{"id":339,"date":"2023-03-15T00:42:57","date_gmt":"2023-03-15T00:42:57","guid":{"rendered":"https:\/\/wordpress.library.illinois.edu\/scholarlycommunications\/?post_type=podcast&p=339"},"modified":"2026-01-29T16:14:16","modified_gmt":"2026-01-29T16:14:16","slug":"celebrating-10-years-of-fair-use-week-with-sandra-enimil","status":"publish","type":"podcast","link":"https:\/\/wordpress.library.illinois.edu\/scholarlycommunications\/podcast\/celebrating-10-years-of-fair-use-week-with-sandra-enimil\/","title":{"rendered":"Celebrating 10 Years of Fair Use Week with Sandra Enimil"},"content":{"rendered":"

\"PictureCheck out Sandra Enimil\u2019s Blog<\/a> from Harvard\u2019s celebration of Fair Use Week that is referenced in this podcast episode.<\/p>\n

Transcript:<\/strong><\/p>\n

Sara: So, welcome. This is a live version of the copyright chat with Sandra Enimil from Yale University Library. We are here, and celebrating Fair Use Week. Welcome.<\/p>\n

Sandra: Da, da! That\u2019s the trumpet sounding.<\/p>\n

Sara: Very exciting. It\u2019s the tenth anniversary of Fair Use Week. I\u2019m super excited, and I\u2019m even more jazzed because we have a pending Supreme Court case.<\/p>\n

Sandra: Very exciting!<\/p>\n

Sara: Tell us about it. Tell us what you think about it. What do you think about it?<\/p>\n

Sandra: Alright! So the case is Warhol v. Goldsmith, and it is a very exciting case, I mean. There\u2019s the thing of there being, two artists, you know, who are being, you know, not being pit, but they are pit against each other, and a third artist, you know, is the subject of the photograph of which you know one of them, you know made it.\u00a0 I think it\u2019s a really very beautiful photo of Prince.<\/p>\n

And then it became an Andy Warhol\u2014Andy Warhol treated series of full of photographs and paintings, and whatever. The original photographer, Lynn Goldsmith, then, you know, finds out that you know this image has been \u201cWarholized\u201d basically. And you know, contacts of Warhol Foundation to say, this is my image using my image. What\u2019s going on? Nobody\u2019s asked for permission. Nobody has a license, and the Warhol Foundation says it\u2019s fair use. Actually, we\u2019re gonna go to court and get the court to say that it\u2019s fair use. We\u2019re just, you know, you know. You go away. Goldsmith does not go away, and she, you know it, you know, pursues it. And now we\u2019re at the Supreme Court waiting to see, like what the court is gonna say about is this fair use? You know we heard, I think, at in the hearing, the oral arguments we heard, you know, transformative being tossed around. We heard questions about why this particular image? Why didn\u2019t Warhol, you know, take his own image. Interestingly, you know, we don\u2019t hear anything about Vanity Fair, who they license the image, and then they just gave it to Warhol and said, Hey, do your thing with this and he didn\u2019t like not even mention anymore. That is like, so how that works. Okay? They license it right?<\/p>\n

Sara: That\u2019s an interesting point, because they licensed it for the 1985 version.<\/p>\n

Sandra: Right, right.<\/p>\n

Sara: They knew they didn\u2019t have another license, but you know we know why, right? It\u2019s the deep pockets, and they\u2019re going for the deep pockets and Warhol made all the money off of it right?<\/p>\n

Sandra: Like, who is right, who has a deep pocket? Right? Yeah, Warhol made all the money.<\/p>\n

Sara: Not Vanity Fair.<\/p>\n

Sandra: Warhol made all the money. Yeah, yeah. So yeah.<\/p>\n

Sandra: So you know I and I still like it not even sure how I feel about the whole thing. I am, you know, really kind of like is, this is, is, is it not? Is it fair? Is it, you know, like thinking a lot about it? And I, it\u2019s actually it\u2019s like this, I\u2019m going into a tangent. So apologies.<\/p>\n

