Not for Entertainment Only: Fair Use and Fiction as Social Commentary

Abstract

The borderland between the First Amendment and copyright law is known as fair use. Both the First Amendment and copyright law protect speech, though in different ways, and the underlying purpose of both is to ensure the widest range of public debate over the political, social, scientific, cultural, philosophical and historical issues that are important to understand in a functioning democracy. In general, the more factual the underlying work, the less protection it receives against infringement. The current view of fair use, however, protects fiction more that non-fiction. This means that a work of fiction that engages in social or political debate will end up with a greater degree of protection than a work of non-fiction that addresses the same topic. This seems to ignore the purported goal of the First Amendment. This Article argues that if authors present, discuss, or debate important public issues through fiction, there must be a way to ensure that those works are not unduly protected from subsequent use, criticism and commentary, even where that subsequent use takes the form of fiction. To do this, courts should assess whether or not there is an underlying political purpose to a work of fiction: the greater the political purpose, the more the work should be subject to widespread comment and criticism as allowed under the fair use doctrine; works of fiction that do not engage in commentary, in contrast, should retain the highest degree of protection from copying currently afforded by the copyright law. [ABSTRACT FROM AUTHOR]