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17 Conn. L. Rev. 835 (1984-1985)
Fair Use and the First Amendment Protect Commercial Advertising: Consumers Union of United States, Inc. v. General Signal Corp.

handle is hein.journals/conlr17 and id is 847 raw text is: FAIR USE AND THE FIRST AMENDMENT PROTECT COMMERCIAL ADVERTISING: Consumers Union of United States, Inc. v. General Signal Corp.* In Consumers Union of United States, Inc. v. General Signal Corp.,' the Second Circuit Court of Appeals held that the fair use de- fense to copyright infringement permitted a manufacturer to quote from a copyrighted Consumer Reports article in television advertise- ments for its product. By approving such a defense in the context of commercial advertising, the General Signal court significantly ex- panded the fair use doctrine. Moreover, the court based this expansion on the recently recognized protection of commercial free speech. This note examines the doctrine of commercial free speech as it was developed by the Supreme Court. It also considers the means by which copyright law accomodates first amendment concerns, and ana- lyzes the commercial use aspect of copyright's fair use test. After dis- cussing the previous copyright infringement claims brought by Con- sumers Union in the federal courts, the note outlines the General Signal opinion and the dissent to the court's denial of rehearing en banc. The note suggests that application of the commercial speech doc- trine is both inappropriate and unnecessary in the context of copyright, and concludes that without the influence of commercial free speech, the General Signal court would have been faced with a clearcut case of copyright infringement. I. BACKGROUND A. Commercial Free Speech Three major justifications have been advanced to support the fun- damental right to freedom of speech as it is embodied in the first amendment.2 First, freedom of speech is an essential requirement for * This Note will be entered in the 1986 Nathan Burkan Memorial Competition. 1. 724 F.2d 1044 (2d Cir. 1983). reh'g denied, 730 F.2d 47 (2d Cir.), cert. denied, 105 S. Ct. 100 (1984). 2. The first amendment provides in part that Congress shall make no law.., abridging the freedom of speech, or of the press ...... U.S. CONsT. amend. I.

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