Rebecca Tushnet

Copy this Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It

Defenders of transformative uses have invoked the First Amendment to bolster claims that such uses should not be subject to the copyright owner’s permission. But this focus on transformation is critically incomplete, leaving unchallenged much of copyright’s scope, despite the large number of nontransformative copying activities that are also instances of free speech. The current debate leaves the way open for expansions of copyright that, while not targeted at dissenting viewpoints, nonetheless may have a profoundly negative effect on freedom of speech. In other words, transformation has limited our thinking about the free speech interests implicated by copying. This essay discusses the free speech value of pure copying, from audience interests to speaker interests in self-expression, persuasion, and affirmation of connection with a larger political, religious, or cultural group.

All of This Has Happened Before and All of This Will Happen Again: Innovation in Copyright Licensing

Claims that copyright licensing can substitute for fair use have a long history. This article focuses on a new cycle of the copyright licensing debate, which has brought revised arguments in favor of universal copyright licensing. First, the new arrangements offered by large copyright owners often purport to sanction the large-scale creation of derivative works, rather than mere reproductions, which were the focus of earlier blanket licensing efforts. Second, the new licenses are often free. Rather than demanding royalties as in the past, copyright owners just want a piece of the action — along with the right to claim that unlicensed uses are infringing. In a world where licenses are readily and cheaply available, the argument will go, it is unfair not to get one. This development, copyright owners hope, will combat increasingly fair use — favorable case law.This article describes three key examples of recent innovations in licensing-like arrangements in the noncommercial or formerly noncommercial spheres — Getty Images’ new free embedding of millions of its photos, YouTube’s Content ID, and Amazon’s Kindle Worlds — and discusses how uses of works under these arrangements differ from their unlicensed alternatives in ways both subtle and profound. These differences change the nature of the communications and communities at issue, illustrating why licensing can never substitute for transformative fair use even when licenses are routinely available. Ultimately, as courts have already recognized, the mere desire of copyright owners to extract value from a market — especially when they desire to extract it from third parties rather than licensees — should not affect the scope of fair use.

Judges as Bad Reviewers: Fair Use and Epistemological Humility

Abstract The future of fair use depends on whether judges act like bad reviewers, or whether they behave differently in interpreting challenged works than they do in almost every other aspect of judging. Ordinarily, judges are asked to produce definitive answers about the meanings of texts. But when it comes to literary judgments, the bad reviewer is the one who insists that a work has only one meaning, and announces the bottom line as if it were an absolute. A good reviewer explains the sources of her judgment, making room for other interpretations. This is also what is necessary to a good fair use analysis. Unfortunately, copyright fair use cases rarely acknowledge multiplicity of meaning. Through discussion of fan-made music videos, this short commentary shows how transformative uses routinely invite multiple interpretations, just as “original” works do. As a result, a fair use analysis that insists on reducing works to single meanings will predictably fail in the aim of protecting transformative works that add new meanings or messages. The proper approach is epistemological humility: when reasonable audience members could discern commentary on the original work, a court should find transformation, even when other reasonable audience members could disagree.

Remix nation

Assessing the threat the anticircumvention provisions of the Digital Millennium Copyright Act pose for fair use.

The Indian Arts and Crafts Act: the limits of trademark analogies

Professor, Georgetown University Law Center, 2007-present Visiting Professor, University of Chicago Law School, fall 2012 Associate Professor, Georgetown University Law Center, 2005-2007 Visiting Associate Professor, Georgetown University School of Law, 2004-2005 Assistant Professor, New York University School of Law, 2002-2005 Attorney, Debevoise & Plimpton, Washington, DC, 2000-2002 Clerk, Associate Justice David H. Souter, Washington, DC, 1999-2000 Clerk, Chief Judge Edward R. Becker, U.S. Court of Appeals for the Third Circuit, Philadelphia, PA, 1998-1999

Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie and Exceptions

Barbie represents an aspiration to an ideal and also a never-ending mutability. Barbie is the perfect woman, and she is also grotesque, plasticized hyperreality, presenting a femininity exaggerated to the point of caricature. Barbie’s marketplace success, combined with (and likely related to) her overlapping and contradictory meanings, also allow her to embody some key exceptions to copyright and trademark law. Though Mattel’s lawsuits were not responsible for the initial recognition of those exceptions, they illuminate key principles and contrasts in American law. Mattel attempted to use both copyright and trademark to control the meaning of Barbie, reflecting a trend towards such overlapping claims. In order to ensure that their combined scope is no greater than the sum of their parts, both trademark and copyright defenses ought to be considered together. The Barbie cases highlight the problem that overlaps between the two regimes can challenge the very idea of IP boundaries, unless robust defenses exist against overclaiming.

Truth and Advertising: The Lanham Act and Commercial Speech Doctrine

The Lanham Act and its state counterparts in trademark and unfair competition law regulate speech in ways inconsistent with the current thrust of Supreme Courts commercial speech doctrine. The lines between confusing and informative uses of trademarks and between true and false advertising claims are difficult to draw, in ways that in other contexts - particularly libel doctrine - have led courts to impose increasing burdens on plaintiffs and regulators. I will discuss the First Amendment implications of distinguishing truth from falsity in commercial speech, applied to trademark infringement and to other types of false advertising. In addition, on a somewhat different note, I will consider trademark dilution, arguing that even a dilution law limited to classic nonconfusing uses of a famous mark on noncompeting goods is constitutionally deficient.