By Annie Weiler
Copyright has a strange relationship with the First Amendment.[1] They have similar origins—most notably, the United States Constitution[2] and decades of jurisprudence[3]—and seem to have the same goals, specifically disseminating “more, better, and more diverse” expressive works.[4] In theory, those similarities cast copyright and the First Amendment as partners—different sides of the same coin—in the broader project of artistic protection.[5]
The Supreme Court largely agrees, often painting the two mechanisms as symbiotic.[6] In fact, it regularly waxes poetic about copyright as the “engine of free expression,”[7] fueling the economic incentives for speech essential to the First Amendment’s operation.[8] Apparently, if the two doctrines are aligned in purpose, then conflict between them shouldn’t really exist.[9]
But that framing is both overtly superficial and blatantly romanticized. The First Amendment, as enshrined in the Bill of Rights, limits government action that restricts speech.[10] Copyright, by contrast, is Congress’s brainchild, effectively restricting speech by prohibiting the use of certain words, images, and expressive elements.[11] In other words, there is an inherent structural tension between the two: the First Amendment protects expression, and copyright regulates it. They’re not parallel mechanisms tag-teaming artistic expression; instead, they’re adversaries, inherently at odds.
Nowhere is that structural difference more apparent than in the Court’s treatment of the fair use doctrine, Congress’s safety valve that allows non-copyright holders to use protected works for limited purposes.[12] Fair use provides a four-factor balancing test to determine permissible uses of copyrighted works: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use on the original’s potential market for or value.[13] It creates a copyright monopoly, giving rights holders control over who gets to access and reuse their works and on what terms.[14]
According to the Court, fair use is effectively the First Amendment and copyright’s lovechild.[15] But that isn’t really accurate. Despite the fair use doctrine’s impressively convoluted statutory history,[16] lawmakers forgot to grapple with—or, at least, integrate—the First Amendment. That omission doesn’t make fair use per se unconstitutional,[17] but it did create a doctrine poorly equipped to recognize—let alone resolve or even mitigate—First Amendment concerns.
In practice, a poorly equipped fair use means that it ignores the First Amendment’s policy implications. Generally, in a First Amendment analysis, speech that deals with a matter of public concern—generally about a subject of general interest and of value and concern to the public, regardless of its inappropriate or controversial nature—deserves special protection.[18] This is a high bar. Mere “personal interest” isn’t public concern[19]—rather, the speech must involve information necessary or appropriate to help the public make educated decisions about their government’s operations.[20]
But “public concern” is conspicuously absent from the fair use factors.[21]So when, exactly, is a court supposed to consider that policy interest? Suppose an expression necessarily requires[22] another one to communicate a matter of public concern.[23] In a fair use evaluation, a court may never substantively ask whether that unauthorized use promotes transparency or public accountability.[24]
The closest it may come is by applying the first, notoriously vague factor: purpose and character.[25] Nested within that factor is transformative use, a judicially created concept asking whether the derivative work “alter[s] the first with new expression, meaning, or message.”[26] While “scholarship, research, or education” uses may be transformative—while those certainly integrate some flavor of public concern—transformation is only one consideration within this factor, which itself is just one piece of a larger four-factor analysis.[27] And courts applying that factor rarely grapple with public concern in any meaningful sense, instead fixating on a far narrower distinction—whether the use is commercial or nonprofit.
Nor is public interest meaningfully housed in the other three factors. The nature of the copyrighted work looks only to the characteristics of the source material, not the social value of its use.[28] Social value certainly cannot be found in the amount and substantiality factor—if the “heart” of the work is precisely what the public has reason to see, that factor automatically cuts against the defendant.[29] And social value is least at home in the final factor, which asks almost exclusively whether the copyright holder has been deprived of licensing revenue.[30]
In other words, the doctrine has no obvious place for public interest to land and substantively mean something. The few available options relegate it to a doctrinal corner and subordinate it to broader statutory concerns. Any statutory scheme that so neatly sidesteps the First Amendment is, at best, uncomfortable. At worst, it should reallyconcern anyone even mildly fond of the Constitution.
As such, the most pragmatic solution is to bring the First Amendment explicitly to the forefront of the fair use doctrine, whether by treating it as a categorical rule—such that these uses are presumptively fair—or by making it a substantial factor within the statutory test.
Of course, First Amendment interests would operate as a limiting principle only in a narrow but critical set of cases. A strong public concern could exist as a matter of law where a speaker has a compelling need to use the expression itself—because paraphrasing, describing, or summarizing would be inadequate—and where no reasonable alternative for obtaining consent exists. Kept within these bounds, the First Amendment wouldn’t systemically dismantle copyright by licensing wholesale appropriation or eliminating profit incentives. Rather, it would acknowledge what fair use doctrine struggles to do on its own: protect speech that is too important to leave to an imprecise balancing test.
Fair use is considered to be copyright’s wholesale First Amendment “accommodation,”[31] but accommodation isn’t the same as protection. As it stands, fair use provides no clear doctrinal home for public concern, one of the First Amendment’s lodestar principles and the category of speech afforded the highest protection. Without it, courts applying the fair use doctrine can merely gesture at free speech interests without squarely confronting them. Explicitly integrating public concern into fair use would acknowledge a narrow but critical reality: some speech needs copyrighted expressions to engage in matters of public concern, and fair use alone is poorly equipped to effectuate that.
Copyright doesn’t need to be—and certainly shouldn’t be—hostile to free expression. But when fair use hesitates to protect speech that would be protected under a free speech analysis, the First Amendment shouldn’t be treated as an afterthought. It should serve as the limiting principle that fair use, on its own terms, hasn’t managed to be.
