Brigham Young University Law Review, Vol. 1986, No. 4 (1986), pp. 983-1042


The relationship between copyright and the first amendment has been discussed repeatedly in the past fifteen years. A free speech privilege has been asserted as a defense in many copyright infringement actions, and the topic has been the subject of lively academic debate. Although no court has held an infringement claim to be defeated by a first amendment defense, considerable attention has been paid to the potential conflict between copyright and free speech interests. Commentators have speculated that in some situations copyright protection could impermissibly abridge the first amendment. The United States Supreme Court's decision in Harper & Row, Publishers v. Nation Enterprises, in which the Court refused to create a “public figure exception”' to copyright, finally resolves some of the questions about the interplay between copyright and free speech principles, but will not cease speculation about the need for a first amendment exception to copyright. This article analyzes Nation Enterprises and discusses its impact on the relationship between copyright and free speech interests. It asserts that the Copyright Act and the first amendment are effectively accommodated by the Supreme Court's conception of copyright as the engine of free expression, its approach to the fair use doctrine, and its recognition of the idea/expression dichotomy. This thesis is defended by reexamining the decision in Time Inc. v. Bernard Geis Associates in light of Nation Enterprises. This article concludes that as a consequence of Nation Enterprises there is no need to define an independent first amendment or public interest defense because copyright's existing internal structure already limits its application to a constitutionally permissible sphere.