Hollywood’s Love for the First Amendment Stops at Copyright’s Door
It’s that time of the year again. People are cheering for their favorites and handicapping the races. The Academy Awards were Sunday, and movie fans have been speculating about who ultimately won since the Oscar for Best Picture since the nominees were announced. Among the standouts this year was Steven Spielberg paean to the 1st Amendment, The Post, an enthralling account of the Washington Post’s publication of the Pentagon Papers and the ensuing legal struggle.
Freedom of expression has always been a popular topic in Hollywood. That’s understandable given how essential that freedom is to the creative process. Other popular cinematic tributes to the protections afforded by the first of our rights include, The People vs. Larry Flynt, All the President’s Men, Good Night and Good Luck, and The Fifth Estate. Last year, Bryan Cranston received an Oscar nomination for portraying blacklisted screenwriter Dalton Trumbo, who didn’t receive the Best Story Oscar for the film The Brave One because he had to write it under a pseudonym.
Nor does the film industry limit its advocacy of the First Amendment to the movies it produces. The industry’s trade association, the Motion Picture Association of America (MPAA), has filed friend of the court briefs in numerous First Amendment cases. “Free speech and free expression,” the MPAA explains, “unencumbered by government interference or doctrine, empowers our creative community to not only entertain, but to inform, challenge, and inspire.”
Yet for all its genuine appreciation for and dependence on the First Amendment, Hollywood has something of a blind spot when it comes to the First Amendment rights of others. Safeguarding first amendment rights often takes a backseat to copyright, pushing its boundaries beyond its intent to suppress free expression.
Of course, artists should hopefully profit from their creations, and be protected from infringement. But copyright is a rare and potent power, a government granted monopoly to a private actor over speech. If not qualified with common sense exceptions, it can be exploited to do more than incentivize the creation of new works. It can be used to chill free speech.
There is obviously an inherent tension between copyright law and the First Amendment. With the right balance, copyright is an incentive for creativity in our society. It allows the work of an artist to inspire the work of others without denying the artist the rewards of his imagination and labor. But copyright law, with its lengthy term that extends seventy years after the death of the copyright holder, the severity of the penalties imposed for infringement and the ease with which injunctive relief can be secured, can create an imbalance between an artist’s copyright and the constitutional guarantees afforded us all.
The “fair use doctrine” is essential for copyright law by preventing the strict copyright enforcement regime from eroding the protections of the First Amendment. Fair use allows limited use of copyrighted material for academic, commentary, artistic and other purposes that respects the rights of the copyright holder and the value of their creation. The value to our society of this narrow, sensible and necessary exception is clear. We are a more innovative, better educated, prosperous, artistically accomplished, and freer country because of the fair use exception. Yet, Hollywood, especially the lobbying arm of the film industry, the MPAA, is constantly working in the shadows to further limit and even abolish fair use.
Typical of their campaign are their efforts to persuade government trade negotiators to drop the inclusion of fair use from intellectual property protections in trade agreements. They lobbied the Obama administration to dispense with fair use in the Trans-Pacific Partnership trade agreement. Now, they are actively working the Trump Administration to have fair use excluded from copyright protections in a renegotiated NAFTA.
What purpose is served by deliberately upsetting the critically important balance between copyright and free speech? Fair use doesn’t deny the artist’s right to profit from their work nor does it reward the infringement of their copyright. It merely allows others to reference the artist’s work to a very limited extent in order to express themselves, to educate, to seek truth, to create their own art, to protest, to comprehend the world and make it comprehensible to others.
The creative community needs to recognize all of this and fight for this careful balance between copyright holders and the right of all Americans to free speech, that guarantee a piece of American life so often celebrated and cherished in Hollywood’s creations. That’s something to remember at this year’s Oscars. As artists take pride in their contributions to the defense of the First Amendment, their industry lawyers and lobbyists shouldn’t expose them to charges of hypocrisy.