Copyright = Speech

Publication year2015

Copyright = Speech

Derek E. Bambauer


Derek E. Bambauer*


Expression eligible for copyright protection should be presumptively treated as speech for First Amendment purposes. Both copyright and the First Amendment share the goal of fostering the creation and dissemination of information. Copyright's authorship requirement furnishes the key link between the doctrines. This Essay examines where the two areas of law align and conflict in offering or denying protection. Using copyright law as a guide for the First Amendment offers three benefits. First, many free speech problems can be clarified when examined through copyright's lens. Second, this approach makes the seeming puzzle of non-human speakers understandable. Finally, it can help end technological exceptionalism in First Amendment doctrine.

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Copyright equals speech.1

This formula is plainly controversial, but it is also correct, as this Essay will show. It reverses the usual scholarly flow: normally, copyright looks to the First Amendment for guidance.2 Here, this Essay argues the First Amendment has much to learn from copyright. This Essay takes the position that if expression can be copyrighted, and if it does not fall into one of the categories of material that the Supreme Court has designated as beyond the First Amendment pale, then that expression is speech that enjoys First Amendment protection.

This contention engages the hotly contested debate over what constitutes "speech"—meaning expression that receives protection against government regulation. Under Chief Justice John Roberts, the Supreme Court has increasingly extended First Amendment protections—to violent video games,3 videos showing cruelty to animals,4 emotionally distressing demonstrations near funerals of soldiers killed in combat,5 and information about physicians' prescribing habits.6 While some scholars differ,7 many see the Roberts Court as broadening the ambit of the First Amendment and reducing the potential scope of government regulation.8

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Yet, the debate over speech continues to percolate, with decisions finding that search results9 and off-label drug marketing10 constitute protected speech, and decisions holding that conversations between physicians and patients about guns11 or gay conversion therapy12 are not. There are contests over protection for algorithmically generated information,13 revenge porn,14 emotionally injurious speech,15 unflattering information,16 political expenditures by corporations,17 network neutrality,18 and more. The hard question, as Toni Massaro frames it, is what speech is "above-the-line" (cognizable for First Amendment protection), and what is not?19 Copyright offers at least a partial answer. This Essay explains how authorship can inform First Amendment debates, applies copyright to free speech questions, discusses the implications of this approach and its shortcomings, and closes with some thoughts about higher-order ramifications of the methodology.

I. Authorship

Copyright can be helpful to First Amendment conundrums because of its requirement of authorship. The Constitution permits Congress to grant copyright protection only to writings by authors,20 and the Copyright Act limits its entitlements to original works of authorship.21 Over time, Congress has increased the scope of works that can qualify for copyright, subject as always

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to the Constitution's constraints.22 This expansion has survived challenge in the courts, most notably when a lithography company defended against an infringement suit from noted photographer Napoleon Sarony by claiming that photographs were outside the Intellectual Property Clause's (IP Clause) grant because they lacked authorship—they had no spark of human creativity, but only reproduced nature in static fashion.23 The Supreme Court rejected the company's contention—photography was nearly always imbued with authorial choices, and hence it was within Congress's power to award copyright privileges.24

Since then, nearly all works that fall within the statutory categories of copyrightable subject matter will enjoy protection, and the exceptions tend to prove the rule. These works qualify for monopoly rents because they are authored—they are the product of human creative labors.25 That is also why they qualify as speech under the First Amendment. Even computer programs, written in code impenetrable to most people, constitute expression of the ideas of their programmers.26 As the lithography case held, any injection of composition is enough to earn protection, and subsequent precedent sets a minimal bar for originality.27

The copyright scholarship on authors, though, is highly variegated. There are arguments about whether certain types of works ought to be within copyright's purview28 and over who ought to qualify as an author.29 There are

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critiques of the concept of authorship itself, particularly singular authorship.30 Principally, though, the fights are over who gets to be an author, and not whether there is an author for a particular work.31 For example, Ann Bartow argues that certain types of pornographic and violent works ought not to obtain copyright protection, but she frames this as a policy matter and not as a question of sufficient creativity.32 Wendy Gordon criticizes doctrinal and statutory changes that benefit publishers rather than authors.33 And the question of whether an actress with a bit part in a movie denigrating Islam could use a claim of authorship to prevent the film's distribution has seized the attention of judges and scholars alike.34

Yet authorship is key to the linkage between copyright and the First Amendment. Both seek to drive production and dissemination of information. In each area, judges are chary of all but the most minimal substantive analysis of content.35 Copyright uses authorship as a gatekeeping function: a work must be one of authorship to obtain the doctrine's entitlements. The First Amendment is also enmeshed in the search for human creativity and expression. The Supreme Court, in considering the interaction of these two areas of law, has repeatedly emphasized their similarity of purpose, particularly as a mechanism for reconciling their demands when they differ.36 This confluence makes copyright a natural resource for examining First Amendment issues.37 Put simply, where one finds authorship, one should expect to find speech.

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II. The First Amendment ' s Handmaiden38

Copyright can help First Amendment analysis. To determine what qualifies as speech versus non-speech, First Amendment doctrine examines (among other things) whether the expression is the result of human creativity.39 The IP Clause and the First Amendment serve similar purposes and flow from similar concerns, which is why copyright law receives greatly relaxed free speech scrutiny.40 Outside minimal limits, congressional power to set the contours of copyright protection is nearly absolute.41 This Essay suggests that the converse should also be true: outside minimal exceptions, works satisfying copyright's requirements ought to enjoy greatly enhanced free speech protection. Thus, where we find authorship for copyright purposes, we should expect to find speech. Or, put another way, we should usually be surprised to find a copyrightable work that is outside the scope of First Amendment protection—where the government could regulate the work in contravention of the author's wishes or ban it altogether.42 This approach serves the First Amendment value of imposing a structural constraint on governmental attempts to ban speech either outright or via the imposition of regulatory costs and uncertainty.43 And, this Essay's methodology offers a rule-like test that has relatively low transaction costs: it is easy to employ with confidence in its accuracy.

To be clear, the issue is not which tier of scrutiny a particular work falls into but rather the binary question of whether it is "above-the-line" or below—speech for First Amendment purposes or non-speech.44 Copyrighted works will range across the spectrum of First Amendment tiers, from expression receiving the highest protection (such as Vladimir Nabokov's Lolita,45 or Citizens United's Hillary: The Movie46 ) to that enjoying intermediate scrutiny (such as 44 Liquormart's ads about its low prices for alcohol47 ) to that receiving no

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protection (such as obscenity48 ). There is a plethora of copyrighted material that falls within the commercial speech tier: advertisements for circus acts,49 commercials for terrible light beer,50 and the like.

There are also categories of material where copyright protection holds, and yet the First Amendment permits the government nearly unfettered regulation of content. And there are zones denied copyright protection where the First Amendment operates with full force. The exceptions in both categories tend to prove the rule:

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Figure 1: Copyright Protection vs. First Amendment Protection

No First Amendment


First Amendment Protection



Child pornography53



Speech integral to criminal conduct56

Incitement to violence57

The remainder





Functional matter60

Fighting words61


Unfixed material (federal copyright)63

Copied/infringing material64 Facts65

Material subject to merger doctrine66

Scènes à faire67

Public domain works68

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There are also unresolved areas, such as the now-famous "monkey selfie" photograph, which likely does not enjoy copyright protection (since the author is not human) and which hence might not be protected under the First Amendment.69 Generally, however, First Amendment speech and copyrightable works of authorship are coterminous.

III. Implications

This approach generates at least three useful insights. First, and most critically, using copyright doctrine...

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