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So central is the idea of the freedom of speech, that the Bill of Rights places it first and foremost as the primary tenet of a democratic republic.  Specifically, “Congress shall make no law…abridging the freedom of speech, or of the press[.]”  Further, this potent protection providing freedom of speech presumptively applies to all forms of artistic expression: words, images, sounds, movements and more.  In an era where anyone with an Internet connection and a thought can be a writer/publisher, the importance of such a right has perhaps never felt more real to “We the people.”

In addition to this freedom, the U.S. Constitution provides a means of incentivising our creative authorship by protecting it for a limited time from misappropriation.  Specifically, Article 1, Section 8, Clause 8 of the U.S. Constitution, affectionately known as the Copyright Clause, reads: “Congress shall have Power to…[secure] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…[.]”  By granting authors the right to prevent infringers from profiting off of unauthorized copies of their works, Congress provided a means by which creators of copyrightable content could make a living through the ability to monopolize their content for a set period of time.

Therein lies the contradiction.  The First Amendment and the Copyright Clause necessarily limit each other despite the founders’ express Constitutional directive that no law abridging the freedom of the speech shall be made.

How, then, does the First Amendment comport with the strict and menacing limitations on expressions created by Copyright? From this vantage point, copyright law appears to act as a mutant form of censorship.  For example, if a creative content producer sought to incorporate a popular literary and film character, like Harry Potter, into his own book or a drop a short musical sample from George Clinton’s catalog into a remix, copyright law has caused our purportedly boundless freedom to express ourselves to come to an abrupt end.[i]

Many legal scholars find this reality repugnant to the plain language of our Constitution and the purpose of the copyright clause.  They posit creative expressions built upon previously published copyrighted content should be lawful.[ii] An example of one such mash-up work debacle is Danger Mouse’s 2004 release entitled The Grey Album.  This record was an ingenious remix of The Beatles’ self-titled album (a.k.a. The White Album) and Jay-Z’s The Black Album.[iii] Sadly, this work was quickly quashed by cease-and-desist letters sent by EMI, copyright owners of the sound recording of The White Album, and has yet to (legally) resurface.  Given the broad and seemingly unambiguous language of the First Amendment, Danger Mouse’s The Grey Album should have fallen squarely in the realm of protected speech.  But any argument of free speech under these circumstances cannot survive a claim of copyright infringement.

To be fair, copyright is not necessarily a cold-blooded villain.  After all, it was designed to incentivize and protect the creative content producers.  Furthermore, within the Copyright Act’s voluminous scripture lives a nebulous exception to infringement designed, at least in part, to allow for certain otherwise infringing works to be lawful.  Granted, the doctrine of Fair Use has afforded a certain amount of leeway for limited exceptions like highly transformative parodies or nonprofit educational uses, but this remains a small concession in light of our purported adoration and need for the First Amendment’s expansive freedoms.

Copyright is only but one area of the law that limits our ability to freely express ourselves. For example, obscenity law, trademark law, and the right of publicity loom in over our speech as well.

Judge Alex Kozinski’s dissent in the famous right of publicity case, White v. Samsung Electronics, Inc., stated:

“Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before.”[iv]

Should the copyright law be more understanding of our accretion-based culture?  Is the fair use doctrine insufficient in light of the floodgates of content creation spurred by the Internet?  Do artists need the economic incentives provided by copyright protection to promulgate their craft?

[Photo by Mr. Enjoy @Flickr]

[i] See Warner Bros. Entm’t Inc. v. RDR Books, 575 F. Supp. 2d 513, where the Harry Potter lexicon was held to be an unauthorized infringing derivative of J.K. Rowling’s popular Harry Potter series not qualifying for the fair use exception.  See also, Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, where the usage of a short three note sample from a guitar solo on a George Clinton album was held to not be so de minimis as to escape liability.

[ii] See generally, http://remix.lessig.org.

[iii] See http://www.youtube.com/watch?v=O3VVykEt37c to listen to a track from The Grey Album entitled “What More Can I Say?”.

[iv] 989 F.2d 1512, 1513 (9th Cir. 1993) (Kozinski, J., dissenting from denial of rehearing en banc).

*Ian Gibson, Esq. is an attorney licensed to practice in the state of California. This article is for informational purposes only and is not intended to constitute legal advice. Visiting iangibson.com does not create an attorney-client relationship. This material may be considered advertising under applicable state laws. Copyright © 2012-2013 Ian Gibson, Esq.

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