New Transformative Fair Use Decision in Warhol

New Transformative Fair Use Decision in Warhol

To read the full opinion, see

Hello. And welcome to a special edition of Copyright Chat. Today, I wanted to update everyone on the most recent, exciting decision from the Supreme Court that is relevant to fair use. As you know from listening to previous episodes of Copyright Chat the Warhol decision from the Second Circuit Court of Appeals was appealed to the Supreme Court. And very recently, there was a decision on May 18, 2023.

So just a spoiler alert. For those of you who don’t want to listen to this entire episode. The case was upheld. It was affirmed by the Supreme Court. The Court found that the purpose and character under the first factor of fair use. Warhol’s use of Goldsmith’s photograph was not a fair use.

And that was the holding of the case affirming the Second circuit court of appeals. For those of you who want additional details, just as a reminder, this case centered around Warhol using a photograph of the late great singer Prince. It was Goldsmith’s photograph that she took for Conde Nast.

She took and then licensed the photograph originally to Conde Nast for an artist reference. She was paid $400 for that artist reference and the artist was Warhol.

That first use was actually permissible under license, but then Warhol took the photograph and made another series out of it.

And then he licensed one of those prints back to the magazine and was paid $10,000. Now that particular use was not condoned by Goldsmith who then sued and the court had found at the lowest level that it was a fair use.

It was reversed and then the Supreme Court also found it was not a fair use. Why? Well, the court noted that just because you add a new purpose or meaning or message under the first factor of fair use is not in and of itself enough. You have to consider the degree to which your new meaning or message changes the original work. You also need to take into consideration whether you are making the work commercial. Now, the court does note helpfully and correctly that commercialism is not the be all end all of the first factor simply because it’s commercial.

We know this. That does not mean it’s not a fair use, but. The court does point out many cases where works have been borrowed and they’ve been changed even quite substantially and still it is considered a derivative use. The classic example is someone taking a book and turning it into a movie. Of course the movie has new meanings, new messages, many things might be changed.

But we still consider that a classic example of a derivative work and not a fair use. The reason that they found this particular instance not to be a fair use was mainly because the work at issue here, which is a photograph of Prince, had itself been licensed to a magazine. And that was clearly one of the uses of those photographs. So therefore it was eating into the market of the photographer when Warhol used that same image as a basis for his derivative work and sold it to a magazine. How will this impact? Future analyses of fair use and how might this impact libraries.

The good news is that it really doesn’t change fair use law. What the Court does here is just clarify things and kind of lay out the differences between fair uses and derivative works, which is always an issue for courts below.

One thing I think to think through though in light of this decision is that not every new meaning or message that you can add to work means that it is a transformative fair use.You must consider the degree to which you are changing the work and also whether it is displacing the market value for the original or a commercial.

I think these things were always things we considered, but I think the court lays it out a little more clearly.

How will this impact libraries? I think luckily the answer is not much. You know these works were being used in the same market there they were both creative works they were both artistic works and In libraries, we’re often using works for non-commercial purposes and for research and for, other types of uses.

And so I do think that the good news is that, this doesn’t change the law a whole lot.
It, clarifies the law a little bit, but there’s really nothing too negative that comes out of this case and I think that that is the silver lining. It is not a bad idea to read the case, especially if you’re interested in fair use and particularly transformative fair use because it does a really great job of clarifying, you know, the difference between a derivative work and a transformative fair use. And I think that that is one of the 1 million dollar questions I usually get on teaching fair use to students.

Is where is the line between a transformative use and a derivative work? And so I think that this is a good case to read.

I think it’s a good case to try to understand if you care and are trying to apply transformative fair use to your work and are trying to apply transformative fair use to your works. But I think in terms of libraries and those who are.
But I think in terms of libraries and those who are using, works for research, education, non-commercial I don’t think it’s gonna change our fair use analysis in a huge way.

So I think that that is the real. Bottom line, I think, folks should definitely read the case for themselves.

I think that they should, certainly build on the analysis here and feel comfortable. If they are adding something new in a different way and also maybe critiquing the work or using it for research or using it for educational purposes then those are good, classic fair uses that are not really changed by this case. And, otherwise I think, it’s just a great thing to have some more clarity on the difference between transformative uses and derivative works.

So I hope you found this useful. I do encourage you to read the case for yourself. See if you can find other nuggets of wisdom from, Justice Sotomayor’s opinion here. But in general, there’s nothing to different or new that comes out of this case.

And I think that it is not going to change our practices at the university and research level too much.

I’m glad you were here. Thanks for listening. I hope to see you again. Alright, bye bye.

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