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ArtI.S8.C8.3.3 Copyright and the First Amendment

Article I, Section 8, Clause 8:

[The Congress shall have Power . . . ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Copyright, by its nature, may restrict speech—it operates to prevent others from, among other things, reproducing and distributing creative expression without the copyright holder’s permission.1 The Supreme Court has thus recognized that “some restriction on expression is the inherent and intended effect of every grant of copyright.” 2 Even so, the restrictions on speech effected by copyright are not ordinarily subject to heightened scrutiny.3

The Supreme Court has reasoned that, because the Intellectual Property (IP) Clause and the First Amendment were adopted close in time, the Framers believed that “copyright’s limited monopolies are compatible with free speech principles.” 4 The Framers intended copyright to be “the engine of free expression” by providing “the economic incentive to create and disseminate ideas.” 5 As a result, so long as Congress maintains the “traditional contours” of copyright protection, copyright laws are not subject to heightened First Amendment scrutiny.6

The traditional contours of copyright law include two important “built-in First Amendment accommodations.” 7 The first is the idea-expression distinction, which provides that copyright does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 8 For example, copyright in a nonfiction essay extends only to the particular creative expression used to describe its ideas; others remain free to communicate the same ideas in their own words.9 Because of this distinction, copyright’s impact on free expression is reduced because “every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.” 10

Copyright law’s other First Amendment accommodation is the fair use doctrine. Fair use is a privilege that permits certain uses of a copyrighted work, for purposes such as “criticism, comment, news reporting, teaching[,] scholarship, or research,” without the copyright holder’s permission.11 Courts assess whether a particular use is fair using a multifactor balancing test that looks to, among other considerations, the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used; and the economic impact of the use on the market for the original work.12 Fair use also considers whether a use is “transformative” —that is, whether it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” 13 Fair use serves First Amendment purposes because it “allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.” 14

See 17 U.S.C. § 106. back
Golan v. Holder, 565 U.S. 302, 327–28 (2012). back
See Eldred v. Ashcroft, 537 U.S. 186, 218–19 (2003); Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 560 (1985). back
Eldred, 537 U.S. at 219. back
Harper & Row, 471 U.S. at 558. back
Golan, 565 U.S. at 890–91. back
Eldred, 537 U.S. at 219. back
17 U.S.C. § 102(b). back
Id. The Supreme Court famously articulated the idea-expression distinction in Baker v. Selden, which concerned the scope of the copyright in a book describing an accounting system. 101 U.S. 99, 100 (1880). back
Eldred, 537 U.S. at 219 (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349–50 (1991)). back
17 U.S.C. § 107. back
Id. For applications of the fair use factors, see, e.g., Google LLC v. Oracle Am., Inc., No. 18-956 (U.S. Apr. 5, 2021); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575–94 (1994); Harper & Row Publishers v. Nation Enters., 471 U.S. 539, 560–69 (1985); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 448–56 (1984); Folsom v. Marsh, 9 F. Cas. 342, 347–49 (C.C.D. Mass. 1841) (Story, J.). back
Campbell, 510 U.S. at 579. back
Eldred, 537 U.S. at 219. back