The Substantive Due Process Turn: Identity-Based Uses of Copyrighted Works

Jennifer E. Rothman - Loyola Law School

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The dominant theoretical frame for conceptualizing uses of copyrighted works is the First Amendment’s protection for free speech.  Despite numerous calls for greater First Amendment scrutiny in copyright cases, there has been an almost unrelenting rejection of independent First Amendment review in copyright cases.  Even when free speech values are considered within the context of built-in copyright doctrines (such as fair use), uses justified by personal, rather than political or cultural, reasons are held infringing.

In this essay, based on my article, Liberating Copyright: Thinking Beyond Free Speech, I consider the value of an alternative theory for thinking about uses of copyrighted works.  The alternative paradigm that I propose is grounded in our understanding of the “liberty” protected by the Fifth and Fourteenth Amendments.  The liberty lens that I propose provides a compelling foundation for uses by individuals that are integral to those individuals’ identities.  In particular, I consider uses essential to mental integrity, intimacy, communication, and religious practice.  In such instances the ability of an individual to use a copyrighted work rises to the level of a fundamental right deserving of robust protection from state interference.  Accordingly, such uses should be permitted without requiring payment or permission and without regard to whether such uses are made in public or for profit.  This liberty-based paradigm suggests that the scope of copyright should be limited to take into consideration identity-based uses—copyright is a government-created privilege, and it is therefore imminently appropriate to debate its contours.  A liberty-based substantive due process approach can limit the impact of copyright in specific cases either as a separate defense or by infusing doctrines such as fair use with more consideration of the value of copyrighted works to individuals.

Although the Supreme Court has concluded in the context of copyright law that the First Amendment does not bear heavily on the “right to make other people’s speeches,”1 a liberty analysis demonstrates that one should have a right to use someone else’s copyrighted work to express one’s own lived experiences.  Such an approach is justified not by the furtherance of a political, democratic dialogue (the most common First Amendment approach in copyright cases), nor even by broad speech-based rights of self-expression, but instead as a fundamental and specific component of who one is.  The liberty approach also avoids the problem of copyright law being viewed as the “engine of free expression.”2 Under a liberty approach, we do not compare speech with speech, and then ask which speech is more valuable or which speech is more likely to generate the most speech overall.  Instead, the liberty interests of users must be balanced against the liberty interests of others—in particular, copyright holders and authors.  When the privileged categories of identity-based uses are at issue, the liberty rights of users will usually outweigh those of copyright holders and creators.

In this essay, I focus on one piece of my larger argument—the point that identity-based uses of copyrighted works overlap in important ways with our understanding of protections for individual rights under the substantive due process clause.

The Constitutive Function of Copyrighted Works and Identity-Based Values in Substantive Due Process

Identity at its heart revolves around our sense of self and our ability to define and situate ourselves in the world around us; it includes our understanding of ourselves both individually and in the context of broader socio-cultural groups to which we belong.  At a minimum, our identity is composed of our life history, important life-changing or psychologically-altering experiences, and our beliefs and values.  Each person’s life, both past and present, is not only intertwined with copyrighted materials, but also constructed by these copyrighted works.  Our memories, life experiences, and cultural and religious ties are often bound up with copyrighted works.

The promotion of “identity,” “personhood,” and “autonomy of self” have long been recognized as constitutional interests protected by the “liberty” of the substantive due process clause.3 One of the main goals of substantive due process is to provide space for individuals to construct their own identities—for example, by protecting choices about when and how to become a parent, child-rearing, whom to marry, with whom to live and designate as family, and with whom one can form intimate or sexual relationships.  Substantive due process rights also extend to the “right of the individual to contract, to engage in any of the common occupations of life, [or] to acquire useful knowledge.”4 The substantive due process cases in which individual liberties have prevailed over competing government or other interests provide an illuminating avenue for conceptualizing when uses of copyrighted works should be considered more or less fundamental to an individual. 

