Oral arguments in Andy Warhol Foundation v. Lynn Goldsmith are scheduled for October 12, marking the second time in as many years the Supreme Court will hear a fair use case. Unlike Google v. Oracle, which resulted in a fair use determination that was limited to a specific type of software code, the Warhol case could have a wide-ranging impact on the fair use doctrine and what it means for a work to be transformative. Of course, given the narrow question presented, the Court may choose to remand the case to the Second Circuit without issuing any groundbreaking transformative use opinion.
Regardless, industry associations, law professors, artist organizations, the U.S. government, and many others submitted amicus briefs over the last two months hoping to educate, influence, and inform the Court. Most recently, twenty amicus briefs were filed in support of the respondent, photographer Lynn Goldsmith, bringing to end a busy briefing period. After reviewing all thirty-seven briefs, some common arguments and themes stand out that reveal Andy Warhol Foundation’s (AWF) untenable position on transformative use. Below are a few key takeaways:
- AWF and its amici promote a misguided test for transformative use that has no foundation in the Copyright Act.
- Amicus briefs filed neutrally and in support of Goldsmith explain that court-created, overbroad interpretations of the transformative use doctrine override copyright owners’ express statutory right to prepare derivative works.
- Many of the briefs warn against subjective assessments of what constitutes transformative use and instead urge for the adoption of a test based on how a work is reasonably perceived by an objective observer.
- A diverse range of amici detail the widespread harm AWF’s test would have on licensing markets if adopted.
Briefs in Support of Goldsmith Form a United Front Against AWF
A diverse range of amici filing briefs in support of Goldsmith include individual creators, law professors, artists’ rights groups, legal organizations, creative industry associations, a U.S. Senator, the U.S. government, and many others. The briefs touch on various issues, but they all reject AWF’s transformative use test as having no support in the law.
Many of the amicus briefs were filed by individual photographers or photographer organizations like the American Society of Media Photographers (ASMP). ASMP’s brief is quick to point out the highly artistic, expressive nature of Goldsmith’s photos (and of photography in general) and how appropriation art must comment on the underlying work in order to demonstrate a different character and purpose under the first fair use factor. Jeff Sedlik, a professional photographer and copyright expert, submitted a brief that warns that AWF’s boundless interpretation of fair use poses an existential threat to the business of photography, as it would lead to a flood of unlicensed derivative uses and “further the urban myth that photographs are free for the taking.”
Joining the photographers in their concern for the survival of licensing markets and the right to prepare derivative works are the Association of American Publishers (AAP), the Recording Industry Association of American (RIAA), and the National Music Publishers’ Association (NMPA). AAP’s brief explains that publishers rely on the derivative use right “not only to invest in and distribute as many original works as possible, but also to undertake the operational costs associated with bringing those works to the market,” which ultimately leads to the furtherance of more voices and free expression. Outlining the harm to the music industry that would result from the adoption of AWF’s broad test, the RIAA and NMPA brief warns that the robust licensing market for secondary use of sound recordings (or sampling) would shift to a misappropriation free-for-all and “make obtaining and paying for licenses for numerous uses of copyrighted sound recordings, compositions, and other works unnecessary.”
Four different briefs were filed by copyright law professors in support of Goldsmith, many of which detail how vague notions of transformative use have come to dominate fair use analyses in recent years. A brief filed by Professors Peter Menell, Jane Ginsburg, and Shyam Balganesh explains that courts have gone too far and “substituted amorphous ‘transformativeness’ inquiry for the statutory framework and factors that Congress and Campbell prescribe.” Similar to the suggestion made in the Copyright Alliance brief, the professors’ brief proposes a “sliding scale for calibrating the degree of transformativeness against other statutory considerations.” This sliding scale or spectrum approach would, among other things, look to whether a transformative use has a commercial purpose and the extent to which the transformative use affects existing or potential future markets. This re-focusing on the 4th factor is something many amici urge the Court the court to do, as it would reduce the undue weight courts have afforded to transformative use under the first factor and return to the balanced four-factor test that Congress intended.
Highlighting the importance of licensing markets under the fourth factor, a brief by Professor Guy Rub explains that “the creation of new works for commercial purposes, which are substantially similar to existing copyright-protected works, should typically not be considered fair if a license that permits such use is offered by the copyright owner, is readily available, but never sought and secured.” According to Professor Rub, allowing unlicensed uses when there is merely added meaning or message would “undermine a core building block of multiple creative industries” by rending licensing markets obsolete. This concern is shared by Professor Philippa Loengard, whose brief warns that focusing exclusively on meaning or message means that almost any transformation can be argued to have changed an artwork’s meaning and threaten to decimate an artist’s statutory derivative work right.
