Notre Dame Law School NDLScholarship Journal Articles Publications 2010 Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies? Joseph P. Bauer Notre Dame Law School,
[email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the First Amendment Commons, and the Legal History Commons Recommended Citation Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies?, 67 Wash. & Lee L. Rev. 831 (2010). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/375 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact
[email protected]. Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies? Joseph P. Bauer* Abstract The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better, and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform, andperform that work for an extended period of time. The First Amendment, on the other hand, proclaims that Congress "shall make no law... abridging the freedom of speech or of the press," thus at least nominally indicating that limitations on the reproduction and distribution of works-including the works of others-areforbidden. Courts, including the U.S. Supreme Court in Eldred v. Ashicroft, have stated that these two regimes can be reconciled in large part by some mechanisms internal to the copyright system, and in particularthe fair use doctrine and the denial of copyright protection to facts and ideas.