The First Amendment is perhaps the most famous part of the Constitution. Defending People’s blogger Mark Bennett ran a tally of how many times each article and amendment (of the ten included in the Bill of Rights) in the Constitution was specifically mentioned in the week leading up to Constitution Day; the First Amendment was mentioned by bloggers nearly as many times as all others combined. In the words of the Oxford Companion to the Supreme Court of the United States, the Amendment “reflects vital attributes of the American character,” “is the cornerstone of the nation’s liberty,” and “is known and cherished by virtually all citizens.”
It may come as a surprise then, that very few cases concerning the First Amendment arose in the first hundred or so years of its existence. It wasn’t until after World War I that the Supreme Court began to develop many of the free speech doctrines we see today.1
What does this have to do with copyright? Well, if you take a closer look, you can see an inherent tension between the First Amendment and copyight law. The First Amendment prevents the government from restricting freedom of speech; copyright restricts the ability of a person to “speak” using the words of another.2
Like the development of modern free speech doctrines, this recognition of a conflict between the First Amendment and copyright law is a relatively recent phenomenon. It wasn’t until about the 1960s when the idea began to receive attention from legal scholars.3 It wasn’t until 1985 that the “kernels” of the modern doctrines addressing the tension between the First Amendment and copyright law were sown by the Supreme Court, in Harper & Row v. Nation Enterprises. In 2003, in Eldred v. Ashcroft, the Court fleshed out the current state of the law concerning the relationship between the First Amendment and copyright.
Simply put, the Court said, First Amendment concerns are adequately addressed by “copyright’s built-in free speech safeguards.” It noted two of those safeguards: the “idea/expression dichotomy” and the doctrine of fair use. It also suggested that there are supplemental safeguards, like copyright law’s exceptions for libraries and archives.
Criticisms of this approach began in earnest after Harper & Row and multiplied in the wake of Eldred.4 The overall theme is that copyright’s safeguards are not, in fact, adequate to address First Amendment concerns – specifically in cases of what I label “creative infringement.”5
But something is missing in the discussion about copyright and the First Amendment. For all the attention given to the First Amendment concerns of alleged infringers, there is scant attention devoted to the First Amendment concerns of infringees – artists and creators.
Artistic Expression and the First Amendment
Part of this lack of attention stems from how the subject matter of copyright – artistic expression – is viewed. As constitutional scholar Sheldon Nahmod states, “Artistic expression has been assigned a derivative and second-class status in the views of many first amendment thinkers, the Supreme Court, and other courts.”6 Much First Amendment scholarship focuses on protection of political speech, with other forms of speech – like artistic expression or commercial speech – relegated to the margins of the discussion.
This slighting of artistic expression in First Amendment theory is not historically unusual; many philosophic schools of thought have placed relatively little importance on the role of art in society. Some have been downright skeptical of artistic expression. Nahmod notes that, “According to Plato, the state must control art for the good of the society as a whole. Otherwise, art threatens the stability of the state.”7 He adds that contemporaries of Marx, too, “are so convinced of art’s influence that they view art as an appropriate subject for state control.”8
Artistic expression has been subjected to censorship in the US throughout its history, with restrictions largely aimed at sexual content. Book bans are not unheard of; the film industry has a storied past involving first local government ratings boards and, later, voluntary industry ratings systems. Industry groups play a role in protecting the slighted First Amendment rights of artists and creators. The RIAA states that part of is its mission is working to protect the “First Amendment rights of artists and music labels”; lest the more cynical readers think this is just PR lip-service, I point out the amicus brief filed just last week by the MPAA, RIAA, and other industry groups arguing that California’s recent law prohibiting the sale of violent video games to minors is unconstitutional.
But artistic expression can serve other purposes that make it, even absent any objectionable content, unworthy of more than second-class status in scholarly discussion. It can often be used as entertainment, a diversion from the drudgery of ordinary life. Here, we can draw analogies between artistic expression as entertainment and other forms of entertainment throughout history to see that this low opinion of artistic expression is not an anomaly. Sports have, at various times, been the subject of regulation or outright banning by governments. In England during the Middle Ages, soccer, bowling, golf, and other sports were the subject of bans at various times. Often, these bans reflected the idea that these sports diverted young men’s energy away from military training and were thus a threat to law and order.9
Despite its at-times uncomfortable fit within First Amendment theory and a general snubbery throughout history, artistic expression flourishes in the US. Movies and television shows created here are watched around the world. Jazz, rock and roll, and hip-hop have all arisen within the US. As a result of all of this, artistic expression in the US can sometimes find itself in an odd position. For example, in the late 80s and early 90s, several record store clerks were arrested for selling 2 Live Crew albums to minors;10 in 1994, the highest court in the US upheld that same group’s right to release a ribald, dirty parody of Roy Orbison’s Pretty Woman as fair use.11
Artistic Expression, the First Amendment, and Copyright
Attention to artistic expression’s place within First Amendment theory remains underdeveloped. However, within discussions of copyright law, the role of artists’ First Amendment rights is practically ignored.
