Wherein The Copia Institute Tells The Supreme Court Not To Let Copyright Law Destroy Free Expression, A Rare Right We Ostensibly Have Left
from the copy-that-precedent dept
I had to rewrite this post before it got published. I originally began it with some whimsy in response to the absurdity that copyright cases like these always engender. The idea that people could ever use their rights in previous expression to forbid someone else’s subsequent expression is almost too absurd to take seriously as an articulation of law. And, according to the Supreme Court, at least in the past, it wasn’t the law. Fair use is supposed to allow people use pre-existing expression to say new things. In fact, if the new expression did say new things, then it is absolutely should be found fair use.
In other words, the Second Circuit got things very wrong in the Andy Warhol/Prince prints case, and also the Ninth Circuit in the ComicMix/Dr. Seuss case. And so the Copia Institute filed an amicus brief at the Supreme Court, which agreed to review the Second Circuit’s decision, to say so.
But in light of the Supreme Court’s most recent decisions, I had to take out the whimsy. Assuming that Constitutional rights can survive this Court’s review has become an iffy proposition and not one where any lightheartedness can be tolerated. Our brief was all about pointing out how free speech is chilled when fair uses are prohibited, and how, if the Court would like not to see that constitutional right extinguished too, it needs to overturn the decision from the Second Circuit.
In that decision the Second Circuit last year had found that Andy Warhol’s Prince prints did not constitute a fair use of Lynn Goldsmith’s photograph of the musician Prince. But the problem with that decision isn’t just what it means for Warhol, or the Andy Warhol Foundation for the Visual Arts (AWF) that now controls the rights in his works, but what it means for everyone, because to find his work wasn’t fair use would mean that many fewer works ever could be fair uses in the future.
And such a reality would be in conflict with what the Supreme Court had previously said about fair use in the past. Sadly, even when it comes to copyright, the Supreme Court has had a few absolute clunkers of decisions, like Aereo (“smells like cable!”), Golan (snatching works back from the public domain), and Eldred (okaying the extending of copyright terms beyond all plausible usefulness). But even in those last two cases the Court still managed to reaffirm how copyright law was always supposed to comport with the First Amendment, and how fair use was a mechanism baked into copyright to ensure copyright vindicated those values. And the Court also has since reiterated how expansive fair use must be to vindicate them, most notably in the Google v. Oracle case last year, which reaffirmed its earlier fair use-protecting decision in Campbell v. Acuff-Rose (involving the 2LiveCrew parody of “Pretty Woman”).
Unfortunately, however, the Second Circuit’s decision was out of step of both those fair use decisions, which is why AWF petitioned for Supreme Court review, probably a big reason why review was granted, and why the Copia Institute has now weighed in to support their position with our own amicus brief.
In our brief we made the point that copyright law has to be consistent with two constitutional provisions: the Progress Clause, which gives Congress the authority to pass law that “promotes the progress of science and the useful arts,” and the First Amendment, which prohibits Congress from passing a law that impinges on free expression. As long as copyright law promotes expression, it is potentially constitutional, but if it impinges on expression, then it couldn’t be constitutional, under either provision. (We also pointed to the dissents by Justice Breyer in Golan and Eldred, which cogently and persuasively made these points, because with him leaving the Court this month those dissents are the only way he can continue to speak to the Court’s future consideration of such an important question of free expression.) The issue here in this case, however, is not that Congress tried to make a copyright-related law that was unconstitutional, but that the Second Circuit interpreted its copyright law in a way that now rendered it unconstitutional with its limiting read of the fair use provision that would now stand to chill myriad future expression, which even the majority decision in Eldred cast aspersions on courts doing.
We also pointed out how it would be so chilling to new expression by citing the Ninth Circuit’s even more terrible decision in the ComicMix case, where, like the Second Circuit, it similarly had found the fair use provision to be much more narrowly applicable to new expression than the Supreme Court had, and we used that case to help illustrate why the reasoning of the Second Circuit was so untenable. In particular, both these decisions negated the degree to which the original works were transformed to convey new meanings not present in the original, extended the exclusive powers of a copyright holder far beyond what the statute itself authorized, and threatened to choke off new expression building on previous works for generations, given the extraordinary length of copyright terms. As the ComicMix case illustrated so saliently, if this be the rule, then the dead have the power to gag the living, and that reality cannot possibly be consistent with a law designed to foster the creation of new expression.
Then we concluded by noting that it’s a fallacy to presume that giving more and more power to a copyright holder translates into more expression. Not only is there plenty of evidence to show that more copyright power is unnecessary for stimulating more expression, but, what these cases illustrate is that more power will ultimately result in even less.
Other amicus briefs are available on the Supreme Court’s docket page. We now await the response from Goldsmith and her amici, and oral argument, currently scheduled for October 12. And assuming precedent and actual Constitutional text still matter at all, a decision hopefully reversing the Second Circuit and reaffirming the right to free expression that fair use doctrine is supposed to protect.