Abstract

Excerpted From: Cathay Y. N. Smith, Should Copyright Protect Racist Works? A Review of Intellectual Property and Immorality: Against Protecting Harmful Creations of the Mind by Ned Snow, 11 Texas A&M Journal of Property Law 169 (January 1, 2025) (111 Footnotes) (Full Document)

At the intersection of intellectual property law and moral considerations lies a complex debate. Can copyright drive societal transformations? Should copyright serve public interests that transcend copyright's traditional justifications and purpose? The Progress Clause of the United States Constitution underpins copyright with the intent to promote “progress” of science, but what forms of progress should copyright promote? Expressive works that reside on the fringes of legality and morality compel us to confront these questions and the role of copyright in fostering social change and safeguarding public interests. Intellectual property law, traditionally a champion of innovation and creativity, is increasingly confronted with the task of reconciling legal protection with moral implications.

Professor Ned Snow's groundbreaking book, Intellectual Property and Immorality: Against Protecting Harmful Creations of the Mind, casts a critical eye on these issues, offering a bold and provocative perspective to this discourse. Snow advocates for an ethically aware approach to intellectual property rights, questioning the blanket protection often afforded to intellectual creations and advocating for a more ethically conscious approach to intellectual property rights. Snow's thesis challenges the notion that all intellectual creations merit protection, particularly those that harm, deceive, or manipulate the public. This view represents a departure from the established belief that intellectual property rights should be indiscriminately applied to any creation that meets the basic criteria for protection. Under the premise of Snow's book, granting such rights to immoral and harmful creations runs contrary to the very purposes and principles of intellectual property law.

On that point, Snow's book posits a compelling challenge to the definition of ““progress of science,” a term enshrined in the United States Constitution as the rationale for copyright protection. Instead of meaning the mere distribution of knowledge, Snow defines the word “progress” as “advancement or improvement” of society and general social welfare. In his book, Snow argues that works that do not advance or improve society, but actually harm society, should not be eligible for copyright. This proposal contests the content neutrality of copyright, and advocates for the contemplation of social welfare in copyright law. Snow's interrogation of commonly accepted notions of copyright's role contributes to the scholarly dialogue, helping to advance arguments for a more ethical and socially responsible approach to regulating intellectual creations.

This Essay will focus on Snow's propositions as they relate to a subject matter that I recently dealt with in my scholarship: offensive and racially insensitive classic children's literature and film. Using this subject matter, this Essay applies Snow's proposal to analyze whether these works would, under his conditions, be ineligible for copyright because they fail to promote the “progress” of science. I then raise three questions to investigate the implications and consequences of removing copyright from these and other ““immoral” works: whether removing copyright will promote more replication and dissemination of harmful works; whether copyright can effectively consider the changing, diverse, and sometimes disparate moral values of society; and whether denying copyright to certain offensive expression violates principles of free speech.

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Under Snow's proposition, “immoral” works such as pornography, disinformation, and racially insensitive content in children's literature and film do not further the advancement of society and, consequently, should not be granted copyright protection. This Essay raises concerns with the implications and consequences of stripping copyright from these subject matters, including the potential to increase--rather than decrease--harmful subject matter, the inability to establish a consistent standard for determining immorality due to the changing and diverse moral values of society, and the act of discriminating against certain content because of its subject matter or the views that it expresses. Regardless, these concerns do not detract from Snow's scholarly contribution calling for an important and nuanced equilibrium between the rights of creators and the broader interests of society. His work underscores the imperative for intellectual property laws to evolve in a manner that conscientiously weighs creators' privileges against potential societal harm, thereby fostering an environment where creativity and public welfare are not mutually exclusive but are advanced in tandem.

Professor of Law & Co-Director, Program in Intellectual Property Law, Chicago-Kent College of Law (IIT).