Brian L. Frye
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brianlfrye.bsky.social
Brian L. Frye
@brianlfrye.bsky.social

Dogecoin Professor of Law & Grifting. Securities artist & conceptual lawyer. Legal scholarship's #1 plagiarism apologist. Maybell Romero’s +1. https://linktr.ee/brianlfrye

Brian Lawrence Frye is an American independent filmmaker, artist, and law professor. His work includes Our Nixon, for which he served as a producer with his ex-wife, Penny Lane. His film Oona's Veil is included in the permanent collection of the Whitney Museum of Art, and his writings on film and art have appeared in The New Republic, Film Comment, Cineaste, Millennium Film Journal, and The Village Voice. Filmmaker Magazine listed him as one of the 25 New Faces of Independent Film 2012. He currently is the Spears-Gilbert Associate Professor of Law at the University of Kentucky College of Law, where he teaches courses on civil procedure, intellectual property, copyright, and nonprofit organizations. Frye is currently a visiting professor at Tulane University Law School where his spouse, Maybell Romero, is the McGlinchey Stafford Associate Professor of Law. He is a vocal critic of the bar exams and refers to his course on professional responsibility as "Managing the Legal Cartel". .. more

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Reposted by Brian L. Frye

@brianlfrye.bsky.social and I decided he had to get tea here

Associating a work with something new is pretty much the definition of giving it new meaning. I agree that copyright doctrine arguably says otherwise tho.

Ok. But this doesn’t have any of the features associated with commercial speech.

I’m oddly more sympathetic to blanket enforcement (usually to unring the bell of publication) than selective enforcement. Although I think privacy is a more fitting tool than copyright.

Take it up with the Supreme Court?

Agreed. But I’m troubled by (very) selective enforcement.

It’s political speech. They’re using the meaning of the work to amplify their expression. Unfortunately, it worked.

Yes. They want to suppress new meaning they disapprove. I don’t know what else we could possibly mean by “transformation.”

Fair. No expressive interest worthy of protection.

Do you think they were right? And to what extent was their conclusion colored by dislike of the speaker & speech?

There is very clearly an expressive interest in using works to say things the copyright owner disapproves.

I think those are both examples of a pretty clean reconciliation with the 1a. Defamation law says there’s no expressive interest in knowingly making false accusations. The commercial speech doctrine says there’s no expressive interest in fraudulent commercial speech.

I am all in favor of being honest about the conflict between copyright & the 1a. I am agnostic about the resolution. But they can’t be reconciled. We have to choose one or the other.

Nothing in the IP Clause requires copyright to exist at all. 🤷‍♂️ But the 1a isn’t extratextual & in any case, the better part of constitutional law is extratextual. The Court has always said copyright’s justification is economic. And it’s the easiest 1a fix as well.

Another great philosopher.

Or rather, to paraphrase Holmes, I pity the fool who thinks copyright has anything to do with art.

You should ask the copyright owner who objects to the use. Why are we talking about it, if it didn’t create new meaning?

I agree that for better or worse many artists & authors would like to use copyright to suppress speech they disapprove. They tend not to like it when others do the same tho.

Commercial v. non-commercial speech. The 1a cares less about who collects rents than it cares about who gets to speak & what they can say.

I’m not. I’m just observing that the 1a puts limits on the constitutional scope of copyright, as the Supreme Court has always recognized.

Yes, but the 1a problems with dilution by tarnishment are well-recognized & imo likely to get judicial attention in the near future.

Copyright can be censorship. It can also just be rent collection.

Meaning is enough. The reason the copyright owner objects is that they dislike the meaning, not because the royalties were inadequate. When copyright owners use copyright to suppress speech they disapprove, it’s a 1a issue, by its very nature.

The 1a & fair use allow critics to show clips for the same reason they allow quotations from texts: in order to enable effective criticism. There is no legitimate commercial interest in preventing the use & the risk of viewpoint discrimination is too obvious. Copyright is government action.

Yes. But as the court observed in Campbell, criticism affects the market (or can, anyway), but is a core fair use.

Yes, of course those are real & valuable economic interests. The question is whether & when we protect them, when they come into conflict with expressive speech rights. Copyright also doesn’t speak to them as much as TM does imo.

lol not insulting in the slightest. Self-described.

Yes. If you want copyright to protect non-economic interests, you have to wrestle with the 1a implications. Maybe you don’t think they’re a problem! But they are real.

Well, ok. You have a 1a right as against any copyright claim.

They are definitely “free riding” on meaning. But I think that’s true of all expressive speech. They aren’t free riding commercially.