Copyright and the First Amendment

The Copyright Clause nominally restricts free speech by allowing for an author’s monopoly to market his original work. The Court has “recognized that some restriction on expression is the inherent and intended effect of every grant of copyright.”1567 However, that the Copyright Clause and the First Amendment were adopted close in time reflects the Framers’ belief that “copyright’s limited monopolies are compatible with free speech principles.”1568 “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”1569

The Court has noted on several occasions that the copyright law contains two important First Amendment safeguards: (1) limiting copyright protection to an author’s creative expression of ideas, but prohibiting protection of ideas in and of themselves; and (2) permitting fair use of a copyrighted work in certain circumstances, including for purposes of criticism, teaching, comment, news reporting, and parody. These traditional contours of copyright protection have foreclosed heightened First Amendmebnt scrutiny of copyright laws.1570


Golan v. Holder, 565 U.S. ___, No. 10–545, slip op. (2012). back
Eldred v. Ashcroft, 537 U.S. 186, 219 (2003). back
Harper & Row Publishers, Inc., v. Nation Enterprises, 471 U.S. 539, 558 (1985). back
Eldred v. Ashcroft, 537 U.S. 186 (2003); Golan v. Holder, 565 U.S. ___, No. 10–545, slip op. (2012). back