The First Amendment Implications of Copyright's Double Standard

Abstract

Beginning with a simple question, “What’s the big deal? It’s just entertainment,” this Article argues that copyright law restricts more than just entertainment - it restricts freedom of artistic expression. Despite copyright’s facial neutrality, courts have interpreted otherwise neutral rules to subject authors to a double standard for expression. Through a series of doctrinal contradictions and hypocrisies, copyright singles out “just entertainment,” imposing greater restrictions upon the freedom of those authors relative to all other authors. By discriminating against “entertainment,” the current doctrine violates its own fundamental tenet of non-discrimination. Moreover, by selectively restricting how authors may choose to engage in expression, copyright law violates the First Amendment’s guarantee of freedom of expression. After detailing copyright’s doctrinal difficulties and their First Amendment implications, this essay argues that the Supreme Court’s decision in New York Times v Sullivan is a roadmap for resolving future tensions between copyright and freedom of expression in a digital world in which authors are no longer limited to a privileged few and works of expression are no longer scarce.

Keywords: Entertainment, Artistic Expression, First Amendment, Copyright, Fair Use, Idea/Expression

JEL Classification: K23