What fair use provisions are covered by the constitution in the US?

Question

Here in New Zealand, there is a bill in parliament to amend the copyright act, to specifically allow parody and satire. I was reading the bill and one sentence confused me.

The purpose of this Bill is to introduce into New Zealand copyright law the authority to use a copyright work for the purpose of parody or satire, which brings New Zealand’s law in line with the laws of other developed countries, including Australia, the United States, Belgium, France, the Netherlands, Spain, and Germany.

Emphasis mine.

I was confused because as I understood it, in the US, parody and satire is covered and protected by fair use, which is not codified in law.

But I realized they were probably referring to the fact that the supreme Court in the US has affirmed that parody is free speech. It's thus, protected by the constitution.

But this is a paradigm shift. I've always heard about parody being discussed in relation to fair use, but if it's actually protected by the constitution, that's a much higher level of protection. Fair use isn't even a law, whereas the constitution is the highest law there is, it almost makes fair use irrelevant in this conversation.

That makes me wonder what other things generally regarded as fair use are actually covered by the constitution (via the courts). Comment and criticism seems like it would be just as fundamental to free speech as parody. How about academic use?

Answer 1

No, it actually is a codified law. See 17 USC 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Answer 2

First Amendment and the Protections of Parody and Satire.

The first amendment has typically been used to protect parody and satire as a form of protected speech. These have led to issues concerning libel, emotional distress and copyright infringement.

These rights of publicity claim, that the First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported by tabloids.”

These law concepts hold that parody and satire have a close relationship with the First Amendment jurisprudence and that the First Amendment provides strong protection for dissident voices pertaining to public officials and figures so long as they are not overtly “intrusive.”

The USA founding fathers held that public discourse on the functioning of the government was a core concept to a healthy democracy and that these 'dissident' opinions need not be fair or reasonable to be worth protecting.

While First Amendment almost urges for freedom of robust debate and discord over public concern, copyright creates a property interest in speech and expression, particularly as it pertains to the expressive works of public figures.

As a result, “copyright laws grant a copyright owner the right to suppress or abridge another person’s freedom of speech when that person seeks to express copyrighted material.”

The kicker is that copyright laws cannot be used to keep people from expressing dissident opinions in any ways that do not pertain to copyrighted material.

Answer 3

In short, there are no specific Fair Use provisions in the U.S. Constitution. The U.S. Constitution does grant Congress the power to create copyright law, but does not itself provide what the specifics of those laws may be. Specifically, the Article I, Section 8 just says, "The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Separately, the First Amendment to the Constitution protects freedom of speech.

'Fair Use' is specifically an exception to copyright law, codified in 17 USC 107, as littleadv's answer quotes. The First Amendment to the Constitution provides a general right to free speech. These are separate concepts that only sometimes overlap. Since the limits on federal government power specified in the Bill of Rights (which includes the First Amendment) are specifically intended to limit the extent of the enumerated powers of the government, in cases where protected speech and copyright law do overlap, the copyright law would need to be consistent with the First Amendment or else it would be invalid and unenforceable.

Satire may be First Amendment protected speech even when it involves no copyrighted works at all. Publications like The Onion or The Babylon Bee are full of such examples of satire that don't involve the modification or republication of anyone else's copyrighted works, for example, though plentiful examples of such works in the U.S. date back all the way to the colonial period.

Similarly, a parody of some copyrighted work may be allowed under the Fair Use exception to copyright law even if it does not involve any First Amendment concerns. For example, Weird Al Yankovic publishing a parody of some musician's song is allowed by the Fair Use exception to copyright law, but isn't necessarily First Amendment protected speech. (That is, if the Fair Use exception did not exist in copyright law, then copyright holders would most likely be able to legally prevent him from publishing parodies of their works in many cases. Granted, that doesn't really matter much in his specific case since he always gets permission anyway, though he does not legally need to.)

Of course, there are cases where the two concepts do overlap. For example, the images that changed Obama's 'Hope' campaign posters to say 'Nope' instead would be both protected free speech (political speech criticizing Obama) and also Fair Use of the copyrighted poster as parody. Though, since the First Amendment creates a Constitutional right to free speech, courts would most likely hold that copyright law could not be applied in such cases even if the Fair Use exception did not exist in codified law.