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Supreme Court Review

First Amendment Neglect in Supreme Court Intellectual Property Cases

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. Gold-
smith, 1 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, 2 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.

Full text not available in ChicagoUnbound.

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