The Lost Language of the First Amendment in Copyright Fair Use: A Semiotic Perspective of the “Transformative Use” Doctrine Twenty-Five Years On

Fordham Intellectual Property, Media and Entertainment Law Journal Volume 26 Volume XXVI Number 2 Volume XXVI Book 2 Article 1 2016 The Lost Language of the First Amendment in Copyright Fair Use: A Semiotic Perspective of the “Transformative Use” Doctrine Twenty-Five Years On David Tan National University of Singapore Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Intellectual Property Law Commons Recommended Citation David Tan, The Lost Language of the First Amendment in Copyright Fair Use: A Semiotic Perspective of the “Transformative Use” Doctrine Twenty-Five Years On, 26 Fordham Intell. Prop. Media & Ent. L.J. 311 (2016). Available at: https://ir.lawnet.fordham.edu/iplj/vol26/iss2/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact . The Lost Language of the First Amendment in Copyright Fair Use: A Semiotic Perspective of the “Transformative Use” Doctrine Twenty-Five Years On Cover Page Footnote PhD (Melbourne); LLM (Harvard); LLB BCom (Melbourne). Vice Dean (Academic Affairs), Associate Professor, Faculty of Law, National University of Singapore. I would like to thank Professors Rochelle Cooper Dreyfuss, Graeme Dinwoodie, and Graeme Austin for their comments on an earlier draft presented at the Framing Intellectual Property Law in the 21st Century conference in Singapore, and Kenneth Wang Ye and Benjamin Foo for their research assistance. This article is available in Fordham Intellectual Property, Media and Entertainment Law Journal: https://ir.lawnet.fordham.edu/iplj/ vol26/iss2/1 The Lost Language of the First Amendment in Copyright Fair Use: A Semiotic Perspective of the “Transformative Use” Doctrine Twenty-Five Years On David Tan* It has been twenty-five years since Judge Pierre Leval published his iconic article, “Toward a Fair Use Standard,” urging that courts adopt a new guiding principle of “transformative use” to determine whether an unauthorized secondary use of a copyrighted work is fair. The Supreme Court’s emphatic endorsement of this approach in 1994 has resulted in a remarkable judicial expansion of the transformative use doctrine which today covers virtually any “creation of new information, new aesthetics, new insights and understandings.” While the Supreme Court reiterated in Golan v. Holder in 2012 that the fair use defense is one of copyright law’s key “built-in First Amendment accommodations,” the influence of the First Amendment on the transformative use doctrine remains largely unexplored over the years. This Article analyzes how the different theoretical underpinnings of the First Amendment and certain categories of First Amendment-protected speech have been accommodated within the transformative use doctrine, and shows how the First Amendment has been—and will continue to be—the invisible hand that shapes the development of copyright law. It also addresses the unre* PhD (Melbourne); LLM (Harvard); LLB BCom (Melbourne). Vice Dean (Academic Affairs), Associate Professor, Faculty of Law, National University of Singapore. I would like to thank Professors Rochelle Cooper Dreyfuss, Graeme Dinwoodie, and Graeme Austin for their comments on an earlier draft presented at the Framing Intellectual Property Law in the 21st Century conference in Singapore, and Kenneth Wang Ye and Benjamin Foo for their research assistance. 311 312 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVI:311 lenting frustration in assessing transformative use and urges a consideration for assistance from a semiotic perspective of the First Amendment to illuminate what really are cultural contestations of semiotic signs masquerading as copyright disputes. INTRODUCTION........................................................................ 312 I. PIERRE LEVAL’S TRANSFORMATIVE USE DOCTRINE—THEN & NOW ................................... 318 A. Pierre Leval’s Transformative Use Doctrine in 1990....................................................................... 319 B. The Supreme Court’s Endorsement of Transformative Use in 1994 .................................... 321 C. The Ascendancy of Transformative Use from 1994– 2015 ....................................................................... 326 II. THE FIRST AMENDMENT AND COPYRIGHT ......... 336 A. Goals and Theories of the First Amendment .............. 337 1. Discovery of Truth/Marketplace of Ideas ...... 338 2. Self-fulfillment Function/Individual Autonomy....................................................... 340 3. Participatory Democracy & Distrust of Government ................................................... 341 B. Infringing Works Can Also Be Expressive Works ...... 344 III. REDISCOVERING THE LOST FIRST AMENDMENT WITHIN TRANSFORMATIVE USE .. 353 A. Copyright and the Issue of Its First Amendment Immunity ............................................................... 353 B. The “Work” as a Semiotic Sign .............................. 358 C. Advancing First Amendment Goals Through Semiotic Transformation ......................................... 366 CONCLUSION ............................................................................ 378 INTRODUCTION First Amendment jurisprudence is replete with symbolic expression that qualifies for constitutional protection. The Supreme Court has explicitly acknowledged that burning the American flag 2016] LOST LANGUAGE OF THE FIRST AMENDMENT 313 can be construed as a legitimate form of political protest,1 and placing a burning cross on the fenced yard of a black family connotes “virulent notions of racial supremacy” but is nonetheless a protected expression of particular ideas.2 However, in a copyright dispute, while spray-painting a red cross over the image of a screaming face in a music video was seen to convey a critical message about the hypocrisy of religion, there was no mention of the First Amendment.3 Similarly, replacing the romantic lyrics of “Oh, Pretty Woman” with tawdry ones was perceived to be a “comment on the naiveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies,”4 but there was no reference to its contribution to the marketplace of ideas.5 In 2014, the Supreme Court in McCullen v. Coakley reiterated that the primary purpose of the First Amendment is “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”6 In the same year, the Court also highlighted in McCutcheon v. Federal Election Commission that there is “no right more basic in our democracy than the right to participate in electing our political leaders”7 and that the “First Amendment safeguards an individual’s right to par (...truncated)