Privileged Uses under a Liberty-Based Theory

Copyright law should be limited when it interferes with the sacred space constitutionally reserved for individuals to define and construct themselves.  In particular, uses of copyrighted works that are necessary for mental integrity, communication, the development and sustenance of emotionally intimate relations, or the practice of one’s religion are all at the core of our identities.  My claim here is not that copyrighted works are always fundamental to an individual’s identity, but that when they are, courts and the copyright system should give greater latitude for such uses.  As uses move away from identity-based uses, they will increasingly be less compelling when weighed against the competing interests of copyright holders, creators, and broader calculations of the public interest.

Category 1: Descriptive Uses and the Right to Mental Integrity

Just as substantive due process has long protected “bodily integrity,”5 it also protects mental integrity.  A key component of mental integrity is being free to refer to one’s own life experiences and the realities of the external world.  Often doing so requires explicit reference to and use of copyrighted works.  Accordingly, a right to mental integrity requires that some latitude be given to use copyrighted works to describe our experiences and the world itself.

Consider a woman who plays Journey’s “Don’t Stop Believin’” on a loop on her publicly accessible blog attached to an entry that describes her experience of being raped.  The Journey song had been playing on the car stereo while she was assaulted.  Her blog entry describing her traumatic experience and the playing of the music in conjunction with the text is part of her coping process.  Suppose the band objects to her public performance and copying (to a digital format) of its copyrighted composition, lyrics, and performance.  Under current copyright law, she could be found liable for copyright infringement, particularly given the use of the entire song (repeatedly), and liability would be even more likely if she sold advertising space on her blog (a common funding mechanism for blogs).  The blogger’s use would, however, be protected by the proposed liberty framework—she is describing and engaging with her own lived experiences, experiences that incorporate copyrighted works.  To prevent such documentation would seriously disrupt her mental integrity.

Nor should she be limited only to sharing her blog entry with close friends or those previously known to her.  Mental integrity is not simply about keeping the contents of our minds free from state intrusion, but also requires the ability to express the content of our minds to others.  Without the ability to externalize one’s experiences, one cannot develop into one’s own person nor establish meaningful relations to others.  Substantive due process cases provide support for this broader, public reading of liberty—freedom means much more than the freedom to do what one wants in private.  Cases involving marital relations and contraceptives, for example, are not just about sex behind closed doors, but are also about state recognition of relationships, public sale and purchase of contraceptives, sex education, and interactions with the community at large as a social unit.

Many copyrighted works other than musical ones become intertwined with our lives.  Consider the use of personal letters.  Copyright law has often been asserted to prevent the publication of personal letters in biographical works.  In Sinkler v. Goldsmith,6for example, Lorraine Sinkler sought a declaratory judgment that she could publish letters that she had received from Joel Goldsmith, the founder of a new age spiritual/religious movement.  At the time of the lawsuit, Goldsmith was dead and his wife sought to stop the publication of the letters in Sinkler’s book about the religious movement and her experience in it.  A federal district court rejected a First Amendment argument by Sinkler that she had a right to publish the letters that she had received from Goldsmith.  The court also rejected a fair use defense in large part because the letters were unpublished.

The dominant First Amendment approach to cases like Sinkler treats the copyright holder’s interests as primary and considers use rights only in the context of evaluating the general public interest in the underlying material, an interest that might be satisfied by synopsizing the underlying ideas and facts of the letters.  A liberty approach by contrast would allow Sinkler to publish the letters that she had received as part of her personal telling of her life story—a life that included not just the fact of those letters,  but also their content.

Category 2: Intimacy-Promoting Uses and the Freedom of Intimate Association

When copyright law limits the ability to convey our memories to others and to rework our experiences outside the confinement of our minds, it severely constrains our ability to develop ourselves and our relationships.  When efforts to promote intimacy drive the use of copyrighted material, great latitude should be given to users.  This sensibility is already implicit in some aspects of existing copyright law—in particular, the definition of public performance of works as something outside one’s circle of family and friends, and also the “home-style exception” for small businesses.  No doubt building off these already existing exceptions in copyright law, the personal use literature has favored uses among close family and friends.  It has done so, however, without expressly adopting an intimacy-based model.  It is crucial for protecting such categories of uses to make explicit the underlying theoretical and constitutional basis for them: intimacy promotion and the right to intimate association.