But Kyle Courtney host, the Harvard\u2019s that has a fair use blog for on Harvard\u2019s system, and you know, every year he asks folks to write something about fair use and I was just like kind of struggling with what I wanted to write about and decided, okay, I\u2019m gonna write about this case. But kind of not really. So writing about something that\u2019s real tangential. Again, and it\u2019s about the use of likeness. So it\u2019s about it\u2019s basically about Prince. It\u2019s about subjects and photos, and they\u2019re people\u2019s ability to say, yes. So certain things happening with images that you know contain their likeness and then I\u2019m gonna find a way to loop that back around the fair use at some point tonight, while I\u2019m you know, finishing it up and crying. You know as you do as a forget procrastinator. But I just you know I\u2019ve just been thinking a little about that about the use of his likeness, and how this is the set. It\u2019s the center of the dispute, but he\u2019s not really even part of it. Much like Vanity Fair. Like he\u2019s not even part of this, I mean the considerations around him is not really a part of it.<\/p>\n

Sara: Yeah. The part where I saw him come into it the most frankly was during the oral argument, where there were weird ways, one where people were joking about whether they, the Supreme Court justices, listened to Prince. Like what? And then also because one of the arguments about the transformative nature of the work was that the original photograph was supposed to be vulnerable right, and that the new photo by Warhol was meant to like be like pop culture and like commercialism and all this. So that was like the transformativeness arguably.<\/p>\n

Sandra: Right and that\u2019s what the you know. So his side is trying to try to make that argument of that. They needed this photo. They need because it\u2019s an early photo of him. And they needed to use that, because, of course, the common is like, why can\u2019t you use to use anything else or take up another photo of him? Or you know as Warhol has done in the past. He\u2019s taken his own photos, and then, you know, done his. The extra process that he does to things, or paid for licenses, which he\u2019s also done before. And so they\u2019re like, well, why this photo? Because you could have done anything else. And so that, yeah, that was their response was that it had to be this one because of the reasoning of the original, and how it looked and presented.<\/p>\n

Sara: But I, okay, I I know you\u2019re presenting it, as this is what they\u2019re arguing.<\/p>\n

Sandra: That\u2019s what they\u2019re arguing.<\/p>\n

Sara: But like the extent that they made the comparison, I really bought this comparison, which was they made the comparison to this Campbell soup cans right and saying like, Oh, well, why do you do it? Of Campbell\u2019s soup. He could have done it for Cheerios. He could have done it. It\u2019s like, yeah. But he wanted to do that brand, because that was the brand that was like comfort comforting like, you see, it. And you\u2019re like your kids sick, and you gotta buy them like the Campbell\u2019s soup right?<\/p>\n

Sandra: Yeah.<\/p>\n

Sara: \u00a0And like that was the that was what he was going for, and same thing like he could have gone for another image could have gone for another artist.<\/p>\n

Sandra: Yeah. Yes.<\/p>\n

Sara: But he didn\u2019t want to. This is what he was doing. And like also, are we seriously going to start telling artists like Warhol? Which brand they should critique like a you know what I mean like it\u2019s I don\u2019t know like I\u2019m not. I don\u2019t wanna be in that business.<\/p>\n

Sandra: I don\u2019t know. So the thing that\u2019s like awful, you know, I cause I like, I said. I have been all over the place with this, too, and like listening to a bunch of different commentary about it.<\/p>\n

And I\u2019m just like, you know, Warhol and Goldsmith. They\u2019re both white, but one is a woman, and one is a man, and I like thinking about like the dynamics of that. You know that he feels like he could just take this thing from her there, you know I\u2019m you know. That\u2019s in there and then also, like, you know, Prince, like I said, he\u2019s just he\u2019s just there, kinda you know, like he\u2019s not, you know, not even getting like the prints like it\u2019s Prince kind of thing. It\u2019s just he\u2019s just there, you know, as the black artist, you know. So I just I don\u2019t know. I have like so many things that are circling around in my brain, rattling around.<\/p>\n

Sara: \u00a0I like that. Our, I mean, I hadn\u2019t thought of that point of like the gendered point, and also the fact that, like, you know, she really didn\u2019t get it paid a lot right.<\/p>\n