What do I mean by the role of artists’ First Amendment rights within copyright law? Courts that have addressed the tension between the First Amendment have, as I stated above, said that copyright law has built in safeguards to protect the First Amendment rights of those who make use of copyrighted works. But there’s another side of the coin. In Harper & Row - repeated later in Eldred – the Supreme Court declared that “the Framers intended copyright itself to be the engine of free expression.”12 The metaphor adopted by the court explains how copyright and the First Amendment accomplish the same goal – the dissemination of new ideas – through distinct means. Copyright pushes the dissemination – by providing an incentive to create new expression – while the First Amendment removes the obstacles in the way of that dissemination.
In many ways, the copyright incentive provides the most free method to spread new ideas. We don’t have to rely on the wealthy to fund whatever expression captures their fancy. We don’t have to rely on government to fund whatever expression it deems serves the state. Instead, we have a society where the values of artistic expression – as beauty, sublime, frivolity, or entertainment – and the value of artistic expression is determined solely by its members and the market. Patrick Ross, of the Progress and Freedom Foundation, puts it this way:
Our culture is remarkably vibrant and expressive, and is consumed around the world (even if many of those global consumers enjoy deriding our culture while consuming it). We embrace freedom of expression. We don’t burn down buildings when someone publishes a cartoon we find offensive. A bookstore can display the latest David McCullough biography beside a paperback collection of bathroom jokes. In fact, our culture seems pretty indestructible (we’ve survived the lip-synching scandals of Milli Vanilli and Ashlee Simpson, after all). While there will always be those who appoint themselves guardians and protectors of our culture, we can recognize that they aren’t truly needed. That is, they aren’t needed as long as artists retain their longstanding role in the culture. Artists, through the flexible exercise of their rights bundles, allow the culture to be enriched. No corporation can lock that culture down, and no p2p pirate can significantly erode that culture, as long as society collectively thanks its artists by respecting property rights.
But you won’t find much discussion of copyright’s role in the dissemination of new ideas when First Amendment concerns are raised in the context of copyright law. The “engine of free expression” metaphor is mentioned only in passing, ignored, or even dismissed as a “judicial sound bite.”13 That’s just wrong. In any case of “creative infringement,” there are two sides to the “free expression” coin. Any discussion of free expression rights which focuses on the rights of only one side (the alleged infringer) while ignoring the other (the infringee) is incomplete.
- The Oxford Companion cites Justices Holmes’ and Brandeis’ dissent in Abrams v. United States (1919) as sowing the “kernels of modern free speech doctrine.” [↩]
- I use the terms ‘speak’ and ‘words’ here in a very broad sense, as copyright protection extends to subject matter beyond the written word. [↩]
- See, e.g., Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1969); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43 (1971) (predicting a “coming clash between ‘free speech and press’ principles and copyright clause exclusive-rights principles.” [↩]
- See footnote 2 of Alan Garfield, The Case for First Amendment Limits on Copyright Law, for a sampling of several dozen books and articles exploring the subject. [↩]
- One such example of the relevance of this distinction regarding the First Amendment and copyright is provided by Mark Lemley and Eugene Volokh, who agree that “there’s no First Amendment problem” for preliminary injunctions in “piracy and other ‘easy’ cases” of copyright infringement. Freedom of Speech and Injunctions in Intellectual Property Cases (1998). But free speech concerns have also been raised in cases of “consumptive infringement” – albeit on issues outside the scope of copyright law. ((See the EFF’s amicus brief in Achte-Nuente v. Does for one such example. [↩]
- Nahmod, Artistic Expression and Aesthetic Theory: The Beautiful, the Sublime and the First Amendment, Wisconsin Law Review (1987). [↩]
- Nahmod, p. 227 [↩]
- Nahmod, p. 224 [↩]
- Andrew Pittman, The Interaction of Sport and Law: Where Has it Been, Where is it Now, and Where is it Going?, 2 Journal of Legal Aspects of Sport 64 (1992). [↩]
- Steve Jones, Ban(ned) in the USA: Popular Music and Censorship, 15 Journal of Communication Inquiry 73 (1991). [↩]
- Campbell v. Acuff-Rose Music, 510 US 569 (1994). [↩]
- 471 US 558 [↩]
- Michael D. Birnhack, The Copyright Law and Free Speech Affair: Making-Up and Breaking-Up, Idea: Journal of Law & Technology 43 (2003): 233. [↩]