The dominant close-circle-of-friends-and-family approach also leads to vexing questions of how close is close and how many friends can one truly have.  A focus on intimacy promotion would lead to very different questions and avoid thorny inquiries about who is a friend and who is part of one’s family.  Such an approach would instead consider whether the use of the copyrighted work was driven by an effort to promote intimacy.

Consider Samantha Ronson’s posting to her MySpace page of a photograph of her and her girlfriend kissing at a party.  Ronson violated the photographer’s copyright by posting the picture to her MySpace page without permission.  Neither the fair use doctrine nor the First Amendment provides Ronson a dependable defense, especially given that she advertises her professional DJ services on her webpage.  A liberty-based approach in contrast would establish Ronson’s right to post the picture.  This is true in part for the reasons set forth in Category 1—her mental integrity demands her ability to accurately describe her experiences—but the use of the photograph also promotes intimacy.  Ronson may have posted it to show her then-girlfriend, Lindsey Lohan, how important she was to Ronson or to share her affection for Lohan with her friends.

Such intimacy-promoting uses fit squarely within the principles of substantive due process.  The Supreme Court has struck down numerous attempts to regulate family relations and other intimate associations.  Accordingly, there is a strong constitutional argument for protecting a zone of uses of copyrighted works when such uses revolve around facilitating or shoring up intimate relations.

Category 3: Cultural and Linguistic Uses

A person’s identity is also dependent on being able to use language and certain cultural tropes.  When copyrighted works take on a secondary meaning and become a cultural artifact, they often become integral to communication with others.  Language itself creates, shapes, and defines our identity.  The Supreme Court recognized as much in Meyer v. Nebraska, when it held unconstitutional (on substantive due process grounds) a state law prohibiting the teaching of any language other than English.7 Although the Court focused on the right of parents to make choices about their children’s education, the Court also recognized the fundamental role that language plays in forming individual identities and its role in shaping how we think.

As technology makes more and more uses of copyrighted works both monetizable and detectable, and publishing companies and film studios license even minor quotes and references to copyrighted works, a pay-per-use society may be closer than we think.  It is therefore worth considering the outer boundaries of copyright law and ways in which it could be brought to bear against linguistic, communicative uses of works.  Imagine a world in which a family who sings “Happy Birthday” at a restaurant,8 or friends who perform the lines from popular films in public spaces such as schools or restaurants, could be held liable for copyright infringement.  The copyright system should not allow penalties or the extraction of fees if in the midst of a crisis you want to yell the line from the movie Jaws “we’re gonna need a bigger boat”; or if, in a particularly unresponsive class, you, as a professor, want to yell out “Bueller?… Bueller?… Bueller?” from Ferris Bueller’s Day Off.  A liberty-based approach would give latitude for such cultural and linguistic uses because the copyrighted works have gained linguistic meaning and therefore have become a constitutive part of both our personal and cultural identities.

Category 4: Religious Practice and Identity-Based Uses of Religious Texts

The final category of uses that should be privileged are those involving religious practice.  Copyrighted works often are integral to an individual’s religious identity.  The use of the actual expression of the underlying copyrighted works is crucial for religious practice.  Although the Koran and Judeo-Christian bibles are generally thought to be free of copyright protections, various editions of those texts with editors’ commentary and new translations are not.  Most religious texts for recently developed religions are still protected by copyright law.  Numerous religious groups have therefore been able to use copyright law to wield power over their members, as well as against dissenters and splinter groups.

Consider the Ninth Circuit case, Worldwide Church of God v. Philadelphia Church of God, Inc.9 The religious organization, Worldwide Church of God (“WCG”), was developed by Herbert Armstrong.  Armstrong wrote a book entitled Mystery of the Ages (“Mystery”).  The copyright for the book was held by WCG.  Two years after Armstrong’s death, the WCG decided to stop distributing and publishing Mystery in large part because the church doctrine had changed.  A splinter group of the church formed as the Philadelphia Church of God (“PCG”) and began using Mystery for its services and personal religious observance.  This splinter group wanted to continue to practice the religion as originally set forth by Armstrong.  WCG sued to stop PCG from copying and distributing Mystery.  The Ninth Circuit rejected PCG’s First Amendment and fair use defenses.  A liberty approach would result in a different outcome because the use by PCG was a highly personal one, fundamental to each member’s religious and personal identity.

