First Amendment, Copyright, Fair Use


It has been twenty-five years since Judge Pierre Leval published his iconic article, “Toward a Fair Use Standard,” urging that courts adopt a new guiding principle of “transformative use” to determine whether an unauthorized secondary use of a copy-righted work is fair. The Supreme Court’s emphatic endorsement of this approach in 1994 has resulted in a remarkable judicial expansion of the transformative use doctrine which today covers virtually any “creation of new information, new aesthetics, new in-sights and understandings.” While the Supreme Court reiterated in Golan v. Holder in 2012 that the fair use defense is one of copyright law’s key “built-in First Amendment accommodations,” the influence of the First Amendment on the transformative use doc-trine remains largely unexplored over the years. This Article analyzes how the different theoretical underpinnings of the First Amendment and certain categories of First Amendment-protected speech have been accommodated within the transformative use doctrine, and shows how the First Amendment has been—and will continue to be—the invisible hand that shapes the development of copyright law. It also addresses the unrelenting frustration in assessing transformative use and urges a consideration for assistance from a semiotic perspective of the First Amendment to illuminate what really are cultural contestations of semiotic signs masquerading as copyright disputes.