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{
    "pk": 63022,
    "title": "Fair Comment: Restoring the Rightful Scope of Fair Use and Free Speech after <em>Elster</em> and <em>Warhol</em>",
    "subtitle": null,
    "abstract": "<p>Social criticism and self-expression are being suppressed under overbroad intellectual property regimes. The United States Supreme Court has had multiple opportunities to apply its precedents on common-law torts, statutory crimes, and administrative regulations to copyright, trademark, and the right of publicity, but it has failed to do so. Indeed, the Court has tripled down on a definitional or internal approach that virtually prohibits First Amendment scrutiny of injunctions or damages against infringing speech in copyright disputes.</p>\n<p>This Article explores how the Supreme Court has not carefully considered a constitutional right to engage in commentary in its intellectual property jurisprudence. Cases like <em>Harper &amp; Row</em>, <em>Campbell</em>, <em>Warhol</em>, <em>Jack Daniels</em>, and potentially <em>Elster</em> introduced a necessity test, which helps determine whether imitation of a protected work or personal name should be a free-speech right. Despite different fact patterns and legal theories, cutting across the copyright trademark divide, two of these cases involved First Amendment rights. <em>Harper &amp; Row</em> addressed whether reproduction of excerpts of a United States president’s memoirs or given name was truly necessary to a speaker’s message, and <em>Elster</em> alluded to whether alternative means of expression existed to the use of a former president’s name as the trademark of a t-shirt company. In cases involving commentary on works or brands not connected to public officials, a similar dynamic arose in <em>Campbell</em>, <em>Warhol</em>, and <em>Jack Daniels</em>. While <em>Warhol</em> did not reference free speech, it should have. A right of fair comment could have improved the rulings in each of these cases by focusing on speakers’ and listeners’ interests; the First Amendment’s drafting and intent; and doctrines of viewpoint and content discrimination, overbreadth, vagueness, and chilling effects.</p>\n<p>Fair comment is a familiar principle from libel and slander law and it has been expanded to right of privacy cases in the Supreme Court and to right of publicity cases in the state supreme courts and lower federal courts. One issue is how far designers, artists, sculptors, and brand managers—like those in <em>Warhol</em>, <em>Elster</em>, and <em>Jack Daniels</em>—may go in making fun of images, names, or designs that are iconic, heavily commodified, or even rare or banal. In a more complex statement, freedom of opinion needs to be preserved from strategic deployments of copyright or trademark rights against quite dissimilar art or designs that criticize, comment upon, or parody famous images, trademarks, or trade dress, in a manner that would not be very confusing. Just as fair comment in tort and state statutory cases permits taking some liberties with the reputations, created facts, and messages of other persons, fair comment in federal statutory cases could involve two connected inquiries: whether an alleged infringer knowingly or recklessly violated another’s rights, and whether the reasonably prudent consumer would be confused in trademark disputes or perceive the same “meaning” or “aesthetics” between two or more “works” in copyright ones. The function of these inquiries is to implement the First Amendment’s overbreadth protections against chilling effects, thereby ensuring a wide breathing space for cultural and social comment.</p>",
    "language": "eng",
    "license": {
        "name": "All rights reserved",
        "short_name": "Copyright",
        "text": "© the author(s). All rights reserved.",
        "url": "https://creativecommons.org/licenses/authors"
    },
    "keywords": [],
    "section": "Article",
    "is_remote": true,
    "remote_url": "https://escholarship.org/uc/item/9bn0j3mh",
    "frozenauthors": [
        {
            "first_name": "Hannibal",
            "middle_name": "",
            "last_name": "Travis",
            "name_suffix": "",
            "institution": "",
            "department": ""
        }
    ],
    "date_submitted": null,
    "date_accepted": null,
    "date_published": "2026-02-18T03:30:00+01:00",
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            "path": "https://journalpub.escholarship.org/uclalaw_elr/article/63022/galley/48677/download/"
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}