An inherent tension exists in the U.S. Constitution between copyright protection and the freedom of the press. Article I, Section 8 authorizes the former and the First Amendment guarantees the later.
When the right of a free press to disseminate information confronts a copyright owner’s exclusive right to exercise monopoly control over the dissemination of a protected work, courts face difficult choices. For example, do Abraham Zapruder’s 8-millimeter home movie pictures depicting the assassination of President John F. Kennedy constitute information, expression or both? Could a member of Congress invoke copyright law to prevent journalists from disseminating inadvertently tweeted embarrassing photographs? Could modern copyright law be invoked to censor publication of images such as those depicting the My Lai massacre or the abuse of detainees at Abu Ghraib?
The California State Bar's Intellectual Property section just published my article on the subject, When Copyright Law and the Freedom of the Press Collide: Does the First Amendment Deserve an Independent Analysis? It is available here.
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