Most clients hope for a quick answer, e.g., “Please look at this and tell me whether it’s fair use or not.” Clients are hoping for a gut reaction, rather than hours of a lawyer’s billable time. Of course, it’s never that easy to predict a lawsuit’s outcome. Fair use is analyzed on a case-by-case basis using four balancing factors. Over the past few decades, courts have focused much on the first factor: the purpose and character of the original work’s use. This first factor is often reduced to whether or not the new work is “transformative.” This could mean that the new work makes different use of the original or adds a new expression, meaning, or message.
Campbell v. Acuff-Rose is a seminal case for fair use. This case discussed 2 Live Crew’s parody of Roy Orbison’s Oh! Pretty Woman. The Supreme Court found fair use, in significant part, due to the additional expression, meaning, and message: 2 Live Crew was a parody, directly commenting on and contrasting with Orbison’s romantic presentation. This case seemed to present at least one bright-line rule: parody (a new work commenting on the original) was fair use but satire (a new work using the original to comment on a third subject) was not fair use.
Cariou v. Prince blurred the bright line, considerably. In 2013, the Second Circuit decided that 25 of 30 variations on works by Richard Prince were fair use by virtue of Patrick Cariou’s doing as little placing splodges on the eyes of the depicted Rastafarians. The court explicitly stated that Copyright Law imposes no requirement that a work comment on the original or its author in order to be transformative. Many in the legal community expressed concern that the fair use exception could be swallowing the rule of copyright. What new meaning do splodges give to the original photograph? How can using an original work to comment on a third subject be considered fair?
The Supreme Court’s May decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith adds to this uncertainty, though reining in the fair use (if ever so slightly). Fully stated, SCOTUS noted the first factor of a fair use analysis is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” It asks “whether and to what extent the use at issue has a purpose or character different from the original.”
The fact pattern for AWF v. Goldsmith extends back to 1981 when a young musician named Prince was just gaining notoriety. Very, very briefly, Goldsmith licensed one of her portraits of Prince to Vanity Fair “for use as an artist reference” on a one-time basis as a Warhol silkscreen. Naturally, the first silkscreen of Prince was purple. Not surprisingly, Warhol did a whole series of silkscreens similar to his Marilyn Monroe series, without authorization. But these additional silkscreens were never made public.
On the heels of Prince’s death in 2016, Conde Nast, owner of Vanity Fair, licensed one of those additional silkscreens (“Orange Prince”) for a retrospective on this great artist. Upon discovering this unauthorized work, Goldsmith sent a letter to the AWF. They ended up in court, ultimately appealing to the Supreme Court.
Justice Sotomayor, writing for the majority, acknowledged that the two photos could be distinguished: Goldsmith’s portrait was photorealistic while Warhol’s variation portrayed Prince as iconic. However, according to the decision, the degree of difference must be weighed against other considerations, like commercialism. Thus, copying a photograph merely to convey a new meaning or message was not justification enough for the use. SCOTUS reduced both artists’ use to commercial licensing; with identical uses, Warhol’s work was not different enough from the original to justify fair use.
This decision begs the question of how the courts might interpret “use” going forward. Most original and transformative artworks are in the stream of commerce, somehow—especially those involved with litigation. Yet, every artist has a unique message to convey. According to this decision, if the use is commercial, then the original work must be more different. Perhaps the commercial uses must be identical: both Goldsmith and AWF “used” their respective works for licensing purposes. We can guess that the works must be more different than that between a photo and a silkscreen of the photo if both are licensed. But that’s about all we know concerning how narrow or broad this decision will be interpreted only in future cases.
Until then, AWF v. Goldsmith serves as an example of why the fair use analysis cannot be accomplished with an immediate, gut reaction.