Author: Russell Hasan, Esq., Member of the Bar of the State of New York, J.D. UConn Law 2011
Some academics have raised concerns that copyright law might be in conflict with First Amendment free speech law. Some scholars fear that copyright law might restrict the free flow of information in the marketplace of ideas. The typical answer to such concerns, embodied in the Supreme Court cases Harper & Row Publishers Inc. v. Nation Enterprises and Eldred v. Ashcroft, is that copyright law contains internal doctrinal mechanisms, namely the idea-expression dichotomy and fair use, which alleviate free speech concerns. Copyright law protects only expressions, not ideas or facts; so where free speech might encourage an idea or fact to be widely disseminated, copyright law would restrict it. The idea-expression dichotomy holds that ideas and facts are not within the subject matter of copyright protection. Therefore the media is free to report on facts and spread ideas, so long as they do so using expressions alternative to those protected by copyright.
Commentators argue that sometimes the free-speech interest in spreading knowledge requires use of copyrighted expressions. These commentators suggest that cases that conflict with free speech might require the creation of a distinct free-speech defense to copyright infringement.
However, there is no need for a distinct free-speech defense. Copyright law already contains a doctrine, the merger doctrine, which, if properly applied, would reconcile copyright law and free-speech law in cases where expressions are necessary in order to effectively spread ideas or for the press and news media to report on facts. The merger doctrine was developed in two cases, Morrissey v. Procter & Gamble Co. and Herbert Rosenthal Jewelry Corp. v. Kalpakian.
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The views expressed here are exclusively of the author and do not represent agreement or endorsement by the Cardozo Arts & Entertainment Law Journal, Benjamin N. Cardozo School of Law, or Yeshiva University.
