Fair Use Revisited

What the Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith Case Means for Fair Use Going Forward – Part 1

It’s been a while since I last wrote on fair use. Since that time, the Supreme Court decided a major case dealing with fair use, Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith. While the long-term impact of this case is still unknown, it’s expected to shake up the copyright landscape significantly. Let me go through this case and what it means for people using someone else’s content.

For those who aren’t familiar with this case, here’s the background:

In 1981, Lynn Goldsmith was hired to take a bunch of photos of this up and coming artist named Prince. Ms. Goldsmith took said photos, and has been licensing them and profiting off of them ever since. In 1984, Ms. Goldsmith licensed one of her photos to Vanity Fair to use as a reference for an illustration. Vanity Fair then hired Andy Warhol to create the illustration based on Ms. Goldsmith’s photo. It’s important to note that the license only gave permission for the photo, and the resulting illustration, to be used in a specific issue of Vanity Fair.

Fast forward to 2016, when Prince died. A lot of magazines and others in the entertainment news industry wanted to run commemorative articles, magazines etc. on Prince, using photos that had been taken of him over the years, and Conde Nast, the owner of Vanity Fair, was no exception. However, Conde Nast reached out to the Andy Warhol Foundation for the Visual Arts to reuse the illustration from 1984, and discovered that Andy Warhol had created a whole series of illustrations based on Ms. Goldsmith’s photo. Conde Nast then licensed a different illustration of Prince, and used it on the cover of their magazine. This alerted Ms. Goldsmith to the fact that Andy Warhol had made multiple illustrations of her photograph, and she accused the Andy Warhol Foundation of copyright infringement. Both parties then ran to the courts for a verdict, and the case made it all the way up to the Supreme Court.

Before I give away the ending (assuming you haven’t already heard), let’s do a quick refresher on the fair use test. Whenever courts are deciding whether something is fair use, they look at four factors (you can get a more detailed breakdown here – link to June 2018 post):

  1. The purpose and character of the use – what is the alleged infringer actually doing with the content?
  2. The nature of the copyrighted work – the more creative it is, the more protection it gets
  3. The amount used – how much was taken, in terms of quantity and in terms of quality
  4. The effect on the market – will the alleged infringer’s use hurt the original’s ability to make money?

The Supreme Court had previously stated that the fourth factor should be given the most weight, but over the years the lower courts have been looking more and more at the first factor. Specifically, they’ve been looking at whether the work is “transformative”, i.e. whether the original work has been altered to the point that the new work serves a different purpose or character. For example, in Google v. Author’s Guild, Google was sued because they were scanning whole libraries and putting the digitized books into a searchable online database. The court ruled this fair use, because a searchable online database is very different from a single book published for educational or entertainment purposes. (It helped that Google was careful to make sure that people couldn’t recreate a book from the snippets it made available, so the market for the scanned books wasn’t harmed.) It’s gotten to the point where some courts will decide an entire case based on whether or not the new work is “transformative.”

Are you thoroughly confused yet? I’ll give you some time to digest this, and we’ll pick this back up next time. Let me know if you have any questions that just can’t wait, otherwise I’ll see you again next month for the exciting conclusion about this fair use decision (that you’ll probably have heard by then, but that’s okay, I’ll still break it down for you).

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.

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