Sandra: No Nope. She didn\u2019t get paid. She didn\u2019t get paid a lot, and then it\u2019s like when she goes to say, Hey, what\u2019s happening here? There isn\u2019t like, Okay, maybe. Or maybe there was I don\u2019t know we don\u2019t know about. I don\u2019t know that, you know. They didn\u2019t offer her something. Maybe they did. But you know what we know from like the filings that they came and said, we want the court to tell us that what we did was okay. And I\u2019m just like I don\u2019t know. I\u2019m kind of struggling with that, you know.<\/p>\n

Sara: But that\u2019s where. Okay, yes, but that\u2019s how every good, fair use case happens, isn\u2019t it? I mean, like.<\/p>\n

Sandra: You know, I know I\u2019m on pins and needles and like know how it, how it, how it\u2019s gonna end up right? You know.<\/p>\n

Sara: Well, I also wonder. And I really, really do wonder this, how it could or would impact libraries at all. And I said this about the second circuit opinion, where they said, like, you can\u2019t change art into art. That\u2019s not transformative and my response to that is well, you know, libraries aren\u2019t really in the business of making art so. But if they start making new transformative decisions, right decisions about the purpose and character that could impact us a lot. So it depends on what they have to say. Right? I\u2019m back to. It depends.<\/p>\n

Sandra: I mean, I think, like the how we sometimes get stuck with transformation is like, we think it has to be like a whole new thing. And I think for a lot of the work that we do. You know. Obviously, it\u2019s not everything, but for a lot of it. It\u2019s not transformative. It\u2019s like kind of working in the same direction as the original thing. But you know we have a smaller audience, or we\u2019re only using this. A portion of it, you know there are a number of other things that really help us if we don\u2019t have that transformative piece of it from the first factor. But yeah, I also don\u2019t know how it will impact us. We\u2019re not alone in that. \u00a0I think in a lot of the amicus briefs that kinda went around, you know, at least from the library perspective. It was like, we\u2019re just concerned. We don\u2019t. We\u2019re not saying which way to go, but you know we\u2019re watching.<\/p>\n

Sara: Yeah, it\u2019s kinda like, do no harm right like, do no harm. \u00a0Supreme Court like you can decide what you need to just leave us out of this.<\/p>\n

Sandra: Yeah, please please don\u2019t ruin the Fair Use part and make it very against, but worthless to libraries. \u00a0Do I think, you know, there\u2019s definitely especially with, like, you know, this particular Supreme Court, like, what are they gonna do you know? And the thing about oral arguments is like it doesn\u2019t give you anything like you just are listening. And it\u2019s interesting and blah blah blah, but they never. They\u2019re not really showing their hand.<\/p>\n

Sara: Sometimes they do, but I felt like in this case it was hard to tell. It was very hard to tell.<\/p>\n

Sandra: Sometimes. Yeah, yeah. It was hard to tell. It was hard to. Yeah. It was hard to tell from this from these arguments, though very interesting, though.<\/p>\n

Sara: Yeah, it\u2019ll be. It\u2019ll be super interesting, I mean, no matter what happens, I\u2019ll be interested to read the case and to try to understand it, and then to like, look at the tea leaves and try to see what impact it might have it\u2019s it will inevitably have some impact. Because I mean, look at the Campbell. The last case that we had with the Roy Orbison on fair use so long ago, I mean, that has had a massive impact.<\/p>\n

Sandra: Yeah.<\/p>\n

Sara: So I do agree with the first, do no harm. Yeah, but you know, yeah, I mean, cause you know, Campbell give gives us, you know, the articulation of transformation.<\/p>\n

Sandra: And but you know, I think it\u2019s interesting that we go to the Supreme Court. It gives us transformation. But in hip, hop, you know there was where it should have been like a whole bunch of folks like, okay, so we can sample and like the things. And that actually didn\u2019t happen. How they go interesting. Yeah, cause you would have thought that people, you know, we transformative. This, you know, came out and helped a lot of other at industries along with the music, industry and hip hop in particular, where it shows have been the case where. Now rely on and say and talk about. I\u2019m making a comment about this, so I can go ahead and sample this. It didn\u2019t turn out that way and went a different tact, which I think is really fascinating.<\/p>\n

