For anyone remotely interested in intellectual property law, and more particularly copyright law, I want to commend to your attention a very important amicus brief just filed in the Supreme Court by Curt Levy and the Committee for Justice. The brief opposes what it characterizes (rightly in my view) as a radical interpretation of the fair use doctrine by the Andy Warhol Foundation for the Visual Arts.
In the context of explaining why the Warhol Foundation's unduly expansive interpretation of the fair use doctrine should be rejected, the Committee for Justice's brief states: "Copyright protections serve to vindicate the fundamental civil right that authors have to the fruits of their labors. This is how the Founders understood it at the time they enacted the Constitution with its Copyright Clause, and this is how this Court has understood it ever since." According to the brief, the Warhol Foundation "wants to change this accepted understanding of the Copyright Clause by replacing it with a utilitarian-based regime…."
The resort by the Committee for Justice's brief to foundational "first principles" regarding the proper interpretation of the Copyright Clause is in all respects consistent with the views articulated by me and Free State Foundation Director of Policy Studies Seth Cooper in our book, "The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective." Indeed, I am pleased that our book was cited as an authority in Committee's brief alongside these "other authorities" – James Kent, William Blackstone, John Locke, Adam Mossoff, Antonin Scalia, Joseph Story, and Federalist No. 43! I would not be so coy as to deny that I am honored and proud to be listed among such illustrious company, and I'm sure Seth fees the same way.
Again, for anyone with an interest in copyright law, and especially anyone with an interest in understanding why the Founders' included the Copyright Clause in the Constitution of 1787, I heartily commend to you the Committee for Justice's excellent amicus brief. And if you want to delve more deeply, well… I commend our book, "The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective." It's still a bargain.
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