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A constitutional clash: free speech, copyrights and Mickey Mouse

Inside the First Amendment

By Kenneth A. Paulson
Senior vice president, the Freedom Forum
Executive director, First Amendment Center

10.20.02

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The U.S. Constitution helps ensure liberty for all, but holds dual blessings for artists, authors and composers: the right to both make a point and make a buck.

The First Amendment, of course, guarantees our right to write and create as we wish. But the Founding Fathers also encouraged creativity with a constitutional guarantee of copyright protection. By giving Congress the power to promote the progress of “useful arts by securing for limited times” exclusive rights to literary and artistic creations, the founders motivated authors and others to develop original work.

It made sense. If a creative work could be freely stolen the moment it was published, creativity would be stifled. But the founders also understood that the copyright clause could cut both ways: If you give someone permanent ownership of a creative work, few will adapt or try to build on that work. Ideas would come to a dead end.

That’s why Congress was only given the power to grant copyright protection for “limited times.” After that limited time has expired, works of art, literature and film fall into the public domain, allowing anyone in the public to copy or perform these works without paying a fee.

It’s a thoughtful balance, guaranteeing that creators are compensated throughout their lifetime and for a limited time beyond, but also eventually making all works of art available to the public free of charge.

Last week, the U.S. Supreme Court heard arguments in a case that could substantially affect that balance and determine to what extent Congress can establish longer periods of copyright protection.

It’s no surprise that corporations that make money from creative works have a strong self-interest in keeping their content out of the public domain. The most visible example is the Walt Disney Co.’s Mickey Mouse.

The original Mickey Mouse cartoons would have entered the public domain next year, but in 1998 Congress stepped in with a 20-year extension of copyright protection, a total of 70 years after a creator’s death. It’s no surprise that this expanded legal protection for Mickey Mouse and other creations came after Disney lobbied heavily and donated to the campaigns of senators and representatives who sponsored the legislation.

To be clear, the loss of copyright protection on early images of Mickey Mouse wouldn’t have prevented Disney from continuing to use its most famous character. The company holds the trademark and could continue to use Mickey throughout its media and theme park empire. The only change would have been that an early cartoon like 1928’s “Steamboat Willie” would have been available free for use by the public.

In the case now before the Supreme Court, companies that sell material that has entered the public domain contend that this 20-year extension is all about feeding the profits of major media corporations, undercutting the original intent that these protections be in place for a limited time. After all, they argued, what’s the meaning of “limited time” if Congress keeps extending the copyright protection in response to lobbying by giant corporations? Will this material ever truly accrue to the public’s benefit?

We won’t know the outcome of this case for several months, but the justices are likely to uphold the copyright extension as a legitimate — if unwise — exercise of congressional power. As Justice Sandra Day O’Connor noted during the arguments, “I can find a lot of fault with what Congress did. This flies directly in the face with what the framers of the Constitution had in mind, but is it unconstitutional?”

If the other justices share O’Connor’s perspective, the Court will conclude that it doesn’t have the power to overturn the law because the additional 20 years still constitutes a “limited time.”

Yet if the Supreme Court doesn’t overturn this extension, courts nationwide still will have tremendous influence on the way copyright law is applied. They can recognize the public’s right to use copyrighted material to make “fair use” of the content.

The original copyright law was designed to protect creators and their families. Over time, large corporations with media interests and theme parks became the wealthiest and most powerful copyright holders. Corporations like Disney built much of their empires by relying on public domain material, using Pinocchio, Snow White, Cinderella and many others free of charge. They then put their own creative stamp on these works and copyrighted them for their own protection.

For understandable reasons, these corporations are zealous in protecting their copyrights. Corporate attorneys will tell you they have to be aggressive in order to protect against the potential loss of their copyrights. But the fair use of such material, clearly labeled with the identity of the copyright-holder, poses no such threat.

Where copyright was once a shield, it’s now used as a weapon, challenging Americans who want to comment on or use copyrighted material for nonprofit and educational purposes.

Witness the number of major studios that have intimidated fans into taking down Web sites about their favorite television shows and movies. Look at the “cease and desist” letters sent to young people who built online tributes to Harry Potter. Consider the lawsuit filed by Margaret Mitchell’s estate to try to block publication of a Gone With the Wind parody written by Alice Randall. The case regarding Randall’s The Wind Done Gone was settled eventually, but not before Randall incurred substantial litigation costs.

In theory, copyright law provides for educational, satirical and nonprofit use of copyrighted material. But virtually anyone who uses copyrighted material in a presentation, performance or Web site runs the real risk of being sued by a corporation with far deeper pockets than the average person.

As Siva Vaidhyanathan, assistant professor of culture and communication at New York University, wrote recently in the Chronicle of Higher Education, “fair use, while not quite dead, is dying.”

Vaidhyanathan says educational use is particularly at risk.

“Course packets that used to be easy to assemble and affordable for students are now a big hassle and a big expense,” Vaidhyanathan observed. “Getting permission to quote from a song or to include an old photograph in a scholarly publication is getting to be prohibitively expensive.”

It’s here that the First Amendment comes into play. We can’t allow copyright protection to trump free speech. The fair-use doctrine needs to be applied with vigor. In a society immersed in popular culture, copyrighted materials should be fair game for discussion, exploration and teaching.

The founders’ careful balance between compensation and free expression for creators has been undermined. It’s clear that courts — and not Congress — are most likely to recognize the real First Amendment stake in all of this. This nation can’t allow lobbying, legislation and the threat of litigation to short-circuit ideas.

Ken Paulson is executive director of the First Amendment Center with offices in Arlington, Va., and Nashville, Tenn. His mailing address is:
Ken Paulson
First Amendment Center
1207 18th Ave. S
Nashville, TN 37212

Related

Showdown between copyright, First Amendment turns into sideshow
Analysis Oral arguments before high court instead focus on whether Congress overstepped its authority in passing 20-year copyright extension.  10.10.02

Supreme Court backs Congress' copyright extension
7-2 ruling, though not unexpected, is blow to Internet publishers, others wanting to use old books, creations without paying high royalties.  01.15.03

High court hears arguments in case of Congress, copyright and Mickey Mouse
Justices are considering whether it was unconstitutional for Congress to give writers, other creators a 20-year copyright extension on their works.  10.09.02

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