Another brief, submitted by copyright and art law professor Terry Kogan, focuses on the objective versus subjective transformative use test that many other amici touch on. Kogan insists that a transformative analysis must only assess objective, verifiable evidence based on “perceivable attributes and common understandings of the artworks in issue.” AWF’s test which only looks to meaning or message, according to Kogan, invites subjective opinions of individuals and should never be dispositive of transformative use or fair use. Kogan also makes an important point that comes up in many of the briefs: the notion that because Warhol’s prints are “recognizable as a Warhol” they should be considered transformative runs contrary to legal principles. There is not, and should not be, a celebrity infringer exception to copyright laws, and the status or fame of the alleged infringer should never factor into an assessment of the secondary work’s value.
Rounding out the copyright scholars’ support for Goldsmith is a brief by Professor Zvi Rosen, which provides a detailed history of the development of the statutory fair use factors and the right to prepare derivative works. Professor Rosen traces the evolution of the derivative use right from its origins in mid-nineteenth century treatises and the Copyright Acts of 1870 and 1909, up to its formalization (along with the fair use doctrine) leading up to the 1976 Act. The brief explains that since the 1976 Act, expanding theories of transformative use threaten to overwhelm the statutory text. Professor Rosen urges that the Second Circuit’s decision be affirmed, as it is reflective of the historical background and represents a straightforward application of the four fair use factors.
Senator Marsha Blackburn (R-TN), a constant supporter of creators’ rights, filed a brief in support of Goldsmith that focuses on Congress’s intent in drafting the Copyright Act, which is “principally designed to protect an artist’s right against improper copying or imitation.” Pointing out that the text of Section 107 makes no reference to meaning or message, Senator Blackburn’s brief warns that AWF’s overbroad transformative use test ignores factor one’s consideration of whether a use is commercial and negates the fourth factor. The brief, like many others, urges a return to a holistic four factor analysis that protects the rights of all creators.
Picking up on a theme of many briefs in support of Goldsmith, the U.S. government—with the support of the U.S. Copyright Office—filed a brief warning that treating “purported new meaning and message as sufficient under Section 107(1) would dramatically expand the scope of fair use.” It explains that, by eliminating licensing opportunities, AWF’s proposed rule would seriously diminish the ability of Goldsmith and other photographers and creators to reap the rewards of their own expression. The brief then refutes a key mischaracterization AWF makes regarding the Second Circuit’s decision—that a work cannot be transformative if the essential elements of its source material remain recognizable. This distortion of the Second Circuit’s ruling is something that AWF’s amici have also tried to promulgate in an attempt to categorize the holding as restrictive of fair uses and free speech. But the government’s brief discredits that position, explaining that Second Circuit found that the problem was not simply that the essential elements of the Goldsmith photograph were recognizable, but that AWF used those elements for the same purpose as in the Goldsmith photograph itself.
The government’s brief concludes by rejecting AWF’s attempt to raise First Amendment concerns, explaining that “a user of a copyrighted work has no First Amendment right to exploit another’s expression.” In the government’s view, the public value tied to the dissemination of works of appropriation does not entitle the appropriator to use another’s work “without paying the fair price.” This reference to licensing is a critical point made by many amici, and it’s one that reflects the need for a full four-factor analysis that is not overridden by expansive notions of transformative use.
Neutral Briefs Focus on a Correct Interpretation of the Narrow Question Presented
Eight briefs, including the Copyright Alliance’s, were filed neutrally. Rather than try to directly weigh in on whether AWF’s appropriation qualifies as fair use, these briefs seek to educate the Court on a proper interpretation of the Copyright Act, and many propose alternate tests or standards for determining transformative use. The Copyright Alliance brief, which I recently summarized in detail, sets out guidelines a court should follow in a transformative use analysis that would preserve a copyright owner’s right to prepare derivative works and serve the foundational copyright goals of promoting the progress of the sciences and useful arts.
Expanding on a critical point made by many amici, the Authors Guild’s brief stresses that a transformative use analysis cannot replace a full four factor fair use analysis, lest it “dilute derivative-work rights and distort and expand fair use into an uncontrollable gaping hole in copyright protection.” Another key theme in the Authors Guild’s brief is the scope and degree of authors’ reliance on their derivative works right and how AWF’s proposed standard would effectively nullify that right, resulting in loss of revenue for authors and publishers. Finally, the brief proposes a transformative use test that, rather than ask whether a secondary work is recognizably derived from the original, instead focuses on whether the value of the secondary work derives from the entertainment and aesthetic value of the original. Such a determination, the brief explains, should not turn on a judge’s or critic’s assessment, but rather how such value is “reasonably perceived.”
