Free Speech, Copyright, and Fair Use: We can express ourselves any way we want, even in ways that “steal” your own forms of expression, unless there’s a good reason to stop us.

Calling the right a creator has in his or her work intellectual property is misleading. It conveys the imipression thatthe work is property in the same way a television of a piece of land is property. You can fence in land. You can stop anyone from using your television. But intellectual property is not personal property the way things are and it is not real property the way land and the buildings attached to land are. Artists often think otherwise. In an interview on myartspace.com, for example, Steven Bogart, asked about his position on copyright, says simply, “Artists have a right to control their images and the right to be credited. ”

He might wish it so, but it isn’t so. Plainly, the lawsuits that result in findings that the use of copyrighted works are non-infringing fair use of copyrighted works all involve uses over which the artists have no control. If they had control, there’d be no lawsuits. Nor does fair use require crediting the artist whose work is used without consent.

There are many, many reasons underlying the fact U.S. law does not treat the product of creative expression like it treats personal or real property. Among them may be some comprehension that creativity is not the individual act of divine inspiration that Romantic poets believed and that in fact resulted in the rise of copyright as we know it.

But another, and very American reason U.S. law does not treat the products of creative expression the same ways it treats land holdings or the products of manufacturing is that the use of creative expression, authorized or not, is itself expression, and the freedom of expression is at the very core of what it means to be American. The fair use doctrine, which allows the use of copyrighted materials in certain circumstances without the consent of the owner of the copyright, is based squarely on the First Amendement’s guarantee of the freedom of expression.

Accordingly, in determining whether the unauthorized use of copyrighted work is non-infringing fair use, courts look at, among other things, whether the challenged use has a negative impact on the commercial market for the copyrighted work. While the commercial damage to the copyrighted work is a significant factor, Christina Bohannon, a law professor at the University of Iowa, believes that the importance of the right to free speech should require that it should be required in order for a court to find infringment. As she explains in the abstract to her paper, “Copyright Harm and First Amendment,” a showing of harm is required in every single other constitutional restriction on free speech and there is no justification for treating copyright differently:

Copyright law is a glaring and unjustified exception to the general rule that the government may not prohibit speech without a showing that the speech causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is purely speculative.

Potential explanations for copyright’s anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not come close to justifying its aberrant treatment. Moreover, copyright’s role in encouraging creative expression does not obviate First Amendment concerns. Rather, it provides a way to reconcile copyright law and free speech. Drawing substantially from First Amendment cases holding that speech restrictions must be justified by a governmental interest, this article argues that the First Amendment requires real proof of harm to the copyright holder’s incentives in order to impose liability for copyright infringement. It also explores the types of harm that might arise in copyright infringement cases and considers whether the First Amendment permits recognition of these types of harm. The article concludes that although demonstrable market harm is cognizable under First Amendment principles, recognition of harm to the reputation of copyrighted works, the author’s right not to speak or associate, or the copyright holder’s privacy interests is generally not compatible with the values of free speech.

Of course, I could say in response to Professor Bohannon the same thing I say to those who say artists do have the right to control their work and to attribution for any use of their work. You may wish it were so, and there may even be reasons to believe your position merits my sympathy, but that assertion isn’t the law and doesn’t make it the law.