Farewell Madison Avenue
Hamilton, Marci A., Constitutional Commentary
The myth is that the First Amendment constructs the marketplace of ideas and expression.(1) Standing behind the Supreme Court's free speech jurisprudence like the shadow behind Alfred Hitchcock (always there and always substantial),(2) though, are the Court's copyright decisions. They have done more to affect the marketplace than the free speech decisions,(3) which, if one becomes very serious about the jurisprudence, actually chart the ways in which government is at liberty to suppress speech. The momentous copyright decision that ought to be erased is Justice Holmes' Bleistein v. Donaldson Lithographing Co.,(4) a decision, I realize, few constitutional law scholars have read. They should.
In Bleistein, the Court addressed what might seem like a mundane question to us today: whether a circus poster is covered by the copyright statute. The Court said, "Yes," and now bears the blame for turning Madison Avenue into a superpower, for million-dollar Super Bowl commercials with frog superstars, and for the mess some refer to as the Global Information Infrastructure (or, if they are feeling really smart and want to impress someone, the "GII").(5) Bubbling underneath the decision (in the briefs) was a debate the Court elided to our detriment. The parties debated whether the Constitution's Copyright Clause, which appears in Article I, clause 8, section 8, could cover a mere advertisement. The poster creator (predictably) argued that posters are creative enough to be copyrightable while the poster users (predictably) argued that the posters were merely functional, and therefore couldn't be copyrightable. Justice Holmes "dealt" with the constitutional arguments as follows:
We shall do no more than mention the suggestion that painting and engraving unless for a mechanical end are not among the useful arts, the progress of which Congress is empowered by the Constitution to promote. The Constitution does not limit the useful to that which satisfies immediate bodily needs.(6)
Nice try, but the "useful arts" term mentioned in the Copyright Clause is referring to inventions, not writings, and nobody has ever argued that "bodily needs" have anything whatsoever to do with copyrightability. The dissent was much more on target when it said that the poster had "no other use than that of a mere advertisement, and no value aside from this function, [and therefore] it would not be promotive of the useful arts, within the meaning of the constitutional provision."(7)
The real question in the case was whether writings that are more functional than not can be protected under the Constitution and therefore those who own them can sue others who copy them. By winging the question, the Court opened the door to copyright protection for a mind-numbing list of what we now call "cultural" products and accordingly hang or display in our living rooms, for example, posters of Valvoline, Vaseline, and airplanes, not to mention B movies. It set the stage for the Court's meandering commercial speech doctrine, with its assumption that advertising speech is valuable speech. It also ensured that Madison Avenue would become a magnet for wealth, capable of charging a company that actually contributes products to the economy millions of dollars for taking pictures of those products. So, let's erase it (or at least flip it so the Bleistein dissent becomes the majority).
It is 1903, and there is no copyright protection in advertisements because they are functional, not art. First, Madison Avenue remains the name of a thoroughfare in New York, never becoming an insiders' nickname for the advertising industry and its "admen." Without the river of money being poured into Madison Avenue, imagemakers do not become kingmakers. Political campaigns are not taken over by advertising but rather remain mildly boring but informative. People like Abraham Lincoln, unphotogenic and humble with nary a clue about managing their "image," continue to have a chance at being President. …