A certain tension exists between copyright law and first amendment values. Copyright law has a particularly broad sweep today. It extends to books, creative literature, visual art, photographs, videos, sound recordings, and computer programs. Copyright protection also extends to the ‘‘derivative’’ forms of this work, including translations, performances, and digital reproductions. Even noncommercial use of copyrighted work can be illegal, as when copyrighted music is downloaded on one’s home computer.
Conventional wisdom has it that copyright law resolves any first amendment concerns by recognizing two limitations. First, the Copyright Act denies protection to ‘‘ideas,’’ ‘‘concepts,’’ facts, or ‘‘principles’’ per se and instead protects only their ‘‘expression.’’ Second, potential infringers are permitted to make ‘‘fair use’’ of copyrighted material. Because of these two limitations, the first amendment seldom plays a role in suits for copyright infringement. As Justice Ruth Ginsburg has written, existing copyright law contains ‘‘built-in free speech safeguards.’’
The fair use doctrine has been recognized by courts for more than 160 years, although it was not codified by Congress until 1976. The Copyright Act currently permits the fair use of copyrighted work ‘‘for purposes such as criticism, comment, news reporting, teaching. . .scholarship, or research.’’ When determining whether a defendant has engaged in fair use of copyrighted work, courts consider four statutory factors. They consider (1) the purpose and character of the defendant’s use, including whether the use is commercial or nonprofit; (2) the nature of the copyrighted work; (3) the amount of copyrighted work that has been used; and (4) the effect of the defendant’s use on the existing or potential market value of the work. The Supreme Court has emphasized that all these factors are to be weighed together and that no bright-line test exists for achieving this ‘‘sensitive balancing of interests.’’
In recent years, the Court has shown greatest solicitude for ‘‘transformative’’ use of copyrighted work when applying the fair use doctrine. The transformation standard focuses on the extent to which the alleged infringer ‘‘adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.’’ This transformative use of copyrighted material, although not necessary to a fair use defense, lies ‘‘at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.’’ When the alleged infringer ‘‘transforms’’ copyrighted work, even the infringer’s commercial exploitation of the transformed product is unlikely to negate the fair use defense. For example, in Campbell v. Acuff-Rose Music, Inc., the Court found that the rap group ‘‘2 Live Crew’’ had engaged in protected fair use when it parodied the classic Roy Orbison song, ‘‘Oh, Pretty Woman’’ and profited by both recording and performing its parody.
Current law thus achieves a compromise between copyright and First Amendment values. Whether it is a sound compromise is a matter of debate. Professor Rebecca Tushnet, writing in the Yale Law Journal, has recently argued that the fair use doctrine protects only one version of first amendment values—a version that esteems the alleged infringer’s transformative expression—while ignoring a version that recognizes the value of nontransformative uses like copying. In particular, the fair use doctrine’s emphasis on transformative expression is said to ignore the interest of the public audience in gaining greater access to valued expression. It remains to be seen whether alternative versions of a compromise between copyright and first amendment values, like Tushnet’s, will ultimately gain traction in Congress or the courts.
MICHAEL S. FINCH
References and Further Reading
Cases and Statutes Cited