Page:Sid & Marty Krofft Television Productions v. McDonald's Corporation.pdf/14

 "“It is argued that the law, construed as we have construed it, goes beyond the power conferred upon Congress by the Constitution, to secure to authors for a limited time the exclusive right to their writings. Art. I, § 8, cl. 8. It is suggested that to extend the copyright to a case like this is to extend it to the ideas, as distinguished from the words in which the ideas are clothed. But there is no attempt to make a monopoly of the ideas expressed. The law confines itself to a particular, cognate, and well-known form of reproduction. If to that extent a grant of monopoly is thought a proper way to secure the right to the writings, this court cannot say that Congress was wrong.” Id. at 63, 32 S.Ct. at 22."

The Court recognized that the protection of the copyright laws is necessary to provide an incentive for artistic creation which ultimately advances the public good. See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 45 L.Ed.2d 84 (1975).

But the impact, if any, of the first amendment on copyright has not been discussed by the Court. We believe this silence stems not from neglect but from the fact that the idea-expression dichotomy already serves to accommodate the competing interests of copyright and the first amendment. The “marketplace of ideas” is not limited by copyright because copyright is limited to protection of expression. As one commentator has stated: "“[T]he idea-expression line represents an acceptable definitional balance as between copyright and free speech interests. In some degree it encroaches upon freedom of speech in that it abridges the right to reproduce the ‘expression’ of others, but this is justified by the greater public good in the copyright encouragement of creative works. In some degree it encroaches upon the author’s right to control his work in that it renders his ‘ideas’ per se unprotectible, but this is justified by the greater public need for free access to ideas as part of the democratic dialogue.”"

Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 U.C.L.A.L.Rev. 1180, 1192–93 (1970). Cf. Lee v. Runge, 404 U.S. 887, 892–93, 92 S.Ct. 197, 30 L.Ed.2d 169 (1971) (Douglas, J., dissenting).

Ideas which may be of public interest are not subject to copyright; the specific form of expression of these ideas are. Thus, the political views of Dr. Martin Luther King may be widely disseminated. But the precise expression of these views in a speech may be protected. King v. Mister Maestro, Inc., 224 F.Supp. 101 (S.D.N.Y. 1963). See also Public Affairs Associates, Inc. v. Rickover, 177 F.Supp. 601 (D.D.C. 1960), rev’d, 109 U.S.App.D.C. 128, 284 F.2d 262 (1960), rev’d, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962), on remand, 268 F.Supp. 444 (D.D.C.1967); ''Atlantic Monthly Co. v. Post Pub. Co.'', 27 F.2d 556 (D.Mass.1928). Similarly, the facts about a historical figure are available to all to use. But if the expression of those facts in a biography is substantially copied infringement will be found. See, e. g., Toksvig v. Bruce Publishing Co., 181 F.2d 664 (7 Cir. 1950); Marvin Worth Productions v. Superior Films Corp., 319 F.Supp. 1269 (S.D.N.Y.1970); Holdredge v. Knight Publishing Corp., 214 F.Supp. 921 (C.D.Cal.1963).

With the law of copyright permitting the free use of ideas, it is not surprising that the few courts addressing the issue have not permitted defendants who copy a work’s expression to hide behind the first amendment. See, e. g., Duchess Music