We have it on the highest authority—Justice Souter writing for a unanimous Court in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston—that the paintings of Jackson Pollock are “unquestionably shielded” by the First Amendment.1 Of course we probably knew that from the development of obscenity law, driven as it was by a need to ensure that the proscription of obscenity not lead to the suppression of depictions that are merely erotic. Beyond authority, though, exactly why are Pollock’s paintings covered by the First Amendment? Consider that core First Amendment doctrine places under close scrutiny statutes that regulate speech based on its content, and, under even closer scrutiny, statutes that regulate speech based on the viewpoint it expresses. Yet, what exactly—or even roughly—is the content of Pollock’s Blue Poles, No. 11, or the viewpoint it expresses?
This Essay explores the question of the First Amendment’s coverage of nonrepresentational art, which proves quite difficult to answer satisfactorily—that is, in a doctrinal form that preserves other seemingly “unquestionable” results. Every approach one might take to explaining why the First Amendment covers art—that art is communicative, that it contributes to the creation of a culture of self-directed individuals and others I address—generates odd anomalies. The exploration does not question the conventional conclusion that the First Amendment covers artwork, but rather worries some of the often-unstated assumptions that underlie that conclusion. We will see, for example, that some things one might want to say about the question of whether the First Amendment covers nonrepresentational art8 lead to the suggestion, implicit in Archibald MacLeish’s observation about poetry, that James Joyce’s Ulysses might not be covered, surely a peculiar result. I do not mean to question Hurley’s assertion about Jackson Pollock’s paintings. Rather, I believe that by asking how that conclusion might be justified, we will come across some unexpected facets of the First Amendment, with some implications for other doctrinal areas abutting the First Amendment.
This Article addresses the argument that certain aspects of copyright law violate the First Amendment—an argument numerous copyright and constitutional law scholars advance—from a historical perspective. The Federal Courts have largely rejected versions of this argument, although in the wake of the Eldred v. Ashcroft decision there is some small indication that they are more willing to apply First Amendment doctrine to copyright cases. Most of the literature addressing the relationship between copyright law and the First Amendment approaches the question from either a doctrinal or an originalist perspective. Both perspectives face large problems. The doctrinal angle must contend with the large body of case law refusing to apply the First Amendment to copyright infringement suits, while the originalist perspective struggles with the lack of evidence of the intent of the ratifiers with respect to the relationship between the two clauses. In response to these two approaches, this Article argues that in order to understand the current tension between the First Amendment and the Copyright Clause, it is necessary to go beyond the founding generation and investigate the way both copyright and the First Amendment were transformed by the generation that lived through the period surrounding the Civil War and ratified the Fourteenth Amendment. Furthermore, because of the importance of historical struggles to the interpretation of the First Amendment, it is helpful to step outside the courtroom in order to understand the values that animate the Free Speech Clause. An understanding of this history clarifies the constitutional values embodied in the Copyright Clause and the First Amendment, and thus offers textual and historical grounding for the arguments that there is a tension between the two clauses that must be reconciled.
Despite gaining copyright protection for their works in 1976, choreographers infrequently register their creations and virtually never sue for infringement. Choreographers’ reluctance to assert and enforce their rights stems from the imperfect fit between copyright doctrines and long-held dance community customs, which include rules for licensing dances. Given choreographers’ extremely limited funds, the high cost of litigation and the infrequency of conflicts within the dance community, choreographers have little incentive to invoke the remedies of copyright law. Instead, the dance world has used licensing agreements to tailor the default copyright rules to its unique needs and to ensure that its works are preserved with integrity. This Note classifies these licensing agreements into three categories and then analyzes the advantages and disadvantages of each category for choreographers, licensees and nonchoreography right holders. The analysis reveals how choreographers effectively use the flexibility of contract law to respond to their individual financial circumstances, goals and concerns. Ultimately, contract reconciles custom and copyright by enabling choreographers to realize the economic value of their copyrights while also tailoring those rights to conform to long-held industry customs.
The primary aim of copyright law is to promote the creation and dissemination of knowledge by protecting the economic rights of authors.1 Economic rights, though valuable, do not encompass the free speech rights that can be threatened by the tension between copyright and the First Amendment. Conflicts between copyright law and the First Amendment are sometimes characterized as pitting the economic rights of authors against the free speech rights of those who wish to use their copyrighted works.2 The so-called fair use doctrine and the idea/expression dichotomy—two exceptions to copyright law’s categorical prohibition on copying—are often touted as sufficient to accommodate the First Amendment problems raised by copyright law.3 However, in copyright cases in which an author’s message is distorted in ways she disavows, these two exceptions are inadequate to protect original authors’ free speech rights, which may be in jeopardy.
