-eight-year terms of protection. Pub. L.
87-668, 76 Stat. 555 (1962); 3-9 Nimmer on Copyright § 9.11[A], at pp.
9-149 to 9-150.
16128         SOCIETE CIVILE SUCCESSION v. RENOIR
originally governed by the 1909 Act. The significance of the
year 1923 in copyright is such that if the Twin Books court
wanted to draw a distinction, it would have. The absence of
such citations indicates that the Twin Books court did not
intend to draw a line between works published before and
after January 1, 1923. Whether the Twin Books court should
have drawn a distinction is a matter more appropriately
addressed en banc.

   [11] Furthermore, if this court were to agree with Defen-
dants and distinguish Twin Books from this case, the court
would be creating questionable law just to contain another
arguably questionable law. By following Defendants’ argu-
ment, this court would create a rule that treats works pub-
lished abroad without notice before 1923 differently from
those published after 1923, by finding that the former’s copy-
right term began with publication, while the latter’s, per Twin
Books, did not. See 83 F.3d at 1168. As explained above, it
is true that, by operation of the 1976 and 1998 Acts, the copy-
right terms of a work published before 1923 and one pub-
lished after 1923 may be different. But there is no basis to
treat a work published abroad without notice in 1923 differ-
ently from one published in 1922 for purposes of when copy-
right protection begins.

   Although the reasoning of Twin Books can be, and has
been, criticized, it is still binding in this circuit. We are thus
bound to follow it. See Hart, 266 F.3d at 1170 (“[A] later
three-judge panel considering a case that is controlled by the
rule announced in an earlier panel’s opinion has no choice but
to apply the earlier-adopted rule.”).

  II.   The Constitutionality of Twin Books

  Beseder argues, in the alternative, that application of Twin
Books to this case violates the Constitution and Eldred v. Ash-
croft, 537 U.S. 186 (2003), by creating a limitless term of
U.S. Copyright for works published abroad. The Copyright
              SOCIETE CIVILE SUCCESSION v. RENOIR          16129
and Patent Clause of the Constitution states: “Congress shall
have Power . . . [t]o promote the Progress of Science . . . by
securing [to Authors] for limited Times . . . the exclusive
Right to their . . . Writings.” U.S. CONST. art. I, § 8, cl. 8. In
Eldred, the Supreme Court upheld the constitutionality of the
Copyright Term Extension Act because the extended term
was finite and definable. 537 U.S. at 199-200 (a “limited
Tim[e]” means “confine[d] with certain bounds,” “re-
strain[ed],” or “circumscribe[d]”).

   [12] Beseder argues, citing Nimmer on Copyright, that
under the Twin Books rationale, a newly discovered ancient
Greek work, “published obviously without notice a millennia
ago,” would not be in the public domain and would still be
eligible for copyright protection, thus creating a limitless
copyright term. See 1-4 Nimmer on Copyright § 4.01[C][1], at
4-10.1. While an ancient work may be protected today under
the ruling of Twin Books, the term is not limitless. Instead, the
copyright term for a newly discovered ancient work that is not
in the public domain or copyrighted would be limited to a
finite term of seventy years after the death of the last author,
§§ 303(a), 302(a), (b), or December 31, 2047, whichever is
later, § 303(a); see also 1-4 Nimmer on Copyright
§ 4.01[C][1], at 4-10.1 n.35.23; 3-9 Nimmer on Copyright
§ 9.09[A], at 9-133. Thus, Twin Books does not conflict with
either the Copyright and Patent Clause of the Constitution or
Eldred.

                        CONCLUSION

   For the foregoing reasons, we find that Defendants
infringed Societe’s copyrights in the sculptures. We therefore
AFFIRM the district court’s grant of summary judgment in
favor of Societe on its copyright infringement claim.

  AFFIRMED
