A major fair use dispute recently culminated in the Supreme Court The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The arguments vacillated between passionate defense of the arts (from both sides), delicate neologism and wild hypotheses that might have sprung from a legal final exam. The Supreme Court won’t make a decision for several months, but the case itself beautifully illustrates the core issue facing judges, attorneys and creators alike: that fair use is tangled in legal minutiae and technical arguments are for judges – not creator.
In the 1980s, a photographer named Lynn Goldsmith took photo portraits of Prince. (Yes, that prince.) She licensed them to Vanity Fair to use as artist references for article illustrations, got paid, and went on on her merry way. Vanity Fair turned around and commissioned Andy Warhol (yes, that Andy Warhol) to do a screenprint illustration of Prince, based on Goldsmith’s photos, for an upcoming issue. Warhol completed the job, and then a few more; Although he was only paid for one (“Purple Prince”), he made another 13 variants just for fun. These were not published, nor were they part of the agreement with Vanity Fair. Vanity Fair published the article with “Purple Prince” in 1984, and Warhol died in 1989.
Three decades later, Prince died. Vanity Fair reached out to Warhol’s heirs (The Warhol Foundation) and asked if the publication could use another image from the Prince series as the cover for their commemorative edition. The Warhol Foundation agreed and another print from the series (“Orange Prince”) ran on the cover of Vanity Fair.
Goldsmith — who up to that point was unaware of the other 13 Prince prints (try saying that ten times fast) — sued, arguing that her original license to Vanity Fair only covered the creation of the first print. According to Goldsmith, the silkscreens are nothing more than unlicensed colorizations that infringe their copyright. The Warhol Foundation countered that the prints were transformative fair use because (among other things) they significantly altered the “meaning or message” of the original work. The trial court agreed with Warhol; the 2nd US Circuit Court of Appeals did not.
Fair use (codified in 17 USC Section 107) is difficult. It’s subjective, nebulous, and—as we’ve long argued, and the Supreme Court agrees—absolutely necessary to keep America’s copyright system from running afoul of the First Amendment.
This blurring is both a feature and a bug. While the current state of fair use law doesn’t provide much ex-ante assurance (which is very important for independent artists who can’t afford litigation), it does allow for a wide, flexible range of expression, which is absolutely crucial is a world in which we constantly find new and innovative ways of expression and repurposing. It also allows copyright—which is functionally a prior restriction on private speech—to coexist with the First Amendment.
Within the courtroom, fair use is applied using a four-factor weighing test. The first factor in particular (Section 107(1)) is a notoriously vague wording that requires courts to “consider the purpose and manner of use, including whether such use is commercial in nature or for non-profit educational purposes. ” This language leaves a lot unsaid. For example, we know that whether something is commercial or non-commercial (but not everything) is part of it. We know that being educational is part of it (but not all). And so, a very rich field of legal thought has spawned many tests and rules of thumb, including what is called “transformability”. Transformativity is an assessment of how the new work changes what the Supreme Court has called the “meaning or message” of the original.
Now, it is generally a very good idea for courts to examine the “meaning and message” of a new work in comparison to the original. In this difference in message between the new work and the original, satire and parody get their punch. The Onion recently went viral with an amicus briefing that detailed (among other things) how satire can only work on a rhetorical level by mimicking what it satirizes.
The reason some courts don’t like this idea is because it puts them in the role of art critics. What is the “meaning or message” of a monochrome screenprint by Prince? Are we also thinking about screen printing in isolation? Or are we thinking in terms of “on a magazine cover, announcing a retrospective about a deceased musician”? Or do we think about it in conjunction with other written content with a clearer message? How do we know what this other content is? Should it matter? Understandably, this makes some judges uncomfortable in their role as arbiters of art.
It’s worth noting, however, that this “meaning and message dictate” came from the Supreme Court itself in one of its landmark fair use cases, which has since become the backbone of four decades of jurisprudence. You’re forgiven if you think it’s somehow important. However, the Second Circuit ruled that it had had enough of the “meaning and message” analysis of Section 107(1) and ruled that the courts are barred from considering “meaning” while the original “sampled” work is still recognizable is or message” of the new work.
In other words, the majority came to the conclusion that if a viewer can see with a new work and still select the original ingredients, the overall message of the new work doesn’t matter. And while the judges’ frustration may be understandable, this new “test” is causing an avalanche of problems with fair application jurisprudence. It essentially weighs in against entire swaths of transformative work ranging from memes to fanworks to most political satire. (Can you imagine what The daily Newsor Last week tonight with John Oliverwould have to legally endure if it were determined that these shows could not use recognizable clips from news segments for punch lines?)
Oral hearings in the Supreme Court took place on October 13, and as befits Andy Warhol, they were colorful. The facts of this case are difficult precisely because Warhol was an artist whose whole ploy was to comment on consumer culture by recontextualizing existing images. In this sense, his name alone carries a strong weight in favor of the ability to transform. But while that works for Warhol, it doesn’t necessarily work for anyone else, and with some works it’s really difficult to figure out a message or meaning. The judges managed to get into almost every obscure corner of copyright law, including commercialization, derivative work rights (its own rabbit hole), and attribution issues.
The Department of Justice attempted to solve this conundrum by providing its own wording for how courts should analyze whether a new use satisfies the “Purpose and Character” branch of Section 107(1). Unfortunately, when questioned, the prosecutor could not agree on a precise language and suggested several different phrases, each with very different meanings.
It is difficult to predict how the court will rule on this. Current judges lack in-depth knowledge of copyright and their positions on the subject are difficult to predict. They all seemed interested in the DOJ’s proposed rewording, but encountered its uncertain wording.
At the very least, it seems unlikely that the Second Circuit’s decision will be upheld as it is. The Supreme Court is notoriously sensitive when lower courts decide to explicitly throw out an established precedent without consulting them, especially when it creates such a dramatic division of circles and turns nearly half a century of case law on its head. It’s likely that the second-circuit test — “I can tell what you used to do this transformative work, so you’re failing on the first factor” — will be overturned, and that’s a good thing.
The bigger lesson from this is arguably a harder one: fair use, the engine of online opinion, lives and dies on those small, technical arguments made in courtrooms far away. Public Knowledge, along with our colleagues and associates at the EFF, OTW and the like, are doing what we can to support it in court. But there are things we can do to mitigate the potential consequences of these cases. We can create new explicit exceptions and limitations that allow clearly defined categories of activity without weakening fair use. We can clarify that machine learning, where a work is consumed and analyzed entirely by a computer, is just as clearly outside the scope of copyright law as a human reading a book. And we can continue to fight the narrative that any unpaid use equates to copyright infringement.