Taming the Derivative Works Right: A Modest Proposal for Reducing Overbreadth and Vagueness in Copyright
The Supreme Court recently decided United States v. Stevens, a case challenging the constitutionality of a federal statute that punishes commercial depictions of animal cruelty, such as videos of dog fights. Concluding that the statute prohibited a good deal of speech that was unrelated to eradicating illegal animal cruelty, the Court held that the statute was substantially overbroad and therefore invalid under the First Amendment.
This case and other First Amendment cases help to shed light on the problems of overbreadth and vagueness in copyright law, particularly the derivative works right. The copyright holder's derivative works right prohibits others from making any work "based upon a copyrighted work" that "modifies, transforms, or adapts" the copyrighted work in any way. Because all new expression must necessarily borrow from existing expression to some degree, the derivative works right sweeps a good deal of speech within its prohibition. While the fair use doctrine purports to protect some of this new expression, fair use is vague and unpredictable in application, particularly when it intersects with the derivative works right.
This Article compares the Copyright Act to the dogfighting statute and other statutes to demonstrate considerable overbreadth and vagueness in the scope of the copyright protection. It argues for a narrowing interpretation of copyrights that will substantially mitigate these First Amendment concerns.