Catching up with the First Amendment

Note — This post is written by Will Cross, this year’s intern in Duke’s Scholarly Communications office.  Will is an attorney now in library school, and comes to copyright law from a deep commitment to First Amendment values.

Last August Kevin wrote about the lawsuit between author J.D. Salinger and the author of a new book; Coming Through the Rye.  This work, which uses the interplay between a 76 year-old character named “Mr. C” (a clear allusion to Salinger’s Holden Caulfield, now grown old) and Salinger himself to create a work of “meta-commentary” on the relationship between the famous author and his iconic creation, was originally found to be an infringement of Salinger’s Catcher in the Rye.  Last week Kevin and I were delighted to see that the Second Circuit had reversed the district court’s decision until we read the opinion.

Rather than reconsidering the fair use and First Amendment issues raised by the amicus brief that Kevin discussed, the court rejected fair use and remanded  based only on a procedural issue.  Although Rebecca Tushnet suggests that the opinion includes some “nice language” about the First Amendment issues, I came away from the case very disappointed.

The opinion seems to give short shrift to the fair use argument itself, particularly since this seems to be exactly the sort of literary “criticism or comment” at the heart of fair use.  As another commentator has noted, it also illustrates just how slippery and troublesome it can be to draw legal distinctions between “criticism” or “parody”  (which are clearly fair use) and “satire” or unauthorized “derivative works” (which are not).  As books such as this and The Wind Done Gone make clear, the line between protected parody and unprotected satire can be difficult to measure, particularly for judges whose expertise may not include literary criticism or analysis.

My larger concern, however, is what cases such as this may mean for free expression.  If an author can stop comment on his work or an investment bank can get an injunction from criticism based on trademark then IP laws designed to promote creation and discussion begin to serve the opposite purpose.

Scholars such as Neil Netanel have argued for years that this tension is significant and due greater consideration by courts, who generally defer to Congress in this area.  As Netanial notes in his seminal article “Locating Copyright Within the First Amendment Skein”, courts have generally been unwilling to directly address the relationship between copyright and the First Amendment based on three presumed “safety vales”: copyright’s limited term, fair use, and the idea/expression dichotomy.

In 2001 Netanel argued that that these protections may be insufficient to safeguard the interests implicated by turning public expression into private property and since then things have not improved.  The copyright term has been extended by Congress and the Eldred Court suggested that such extensions may stretch to “forever minus a day.”  Scholars such a Yale’s Jed Rubenfeld have demonstrated the ongoing difficulties with putting the idea/expression dichotomy into practice.  And cases like this one suggest that fair use itself may be insufficient to protect expression, particularly where copyright boundaries are unclear or one party is more respected or sympathetic than the other.

Of course the Second Circuit’s decision may be appealed and some commentators have suggested that this case may lead to a mandatory licensing scheme similar to music rights.  But whatever the outcome, copyright’s effect on free expression must be taken seriously as an interest protected by the Constitution and resting at the heart of the law and policy that under girds copyright itself.