First Amendment Values in Fair Use Analysis

Abstract

This monograph examines the status of the fair use doctrine as a “First Amendment safeguard” used to maintain the proper constitutional balance between authors' rights and public access to creative works. In particular, it examines the role that First Amendment values have played in the courts' analysis of fair use cases since enactment of the 1976 Copyright Act, focusing on a subset of cases involving secondary uses of copyrighted material of the types of speech that would receive greater protection under traditional First Amendment analysis. Cases involving fair use disputes over news reporting and comment and criticism, including political speech and parody, are examined in order to determine the underlying purpose of fair use and its role in preserving First Amendment values within the copyright system.