First Amendment Neglect in Supreme Court Intellectual Property Cases

39 Pages Posted: 6 Feb 2024

Date Written: January 11, 2024

Abstract

The Supreme Court decided two cases of central importance to free speech during the 2022 Term-in both cases without addressing the First Amendment implications. In Andy Warhol Foundation v. Goldsmith, 1 the Court upheld a ruling that Andy Warhol's reworkings of Lynn Goldsmith's photograph of the artist Prince into highly stylized silkscreens and drawings were not transformative, and thus were unfair, at least when images of the artworks were licensed to illustrate articles about Prince. In Jack Daniel's v. VIP Products, 2 the Court found that a parody dog toy in the general shape of a Jack Daniel's bottle, with the label "Bad Spaniels," deserved no special protection for its parody against Jack Daniel's trademark claim. The Court reached these results using ideas about the lesser status of profitable speech that it flatly rejected in other cases the same Term, and with

Keywords: First Amendment, Intellectual Property, Free Speech, Trademark

Suggested Citation

Lemley, Mark A. and Tushnet, Rebecca, First Amendment Neglect in Supreme Court Intellectual Property Cases (January 11, 2024). Available at SSRN: https://ssrn.com/abstract=4691950 or http://dx.doi.org/10.2139/ssrn.4691950

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Rebecca Tushnet

Harvard Law School ( email )

Cambridge, MA
United States

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