chapter one Introduction A ‘‘Largely Ignored Paradox’’ The u.s. supreme court has famously labeled copyright ‘‘the engine of free expression.’’1 Copyright law, the Court tells us, provides a vital economic incentive for the creation and distribution of much of the literature, commentary, music, art, and film that makes up our public discourse. Yet copyright also burdens speech. We often copy or build upon another’s words, images, or music to convey our own ideas effectively. We cannot do that if a copyright holder withholds permission or insists upon a license fee that is beyond our means. And copyright does not extend merely to literal copying. It can also prevent parodying, remolding, critically dissecting, or incorporating portions of existing expression into a new, independently created work. Consider The Wind Done Gone, a recent, best-selling novel by African American writer Alice Randall. Randall’s novel revisits the setting and characters of Margaret Mitchell’s classic Civil War...
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