[1] Enormous gratitude to Greyson Cox, J.D. Candidate at the University of Maryland, for his encouragement, careful proofreading, and insightful feedback. Only an exceptional friend would review my blog post over his winter break.
[2] See U.S. Const. art. I, § 8, cl. 8; U.S. Const. amend. I.
[3] See, e.g., Copyrights Supreme Court Cases, Justia, https://supreme.justia.com/cases-by-topic/copyrights/ (last visited Dec. 18, 2025) (listing some of the Court’s cases involving copyright); Notable First Amendment Court Cases, Am. Libr. Ass’n (May 2017), https://www.ala.org/advocacy/intfreedom/censorship/courtcases (compiling frequently cited First Amendment cases).
[4] Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies?, 67 Wash. & Lee L. Rev. 831, 831 (2010).
[5] See Eldred v. Ashcroft, 537 U.S. 186, 219 (2003) (“[C]opyright’s limited monopolies are compatible with free speech principles.”).
[6] See, e.g., id. at 219–20; Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985).
[7] Harper & Row, 471 U.S. at 558.
[8] Golan v. Holder, 565 U.S. 302, 328 (2012) (“[T]he Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used. . . . By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” (internal quotation marks omitted)); see also 303 Creative LLC v. Elenis, 600 U.S. 570, 600 (2023) (“[T]he First Amendment extends to all persons engaged in expressive conduct, including those who seek profit (such as speechwriters, artists, and website designers).”).
[9] It seems the framers agreed with this. See Matthew D. Bunker, Adventures in the Copyright Zone: The Puzzling Absence of Independent First Amendment Defenses in Contemporary Copyright Disputes, 14 Comm. L. & Pol’y 273, 279 (2009); but see L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vand. L. Rev. 1, 13 (1987) (“[T]here is little direct evidence of the framers’ intention concerning the relationship between the [copyright] clause and free speech concerns.”).
[10] See U.S. Const. amend. I.
[11] See 17 U.S.C. § 102 (providing the statutory basis for copyright’s subject matter).
[12] See 17 U.S.C. § 107 (outlining the statutory basis for the fair use doctrine).
[13] Id.
[14] Patterson, supra note 9, at 3.
[15] See, e.g., Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003) (characterizing fair use as one of copyright law’s “built-in First Amendment accommodations”); Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985) (characterizing fair use as a “First Amendment protection[] already embodied in the Copyright Act[]”).
[16] For more information on this background, see Patterson, supra note 9, at 2–13 (detailing the history of constitutional safeguards in statutory copyright laws).
[17] Not according to the Court, at least. See Golan v. Holder, 565 U.S. 302, 328 (2012) (affirming fair use’s constitutionality).
[18] Snyder v. Phelps, 562 U.S. 443, 458 (2011)
[19] Connick v. Meyers, 461 U.S. 138, 147 (1983).
[20] See, e.g., Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 898 (6th Cir. 2001).
[21] Snyder, 562 U.S. at 453 (noting that whether speech is of “public concern”—defined by whether it relates to any matter of political, social, or other concern—is dispositive in First Amendment litigation); Connick, 461 U.S. at 145 (“[T]he Court has frequently reaffirmed that speech on public issues occupies the highest rung of . . . First Amendment values, and is entitled to special protection.” (internal quotation marks omitted)).
[22] Whether a derivative work “requires” the original is a separate question. The Court has not delineated when an expression requires the original, though it has noted that “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580–81 (1994). Thus, “require” may mean that using the original is necessary to accomplish the derivative work’s goals.
[23] Note that this is different from mere public interest. See, e.g.,Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197, 1204, 1222 (C.D. Cal. 2007) (finding that uploading entire songs to the internet without the copyright holder’s permission violates copyright law, even if receiving entertainment serves a clear public interest). Matters of “public concern” are specific issues or topics of legitimate interest to the community, while matters of public interest are issues, actions, or information that, among other things, may benefit the community or society.
[24] See, e.g., Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 284 (1977) (finding public concern in teacher’s rhetoric while sharing a principal’s internal memo); Decotiis v. Whittemore, 635 F.3d 22, 30 (1st Cir. 2011) (finding public concern where defendant urged parents to contact advocacy groups to obtain legally-entitled speech and language services); Piver v. Pender Cnty. Bd. of Educ., 835 F.2d 1076, 1080 (4th Cir. 1987) (finding public concern where a teacher discussed the high school principal’s performance); O’Laughlin v. Palm Beach Cnty., 30 F.4th 1045, 1051 (11th Cir. 2022) (finding public concern where firefighters described their union’s internal corruption).
[25] Ashten Kimbrough, Transformative Use vs. Market Impact: Why the Fourth Fair Use Factor Should Not Be Supplanted by Transformative Use as the Most Important Element in a Fair Use Analysis, 63 Ala. L. Rev. 625, 635 (2012) (“[Transformativeness] is still not applied consistently, and there are no clear guidelines. It makes little sense for a confusing doctrine to be the most significant finding in any sort of court analysis.”).
[26] Campbell, 510 U.S. at 579.
[27] Measuring Fair Use: The Four Factors, Stan. Copyright & Fair Use, https://fairuse.stanford.edu/overview/fair-use/four-factors/ (last visited Dec. 21, 2025).
[28] See Campbell, 510 U.S. at 586.
[29] See id. at 586–87.
[30] Sara K. Stadler, Copyright as Trade Regulation, 155 U. Pa. L. Rev. 899, 903–05 (2007).
[31] See Ass’n of Corp. Couns., Copyright Fair Use 4–5 (2017) (internal quotation marks omitted).