A major dispute over fair use recently had its moment before the Supreme Court in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The arguments veered between passionate defenses of the arts (from both sides), delicate wordsmithing, and wild hypotheticals that could have come out of a law school final exam. The Supreme Court won’t issue a decision for several months, but the case itself beautifully illustrates the core issue with which judges, advocates, and creators alike struggle: that fair use is mired in legal minutiae, and technical arguments designed for judges – not creators.
Back in the 1980s, a photographer named Lynn Goldsmith took photo portraits of Prince. (Yes, that Prince.) She licensed them to Vanity Fair to be used as artist’s references for article illustrations, got paid, and went along her merry way. Vanity Fair turned around and commissioned Andy Warhol (yes, that Andy Warhol) to do a silkscreen illustration of Prince, based on Goldsmith’s photos, for an upcoming issue. Warhol completed the commission, and then some; although he was only paid for one (“Purple Prince”), he made another 13 variants, just for funsies. These were not published, nor were they part of the agreement with Vanity Fair. Vanity Fair ran the article with “Purple Prince” in 1984, and Warhol died in 1989.
Three decades later, Prince died. Vanity Fair approached 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 had, to this point, been unaware of the other 13 Prince prints (try saying that ten times fast) – sued, arguing that her initial license to Vanity Fair only covered the creation of the initial print. According to Goldsmith, the silkscreens amount to nothing more than unlicensed colorizations that infringe on her copyright. The Warhol Foundation countered that the prints were a transformative fair use, as (among other things) they substantially altered the “meaning or message” of the original work. The trial court agreed with Warhol; the 2nd U.S. Circuit Court of Appeals did not.
Fair use (codified at 17 USC Section 107) is tricky. It is subjective, nebulous, and – as we’ve long argued, and the Supreme Court agrees – absolutely necessary to prevent the American copyright system from running afoul of the First Amendment.
This vagueness is both a feature and a bug. While the current state of fair use law doesn’t grant much in the way of ex ante certainty (something very important to independent artists who can’t afford litigation), it does permit a wide, flexible range of expression that is absolutely critical in a world where we are constantly finding new and innovative modes of expression and repurposing. It also allows copyright – which is, functionally, a prior restraint on private speech – to coexist alongside the First Amendment.
Within the courtroom, fair use is applied by using a four factor balancing test. The first factor in particular (Section 107(1)) is a notoriously vague bit of language that asks courts to look at “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” This language leaves a lot unsaid. For example, we know that whether something is commercial or non-commercial is part of it (but not all of it). We know that whether it’s educational is part of it (but not all of it). And so a very rich field of judicial thinking has produced many tests and rules of thumb, including what’s called “transformativeness.” Transformativeness is an assessment of how much the new work changes what the Supreme Court described as the “meaning or message” of the original.
Now, it is a very good idea, generally speaking, for courts to consider the “meaning and message” of a new work as compared to the original. That difference in message between the new work and the original is where satire and parody get their punch. The Onion recently went viral with an amicus brief detailing (among other things) the mechanics of how satire can only function, on a rhetorical level, by mimicking the thing it is lampooning.
The reason some courts dislike this idea is because it puts them in the role of art critic. What is the “meaning or message” of a monochrome silkscreen of Prince? Also, do we think about the silkscreen in isolation? Or do we think about it in the context of “on a magazine cover, announcing a retrospective issue about a deceased musician”? Or do we think about it in conjunction with some other written content with a clearer point? How do we KNOW what that other content is? Should it matter? Understandably, this makes some judges uncomfortable with their role as arbiter of art.
However, it is worth noting 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 case law. You would be forgiven for thinking that makes it kind of important. The Second Circuit, however, decided it had had enough of the “meaning and message” analysis of Section 107(1) and held that as long as the original work being “sampled” is still recognizable, courts are forbidden from considering the “meaning or message” of the new work.
In other words, the majority concluded that if a viewer can look at a new work and still pick out the original constituent materials, the overall message of the new work doesn’t matter. And while the judges’ frustration may be understandable, this new “test” creates an avalanche of problems with fair use case law. It essentially tips the scale against entire swaths of transformative work ranging from memes, to fanworks, to most political satire. (Could you imagine what The Daily Show, or Last Week Tonight with John Oliver, would have to endure legally if it was held that these shows couldn’t use recognizable news segment clips for punchlines?)
Oral arguments at the Supreme Court were October 13, and befitting of Andy Warhol, they were colorful. The facts of this case are difficult, precisely because Warhol was an artist whose entire schtick was using commenting on consumer culture by recontextualizing existing images. In that sense, his name alone carries a heavy weight in favor of transformativeness. But while that works for Warhol, it necessarily doesn’t work for anyone else, and some works are genuinely difficult to suss out a message or meaning for. The justices managed to veer into nearly every obscure corner of copyright law, including commerciality, the derivative works right (a rabbit hole of its own), and questions of attribution.
The Department of Justice attempted to solve this conundrum by presenting its own formulation for how courts should analyze whether a new use fulfills the “purpose and character” prong of Section 107(1). Unfortunately, the government attorney, at questioning, couldn’t settle on exact language, and proposed several different formulations that each carried wildly different meanings.
It’s hard to know exactly how the court will come down on this. The current justices lack a deep grounding in copyright, and their positions on the issue are hard to predict. All of them seemed interested in the DOJ’s proposed reformulation, but ran up against its uncertain phrasing.
At the very least, it seems unlikely that the Second Circuit’s decision will be upheld as-is. The Supreme Court is notoriously touchy about lower courts deciding to explicitly throw out standing precedent without asking them, especially when it creates such a dramatic circuit split and upends nearly a half-century of jurisprudence. It is likely that the Second Circuit test – “I can tell what you used to make this transformative work, therefore you fail on the first factor” – will be overturned, and that is a good thing.
The bigger lesson from this is arguably a harder one: Fair use, the engine of online expression, lives and dies by these small, technical arguments made in far-away court rooms. Public Knowledge, along with our colleagues and fellow travelers at EFF, OTW, and the like, do what we can to support it in the courts. But there are things we can do to mitigate the potential fallout of these cases. We can create new explicit exceptions and limitations that allow for clearly defined categories of activity, without weakening fair use. We can clarify that machine learning, in which a work is consumed and analyzed entirely by a computer, is just as firmly outside the ambit of copyright law as is a human reading a book. And we can keep fighting against the narrative that equates all unpaid use with infringement.