Copyright and Free Expression
The Supreme Court acknowledged the compatibility of copyright and free expression in Harper and Row v. Nation Enterprises (1985), when Justice Sandra Day O’Connor wrote, “The 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.”
Tension does exist, however, between copyright and the First Amendment, as copyright owners often seek to assert their property rights and thereby limit the dissemination of information. Copyright law attempts to reduce this tension in part through fair use, a safety-valve concept codified by the Copyright Act of 1976.
Following are cases involving copyright and the First Amendment.
In Bobbs-Merrill Co. v. Straus (1908), the Supreme Court said authors could
not control the price of subsequent sales of a book by copyrighting the
book.
Campbell v. Acuff-Rose Music, Inc. (1994) protected a parody from copyright
infringement, illustrating how the Court viewed the relationship between
the First Amendment and parody.
Eldred v. Ashcroft (2003) said that the Copyright Term Extension Act of
1998 did not violate the First Amendment. Copyright and the First Amendment
were compatible.
Although Folsom v. Marsh (C.C.D. Mass. 1841) did not reference the First
Amendment, it was an early copyright case which said a book violated fair
use by reprinting letters.
Golan v. Holder upheld a U.S. copyright law against First Amendment
challenges. The law had taken previously available foreign works out of the
public domain.
Harper & Row v. Nation Enterprises (1985) ruled that copyright infringement
of the unpublished memoir of Gerald Ford was not protected by the First
Amendment.
San Francisco Arts & Athletics v. the U.S. Olympics Committee (1987) said
there was no First Amendment violation in giving exclusive use of the the
word ‘Olympics’ to the USOC.
Wheaton v. Peters (1834) was one of the first cases to deal with
copyrights, the protection of which is an exception to general First
Amendment protections.
