The Freedom of Imagination: Copyright's Constitutionality PDF Print E-mail
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112 Yale L.J. 1 (2002)

In some parts of the world, you can go to jail for reciting a poem in public without permission from state-licensed authorities. Where is this true? One place is the United States of America.

Copyright law is a kind of giant First Amendment duty-free zone. It flouts basic free speech obligations and standards of review. It routinely produces results that, outside copyright's domain, would be viewed as gross First Amendment violations.

Outside of copyright, for example, a court order suppressing a book (especially in the form of a preliminary injunction) is called a "prior restraint," "the most serious and the least tolerable infringement on First Amendment rights." In copyright law, however, such orders are routine. Just last year, in a much-publicized case, a federal district court enjoined publication of The Wind Done Gone, the novel about a slave born on Gone with the Wind's Tara plantation. (Disclosure: I was counsel to Alice Randall, author of The Wind Done Gone, in this litigation.)

Or again, in 1995, a former member of the Church of Scientology posted on the Internet portions of the Church's "spiritual healing technology" materials, with the intention of exposing the Church as a "fraud." For this offense, police searched the individual's home for seven hours, seized books, and went through his personal computer files, copying some and erasing others, with the help of a "computer expert" provided by the Church. In the ensuing litigation, did the district court express concern about police officers assisting a "church" to suppress dissent? On the contrary, the court held that the defendant was likely guilty of copyright infringement and therefore issued a prior restraint "prohibiting any further copying" of Church materials.

What is particularly disturbing about these cases is that both district courts expressly declined to consider the defendants' First Amendment arguments. In this respect, the two cases were typical. Courts consistently hold that copyright does not have to answer to First Amendment scrutiny. "[C]opyrights," as the District of Columbia Circuit recently put it, "are categorically immune from challenges under the First Amendment."

It is time to put copyright on trial. The familiar explanations of copyright's insulation from the First Amendment are wholly inadequate. A new First Amendment analysis of copyright is needed.

This means, however, that we also need an account of the First Amendment status of art and entertainment. Art and entertainment are central to (although not exhaustive of) the business of copyright; how central are they to the First Amendment? A painting by Pollock is "unquestionably shielded" by current free speech law, but what makes it so is less clear. Are video games--typical subjects of copyright law--similarly protected? What does their protectedness depend on, and would the level of protection change if they qualified as "art"? Thinking through copyright's constitutionality requires answers to these questions.

Contemporary First Amendment scholarship offers two principal accounts of art's protection: one based on art's contribution to democracy, the other based on art's contribution to individual self-realization. Both approaches are driven by preconceptions of First Amendment theory; neither is satisfactory. The first paints art too politically, the second too narcissistically. It is no coincidence that a free speech jurisprudence lacking a good account of art's protection also lacks an appropriate framework within which to evaluate copyright.

I will suggest that the constitutional protection of art is best understood through a principle I will call the freedom of imagination. Under this freedom, no one can be penalized for imagining or for communicating what he imagines. Nor can a person be required to obtain permission from anyone in order to exercise his imagination. Copyright, I will argue, must answer to this freedom.

Part I of this Article describes copyright's conflicts with the First Amendment and shows how, notwithstanding these conflicts, courts refuse to subject copyright to independent First Amendment review. Part II addresses the most common explanations of copyright's First Amendment immunity. These explanations are, for the most part, standard fare in the literature. None of them, however, is remotely adequate.

Part III elaborates the freedom of imagination, defining, defending, and delimiting it. This freedom, I will suggest, not only best captures the First Amendment's protection of art, but also underlies a number of other paradigmatic First Amendment protections as well.

Part IV measures copyright against this freedom. I argue that copyright's core prohibition against piracy is consistent with the freedom of imagination, but that a good deal of copyright law outside this core is not. In particular, the freedom of imagination calls into question the enormous and growing set of prohibitions imposed by modern copyright law on so-called "derivative" works. I conclude that copyright's prohibition of unauthorized derivative works is unconstitutional, but that it could be saved if its regime of injunctions and damages were replaced by an action for profit allocation.