William & Mary Bill of Rights Journal
Abstract
The Constitution’s Intellectual Property Clause (IP Clause) contains a mandated goal of “progress” for copyright. Efforts to address what progress means move between some understanding it to be a specific Enlightenment-oriented term, progress as a forward-moving, Judeo-Christian ideal, to others viewing the term as strictly economic, understanding the goal of copyright is to get as many different products in the market as possible. Defining what progress means in copyright law is a necessary step, as courts are increasingly considering market forces in granting or denying authorial property rights. This Note addresses what progress means, how imitative art factors in, and ultimately how this understanding of progress affects fair use.
It is important to address the state of the fair use analysis to understand how imitative art is currently treated within copyright law. The current approach to fair use analysis employs a broad brush in analyzing the commercial purpose and effect on the market: if the imitative work and the original work on which it is based share the same commercial purpose and operate in the same general marketplace, then fair use might not be found. This approach, however, does not take a more specific, nuanced look at the works involved. It does not favor consideration of how the two works are visually different, for instance, or how the market itself might perceive the two works as serving a different purpose even if they both exist in the same marketplace. This approach to fair use stems from the 2023 case: Andy Warhol Foundation v. Goldsmith.
This Note proceeds in three parts. Part I explains standard interpretations of “[p]rogress” in the IP Clause and why these interpretations are insufficient. The interpretations assign a meaning to progress that is better associated with patents and other aspects of the Clause, rendering them inadequate. Part II introduces the intellectual matrix in which the IP Clause developed. It explores how the term “[p]rogress” reflected on a longstanding practice of imitation in the arts and how imitative practice guided English and early colonial copyright law. Part II also notes that understanding progress as integrating imitative art within its scope is not confined to the eighteenth century but rather carried through the nineteenth and twentieth centuries. Part III considers the implications of this version of progress on 17 U.S.C. § 107 and what a fair use analysis might look like with this historical practice in mind.
This abstract has been taken from the author's introduction.
Repository Citation
Genevieve Stegner-Freitag, Confronting Imitation: Questioning Fair Use After Warhol, 34 Wm. & Mary Bill Rts. J. 859 (2026), https://scholarship.law.wm.edu/wmborj/vol34/iss3/8Included in
Constitutional Law Commons, Intellectual Property Law Commons, Supreme Court of the United States Commons