First
Amendment Neglect in Supreme Court Intellectual Property Cases

Mark A. Lemley & Rebecca Tushnet (forthcoming, Supreme
Court Review)

Abstract

The Supreme Court decided two cases of central importance to free speech during the 2022 term – in both cases without
addressing the First Amendment implications. In Andy Warhol Foundation
v. Goldsmith, the Court upheld a ruling that Andy Warhol’s
reworkings of Lynn Goldsmith’s photograph of the artist Prince into highly
stylized silkscreens and drawings were not transformative, and thus
were unfair, at least when images of the artworks were licensed
to illustrate articles about Prince. In Jack Daniel’s v. VIP
Products, the court found that a parody dog toy in the general shape
of a Jack Daniel’s bottle, with the label “Bad Spaniels,” deserved no
special protection for its parody against Jack Daniel’s trademark
claim. The Court reached these results using ideas about the lesser
status of profitable speech that it flatly rejected in other cases the
same term, and with rationales that seem directly at odds with
its First Amendment jurisprudence.

 In this article, we show that the Court’s decisions cannot be reconciled with its approach to any other area of speech,
and that they are already having pernicious effects in the lower
courts. We consider some possible explanations for the inconsistency:
the possibility that the Court just doesn’t see First Amendment
issues in IP cases; the possibility that a political realignment has
left conservative justices less enchanted with speech in the
marketplace; and the possibility that this is part of a broader trend
away from holding courts to the same constitutional standard as the
other branches of government, combined with statutes that leave
room for substantial judicial discretion in individual cases.
Whatever the explanation or explanations, the decisions in Warhol and
Jack Daniel’s to cut back dramatically on judicially-created
speech-protective rules may have the ironic effect of forcing the Court to confront
directly the constitutional fragility of much modern IP law.

from Blogger http://tushnet.blogspot.com/2024/01/new-article-wmark-lemley-first.html