Narechania on Hamilton’s Copyright and the Election of 1800 @tnarecha @WisLRev @BerkeleyLaw

Tejas N. Narechania, University of California, Berkeley, School of Law, is publishing Hamilton’s Copyright and the Election of 1800 in the Wisconsin Law Review. Here is the abstract.

Copyright is, perhaps surprisingly, a regular fixture of electoral campaigns. Candidates deploy copyright to obscure prior policy statements. Local governments assert copyright over recordings of public meetings to protect incumbents. And campaign committees have used copyright to prevent counter-advertisements—ads which respond to (by embedding) their adversaries’ ads. Are these examples of illegal copyright infringement or protected political speech?

The Supreme Court has balanced copyright and First Amendment interests by looking both to copyright law’s internal doctrinal limits (e.g., fair use) and to the “historical record.” But, in political contexts, the doctrine is sparing: Candidates for public office, weighing the pressures of campaigning against the costs of copyright litigation, tend to prefer self-censorship—undermining protections for political speech.

The historical record may help. In this Essay, I highlight an episode—overlooked until now—that sheds new light on the speech-copyright equilibrium. Drawing on a mix of novel primary materials and secondary sources outside the legal literature, I tell the story of Alexander Hamilton’s secret, copyrighted pamphlet aimed at unseating John Adams from the top of the Federalist Party—secret, that is, until it leaked to Hamilton’s political opposition. Viewed in its entirety, this episode may reflect a shared, if contested, understanding—shared by both Hamilton and his opponents—that favors a full and fair discussion of such matters of public importance, even if copyright’s rules might otherwise restrain such speech. This political precedent may thus have implications for the contemporary controversies in which candidates deploy copyright (and related speech restraints) to squelch public scrutiny over their prior statements regarding, say, abortion rights. And so I conclude by describing how the public governance interests in such political speech should trump copyright’s restraints.

Download the article from SSRN at the link.