ABSTRACT
Social criticism and self-expression are being suppressed under overbroad intellectual property regimes. The US 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.
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 Harper & Row, Campbell, Warhol, Jack Daniels, and potentially Elster 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. Harper & Row addressed whether reproduction of excerpts of a US president’s memoirs or given name was truly necessary to a speaker’s message, and Elster 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 Campbell, Warhol, and Jack Daniels. While Warhol 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. The Article broadens the concept of fair use beyond strictly necessary uses for targeted criticism and challenges the prevalence of content discrimination and overbreadth in trademark decisions. It surveys First Amendment caselaw, the legislative and judicial history of fair use, and the text of the Lanham Act.
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 Warhol, Elster, and Jack Daniels – may go in making fun of images, names, or designs that are iconic, heavily commodified, or even rare or banal. Freedom of opinion needs to be preserved from strategic deployments of copyright or trademark rights against a quite dissimilar artwork or design that criticizes, comments upon, satirizes, or parodies famous images, trademarks, or trade dress. Just as it does in tort and state statutory cases, fair comment in copyright and trademark disputes could justify taking liberties with the creative output, created facts, and messages of other persons, whether or not the aim of the commenter is to criticize or parody the initial speaker.
Travis, Hannibal, Fair Comment: Restoring the Rightful Scope of Fair Use and Free Speech after Warhol and Elster (December 10, 2025), Florida International University Legal Studies Research Paper Forthcoming; UCLA Entertainment Law Review, 33 (2025).
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