Another Gut Punch to Fair Use Analysis
Clients don’t want to pay for hours of legal research but prefer a quick gut reaction as to whether a specific use of someone else’s copyrighted material is fair use or not. Yet, it seems that each new court decision on fair use confirms the necessity of the painstaking application of the four factors. The recent Andy Warhol Foundation for the Visual Arts v. Goldsmith is the latest such confirmation.
The fact pattern for AWF v. Goldsmith extends back to 1981 when a young musician named Prince was just gaining notoriety and Goldsmith authored some portrait-style photographs. Goldsmith licensed one of those portraits to Vanity Fair “as an artist reference” on a one-time basis for a Warhol silkscreen. Not surprisingly, the first silkscreen of Prince was purple. Warhol surreptitiously created 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”) as an illustration for a retrospective on this great artist. Upon discovering this unauthorized work, Goldsmith sent a letter to the AWF; AWF filed for a declaratory judgment; the dispute ultimately landed before the Supreme Court.
SCOTUS began by emphasizing that its decision concerned only the first factor of a fair use analysis, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” The decision purports to answer “whether and to what extent the use at issue has a purpose or character different from the original.”
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” of the copyrighted material. SCOTUS reduced both Goldsmith’s and AWF’s 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. Also, just about 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 than what could constitute fair use in a not-for-profit setting. If not different enough in a commercial setting, must the specific commercial uses be identical? How will the court broaden and narrow the definition of “use” in future cases?
Until we have more case law specifically on “use,” AWF v. Goldsmith serves as a reminder of why lawyers are apprehensive about giving clients a quick gut reaction on fair use questions.