Scope and Limitations of Privileged Uses

When uses are privileged under a liberty-based analysis, no injunctions, criminal charges, or monetary penalties should apply.  Copyright holders cannot own reality and should not be able to stop individuals from documenting, contextualizing, or reframing their own experiences, nor charge them for doing so.  Placing a liberty lens over uses of copyrighted works does not, however, give a carte blanche to use works without permission and payment.  Although there may be a general liberty interest in doing what one pleases with copyrighted works, such interests will only outweigh competing interests of copyright holders, creators, and the public more broadly when the individual impact is significant.  There is a continuum or spectrum upon which uses are more or less related to one’s identity and more or less related to the enumerated categories.  The more integral the use is to one’s identity, the more latitude that should be given to use the underlying works.

Reconceptualizing Fair Use

The liberty interest that I identify could not simply be incorporated or subsumed into the fair use analysis, at least not fair use as we currently understand it.  The examples of privileged uses that I have provided are not likely to receive protection from fair use.  Fair use factors do a better job of protecting public, rather than individual, interests.  The first fair use factor, for example, evaluates the character and purpose of the use and favors critical uses (whether of a scholarly or creative/parodic nature) and transformative ones.  The fourth fair use factor—the effect on the market for the work—also favors critical uses because they are viewed as not interfering with a natural market of the underlying work since a creator will not generally sell or market works critical of his original work.  Additionally, negative market impact has often been found when licensing is possible, even if there is no existing licensing market.

Fair use, at least in its current incarnation, is therefore not up to the task of protecting personal or identity-based uses with any reliability.  Accordingly, an alternative normative frame is required.  Empowering courts, litigants, and others to infuse the fair use analysis (perhaps via the purpose-and-character-of-the-use factor) with individual liberty interests would be a step forward.  My main goal here, however, is not narrowly aimed at revitalizing fair use, but at developing a broader alternative, independent constitutional theory for evaluating the legitimacy of uses not adequately protected by current doctrine and to suggest some outer boundaries of copyright law.


As copyright law expands (both statutorily and technologically), there needs to be a theoretical and constitutional basis for limiting its reach.  The proposed liberty framework provides a promising avenue for limiting the dominance of copyright over very personal—even if public—uses of copyrighted works.  Even when personal uses are not political, private, or non-profit, they still are often fundamental to our personhood and our constitutional right to liberty.  I do not contend that a liberty-based approach is sufficient to safeguard all uses of others’ copyrighted works that might be warranted.  There are instances in which the public interest does require, on a First Amendment basis, some dissemination of works.  The liberty-based approach, however, provides a compelling alternative basis for protecting some uses.  Such an alternative is crucial given the failure of the First Amendment to play a significant role in copyright cases and the fact that such personal uses are often overlooked even by advocates of greater First Amendment scrutiny.

The specific impact of a shift to the liberty paradigm will take time to develop, but this new lens provides a powerful basis for recalibrating copyright law and gives shape and heft to the personal use movement.


Copyright © 2010 Cornell Law Review.

Jennifer E. Rothman is Professor of Law at Loyola Law School (Los Angeles).

  1. Eldred v. Ashcroft, 537 U.S. 186, 221 (2002).
  2. Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 558 (1985).
  3. Planned Parenthood v. Casey, 505 U.S. 833, 927 (1992) (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part); Casey, 505 U.S. at 851; Lawrence v. Texas, 539 U.S. 558, 562 (2003).
  4. Meyer v. Nebraska, 262 U.S. 390 (1923).
  5. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (citing Rochin v. California, 342 U.S. 165 (1952)).
  6. 623 F. Supp. 727 (D. Ariz. 1985).
  7. 262 U.S. 390 (1923).
  8. Currently, such singing is permitted pursuant to 17 U.S.C. § 110(4).
  9. Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000).

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