For a partial exception to the pattern, see New Era Publications Intl. v. Henry Hold & Co., 695 F. Supp. 1493, 1527-1528, 8 U.S.P.Q. 2d 1713 (S.D.N.Y. 1988) (permanent injuctioned denied, “notwithstanding some small degree of infringement,” because case presented “special circumstances in which the interests of free speech overwhelmingly exceed the plaintiff’s interest in an injunction”; When the interests protected by the copyright are in acute conflict with those represented by the First Amendment, courts should weigh cautiously whether a prior restraint in the form of an injunction is the appropriate remedy. An award of damages or profits designed to secure for copyright owners appropriate rewards of creativity can protect the copyright holder with far less injury to the public interest in freedom of speech than an injunction.”)Roy Export Co. v. Columbia Broadcasting Sys., Inc., 672 F. 2d 1095, 1099-1100, 215 U.S.P.Q. 289 (2d Cir.) ( “No Circuit that has considered the question, however, has ever held that the First Amendment provides a privilege in the copyright filed distinct from the accommodation embodied in the ‘fair use’ doctrine…. We conclude on the facts of this case that CBS’s efforts to secure a First Amendment news-reporting exception to the copyright laws cannot succeed.”), cert. denied, 459 U.S. 826 (1982); Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188, 203 U.S.P.Q. 321 (5th Cir. 1979) (“The First Amendment is not a license to trammel on legally recognized rights in intellectual property.”); Walt Disney Prods. V. Air Pirates, 581 F.2d 751, 758-759, 199 U.S.P.Q. 769 (9th Cir. 1978) (“There is of course some tension between the First Amendment and the Copyright Act, … but defendants’ claim can be dismissed without a lengthy discussion that it otherwise might merit in light of our recent decision in Sid & Marty Krofft Television v. McDonald’s Corp., 562 F.2d 1157, 1170{, 196 U.S.P.Q. 97} (9th Cir. 1977). In that case we endorsed not only Judge Wollenberg’s dismissal of defendants’ First Amendment claim here, but also the accommodation that ‘the idea-expression line represents an acceptable definitional balance between copyright and free speech interests.”), cert. denied, 439 U.S. 1132 (1979); Jackson v. MPI Home Video, 694 F. Supp. 483, 489, 8 U.S.P.Q. 2d 1572 (N.D. Ill. 1988); Hearst Corp. v. Stark, 639 F. Supp. 970, 978, 230 U.S.P.Q. 401 (N.D. Cal. 1986); Italian Brook Corp v. American Broadcasting Cos., 458 F. Supp. 65, 71 n.14, 200 U.S.P. . 312 (S.D.N.Y. 1978) (“Where, as in the case at bar, the thrust of the suit is to obtain compensation rather than to restrain communication, recourse to the First Amendment may be inappropriate as well as unnecessary. The copyright owner must be compensated for an infringing use. If the defendant’s use is fair and reasonable, no infringement has occurred and no compensation is owing. That is the case at bar.”); United States v. Bodin, 375 F. Supp. 1265, 1267, 183 U.S.P.Q. 345 (W.D. Okla. 1974) (“We do not find any denial of freedom of expression to the ‘tape pirate.’ What he seeks is not the freedom to express himself artistically or otherwise, but the right to make exact and identical copies of sound recordings made by others.”), aff’d sub nom. United States v. Blanton, 531 F.2d 442, 191 U.S.P.Q. 21 (10th Cir. 1975), cert. denied, 425 U.S. 935 (1976).
adapted from Goldstein, Copyright (Little, Brown, 1989), Vol.
2, pp. 239-40, footnote 5.