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It is clear that the Copyright Clause is meant to foster values enshrined in the First Amendment.[1] The Clause's primary purpose is to provide authors with incentives to produce works that will benefit the public.[2]

In Eldred v. Ashcroft,[3] the connection between the First Amendment and copyright prompted the [[U.S. Supreme Court] to reject the proposition that "copyrights [are] categorically immune from challenges under the First Amendment."[4] However, under the facts of Eldred, copyright's inherent free speech protections obviated any need for First Amendment review of the Copyright Term Extension Act (CTEA).

The Court based this holding on three factors. First, the Court concluded that copyright law's "built-in First Amendment accommodations" — the idea/expression dichotomy and fair use defense — adequately protected the First Amendment interests at stake.[5] Second, the Court reasoned that the plaintiffs had only a trivial interest in the copyrighted works because "[t]he First Amendment securely protects the freedom to make — or decline to make — one's own speech; it bears less heavily when speakers assert the right to make other people's speeches."[6] Finally, the Court noted that the CTEA provided supplemental protections to ensure that the Act did not diminish the public's access to protected expression.[7] The Court further indicated that legislation could be subject to First Amendment scrutiny if it "altered the traditional contours of copyright protection."[8]


  1. See Harper & Row, Publishers, Inc. v. National Enters., 471 U.S. 539, 558 (1985) (observing that "the Framers intended copyright itself to be the engine of free expression").
  2. See id. at 546 ("The monopoly created by copyright thus rewards the individual author in order to benefit the public.") (internal quotation marks omitted) (emphasis supplied); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) ("The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.") (emphasis supplied); Mazer v. Stein, 347 U.S. 201, 219 (1954) ("The economic philosophy behind the clause empowering Congress to grant [ ] copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors . . . in '. . . [the] useful Arts.'"); Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) ("The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.").
  3. 537 U.S. 186 (2003).
  4. Id. at 221 (internal quotation marks omitted).
  5. Id. at 219.
  6. Id. at 221 (emphasis supplied).
  7. Id. at 220.
  8. Id. at 221.