In Smith v. California, a litigant argued that copyright and the right of free speech are fundamentally inconsistent, and that “[c]onsequently, either all copyright law is invalid as an unconstitutional impingement on the rights of Free Speech and Press …. or else any material that is copyrighted is thereby removed from the realm of Free Speech.” This absolutist approach has never been considered by courts. Courts have seldom delineated the respective claims of copyright and the first amendment.

This Note examines copyright and the first amendment as they relate to news reporting. It argues that this is a sensitive area where copyright protection may be sacrificed for a free press even when use of a copyrighted work is not protected by the fair use doctrine. This approach eradicates the chance of an exclusive right being conferred upon one reporting a historical event first, and enhances the freedom to acquire information in the news dissemination process so that the right to publish is compromised in only the most extreme circumstances.

Part I of the Note describes the public interest protection within the copyright statute for news reporting and emphasizes instances where the idea-expression dichotomy and the fair use doctrine are sufficient to safeguard the public interest. Part II discusses first amendment protection of a free press, balanced against copyright protection. It examines court decisions which balance free press and other nonspeech interests. Part III asserts that news reporting, distinguishable from other kinds of uses protected by fair use, is an area where copyright is more likely to be outweighed by the first amendment values of a free press.