Sara: Yeah. I wonder why that is. Maybe that\u2019s a difference in the community.<\/p>\n

Sandra: Oh, yeah, for sure. And you know, maybe one day when I can invent more time, I\u2019ll write something about that. I mean, a lot of people like thought about it and mentioned it, but I really wanna know, like, why, why not?<\/p>\n

Sara: I think you should do that sooner rather than later, for a special issue that\u2019s coming up, that I might know something about. I see what you\u2019re saying, and like I\u2019ve had conversations with. So a friend of mine is married to a jazz artist, and like that\u2019s another area where, like jazz artists like, they steal from each other all the time, and nobody like gets mad about it, because it\u2019s just part of the culture. And that\u2019s the culture of it, right?<\/p>\n

Sandra: That\u2019s the culture of it. And yeah, I definitely think there is. There\u2019s something interesting about it. I think there\u2019s something interesting in, you know. Now we have, you know, mash-up artists. And yeah, some of them definitely license. And you know they are. You know they are licensing things, but not all of them. And they\u2019re not getting in trouble.<\/p>\n

Sara: Well, this has been so fun. And actually, I love the way this conversation went, because it was like just it just turned many ways as one does, and I I hope you all enjoyed listening to this podcast. Sandra, thank you so much for joining me for fair use. Week! It was such a blast, and may all your fair use adventures be risk-free.<\/p>\n

Sandra: Amen! Thank you.<\/p>\n

Sara: I really appreciate talking with you. Thank you.<\/p>\n

Sandra: Bye, everyone.<\/p>\n","protected":false},"excerpt":{"rendered":"Check out Sandra Enimil\u2019s Blog from Harvard\u2019s celebration of Fair Use Week that is referenced in this podcast episode. Transcript: Sara: So, welcome. This is a live version of the copyright chat with Sandra Enimil from Yale University Library. We are here, and celebrating Fair Use Week. Welcome. Sandra: Da, da! That\u2019s the trumpet sounding. […]","protected":false},"author":83,"featured_media":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_acf_changed":false,"episode_type":"audio","audio_file":"http:\/\/wordpress.library.illinois.edu\/scp\/wp-content\/uploads\/sites\/34\/2023\/03\/SandraCC3_13_2023.mp3","podmotor_file_id":"","podmotor_episode_id":"","cover_image":"","cover_image_id":"","duration":"15:10","filesize":"27.76M","filesize_raw":"29109103","date_recorded":"2023-03-15 00:42:57","explicit":"","block":""},"tags":[],"series":[11],"class_list":["post-339","podcast","type-podcast","status-publish","hentry","series-copyright-chat"],"acf":[],"episode_featured_image":false,"episode_player_image":"https:\/\/wordpress.library.illinois.edu\/scholarlycommunications\/wp-content\/uploads\/sites\/98\/2024\/02\/chat_orange_1400.png","download_link":"https:\/\/wordpress.library.illinois.edu\/scholarlycommunications\/podcast-download\/339\/celebrating-10-years-of-fair-use-week-with-sandra-enimil.mp3","player_link":"https:\/\/wordpress.library.illinois.edu\/scholarlycommunications\/podcast-player\/339\/celebrating-10-years-of-fair-use-week-with-sandra-enimil.mp3","audio_player":null,"episode_data":{"playerMode":"dark","subscribeUrls":{"apple_podcasts":{"key":"apple_podcasts","url":"","label":"Apple Podcasts","class":"apple_podcasts","icon":"apple-podcasts.png"},"stitcher":{"key":"stitcher","url":"","label":"Stitcher","class":"stitcher","icon":"stitcher.png"},"google_podcasts":{"key":"google_podcasts","url":"","label":"Google Podcasts","class":"google_podcasts","icon":"google-podcasts.png"},"spotify":{"key":"spotify","url":"","label":"Spotify","class":"spotify","icon":"spotify.png"}},"rssFeedUrl":"https:\/\/wordpress.library.illinois.edu\/scholarlycommunications\/feed\/podcast\/copyright-chat","embedCode":"

Celebrating 10 Years of Fair Use Week with Sandra Enimil<\/a><\/blockquote>