Library Futures, an organization founded to push the agenda of copyright skeptics, submitted a neutral brief that immediately mischaracterizes fair use as a “right,” rather than a statutory exception to a copyright owner’s rights. The brief asks the Court not to undermine the last twenty-five years of transformative use jurisprudence—the same jurisprudence that is increasingly recognized by courts, commentators, and stakeholders as having swung the pendulum so far that the derivative use right has been all but erased. The brief claims that the Second Circuit’s decision threatens the ability of libraries and archives to display works “from well-known artists who adapt source material in a way that changes its meaning and message, while leaving the source material recognizable.” But the brief chooses to ignore that such displays, by a qualified library or archive, would almost certainly be permitted through either a full four-factor fair use analysis or the exceptions for libraries found in section 108 of the Copyright Act.
Countering the views of AWF and its amici are neutral briefs from the Motion Picture Association (MPA) and the American Intellectual Property Law Association (AIPLA). MPA’s brief makes clear that there’s no support in the Copyright Act (or elsewhere) for AWF’s interpretation of transformative use, which reflects a greater trend towards a “freestanding, amorphous concept untethered from both the text of Section 107 and the common-law principles that provision codified.” It urges the Court to clarify the scope of transformative use in a way that ensures the effectiveness of the derivative work right, which protects paradigmatic categories of secondary uses in the film industry: spinoffs and sequels. AIPLA’s brief also discusses the undue influence transformative use now has in fair use determinations, citing to empirical data that shows that when a court determines a use is transformative, it finds in favor of fair use 94% of the time. Like many others, the AIPLA brief urges the Court to clarify that work’s purpose or meaning must be determined based on the reasonable perception of that work and cannot depend solely on the subjective opinions of individuals.
Briefs in Support of AWF Miss the Mark (and Misstate the Law)
The nine briefs filed in support of AWF come from some usual suspects—organizations and professors who routinely advocate for weaker copyright laws—as well as appropriators of copyrighted works who would prefer broader fair use exceptions. The problem with nearly all the briefs is that they misrepresent the Second Circuit’s opinion and support AWF’s misguided position that a work qualifies as transformative under the first fair use factor if it merely adds a “new meaning or message.”
For example, a brief by art law professors claims that the Second Circuit held that visual works that are facially similar can never differ in their purpose and can never convey a different expression, meaning or message. However, the Second Circuit’s opinion contains no such absolutisms. Instead, it makes clear that new meaning or message cannot be based on the subjective assessment of an artist, critic, or judge.
An appropriation artists’ brief claims that modern art practices require a broad interpretation of different meaning or message, and that anything less would chill creative expression. It also argues against any “visual-similarity” analysis for infringement disputes surrounding photographs, claiming that all art that incorporates preexisting images would be found infringing. However, their arguments ignore the fact that alleged infringers can still raise a fair use defense even if works are found substantially similar, particularly for the educational uses the amici believe will be threatened.
Indeed, the Authors Alliance brief makes this very point when it says “Goldsmith may have made out a prima facie case that the Warhol works infringed the derivative work right because they were substantially similar to the Goldsmith photograph, but the fair use defense remains available under this Court’s rulings.” (emphasis added). However, like many of AWF’s amici, the Authors Alliance erroneously claims that the Second Circuit held that a work found to be an infringing derivative can never qualify as a fair use. Their brief also tries to argue the Second Circuit’s holding conflicts with the Supreme Court’s Google v. Oracle decision, which held that Google’s “highly creative and innovative” use of Oracle’s API qualified as fair use. Whether AWF’s use of Goldsmith’s work is “highly creative and innovative” is debatable, but regardless, the Supreme Court could not have been clearer about the limited applicability of its decision in Google.
Another brief, filed by a group of law professors, proposes a test that at first glance seems to move towards a more objective and reasonable standard by leaving the determination of what the new meaning or message is up to a “reasonable audience.” But “reasonable audience” or, as the Authors Alliance brief suggests, “relevant artistic community” is a slippery slope that moves away from a purely objective observer standard and back towards the subjective assessment of whether there is a new meaning or message from the point of view of a particular group. It’s not hard to imagine an alleged infringer like AWF presenting a court with the expert opinions of hand-picked, likeminded “experts” who it claims represent a relevant audience or artistic community.
Not surprisingly, the Electronic Frontier Foundation filed a brief making absurd claims about copyright being “weaponized” against free speech. It’s not worth responding their tired anti-copyright talking points in this blog, which we recently addressed here, but suffice it to say that First Amendment safeguards remain an integral part of fair use analyses. A rejection of AWF’s overbroad transformative use test will not change that.
The diverse range of individuals and organizations—including creators, lawyers, government officials, and professors whose interests lie in the proper application of the law—that filed briefs expressly rejecting AWF and its amici’s arguments is telling. There’s consensus among many of these amici that the question presented in AWF’s petition misrepresents the Second Circuit’s decision and promotes an untenable transformative use test that would swallow a copyright owner’s right to prepare derivative works. And while AWF is not without its own supporters, they’re comprised of groups whose arguments have no basis in the statute and do not further the fundamental goals copyright law. Hopefully the Supreme Court recognizes as much and hands down a sensible and sustainable transformative use decision.
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