In 1981, Lynn Goldsmith took a photograph of the musician Prince, whose celebrity was ascendant after the success of the single “I Wanna Be Your Lover” and the release of his third album, “Dirty Mind.” Goldsmith’s black-and-white image, commissioned for a Newsweek story, was never published. A few years later, another magazine licensed the photograph for use in a work by pop artist Andy Warhol. After he completed that piece, Warhol continued to incorporate a cropped and edited version of Goldsmith’s photo into a series of additional works about Prince — not unlike the colorful, and perhaps better-known, portraits he produced of Marilyn Monroe.
Goldsmith has said she first became aware of the Warhol series when Vanity Fair published an image of one of the pieces in 2016. Fearing a lawsuit, the Andy Warhol Foundation preemptively sued Goldsmith, seeking to have the Prince series deemed “fair use.” Applying the Copyright Act’s four-factor test, the District Court for the Southern District of New York agreed that Warhol’s use was protected. But the United States Court of Appeals for the Second Circuit reversed, finding that the Warhol pieces were not “transformative” enough of the original photo, and rejecting the foundation’s argument that it should consider the differing meanings of the two works in its analysis.
The case, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, which the Supreme Court of the United States will hear on October 12, has important implications for artists, musicians, and other creatives who use and build on existing media, but its impact may be felt even more widely. For example, in a friend of the court brief, Kyle K. Courtney, a copyright advisor for Harvard University and co-founder of Fair Use Week, urged the justices to consider the impact of their decision on libraries, archives, and other cultural institutions that collect and store such materials.
Harvard Law School Professor Rebecca Tushnet also submitted an amicus brief, signed by 11 additional copyright law professors, in favor of the Warhol Foundation’s broader view of fair use. The Second Circuit should have considered what the Warhol series meant to convey, she wrote, “because there is often no other way to evaluate transformativeness than to look at the meaning of the contending works.”
In an interview with Harvard Law Today, Tushnet, the Frank Stanton Professor of the First Amendment, explains the purpose of fair use, why Warhol’s use should qualify — and how the Supreme Court’s decision could alter the arts in America.
Harvard Law Today: What is fair use? Why does it exist within copyright law?
Rebecca Tushnet: Copyrights have never been pure monopoly rights. Everyone has always understood that it is important to be able to interact with copyrighted works as part of our world, including commenting on and reacting to them, and in certain circumstances, riffing on them. Fair use exists to be a flexible method of dealing with the inevitable points where a very broad interpretation of the law would interfere with valuable social activities for no good reason.
HLT: What are the four factors the Warhol Foundation needs to satisfy in order for the series to qualify for fair use?
Tushnet: The factors are: Is it transformative in the sense that it provides new insights, a new meaning and message compared to the original work? Then, what kind of work is it — is it a commercial work? How much of the original did the use take, and was it reasonable in light of the purpose? And finally, what is the effect on the market for the copyrighted work? Unlike some other legal tests, fair use is actually a balancing test. It is possible, and in fact common, for some factors to point in one direction and the others to point in the other. So we have to ask, which is the most important in a particular context?
In this case, the key question is about transformation. When Andy Warhol turns a standard portrait photo into one of his celebrity portraits — which are very stylized and colorized, and repeated to make a commentary on the ubiquity of the celebrity image and the way in which celebrities become larger than life — is that sufficiently transformative to be fair use?
HLT: What arguments does Goldsmith make about why the series should not qualify for fair use?
Tushnet: Goldsmith’s argument is that it doesn’t matter whether Warhol created something with a different meaning, because he started with her picture, and she should be able to license the creation of artworks based on her picture. She argues that there is a legitimate licensing market for reference works for artists, and that Warhol should have paid for that.
In reversing the district court, the Second Circuit argues that courts should not take into consideration the meaning of the works in contention — that any such analysis would be inherently subjective. You do not find this persuasive. Why?
Tushnet: I don’t think the Second Circuit can be right on this. That is, the Second Circuit said: ‘It doesn’t really matter whether work is parodic, or comments on the original, because we shouldn’t look at its meaning.’ But of course, if you don’t look at meaning, then you can’t figure out what the use is doing, which is the core of the inquiry about whether this is a use that on balance should be allowed without permission.
For example, when you see a picture from a movie in a movie review, it matters that it is a movie review, and not an ad for a costume that is worn in the movie. Here, the Second Circuit really distorted the analysis that the Supreme Court has already set out, which says you have to consider meaning and message. As I said before, these are not the only things you have to consider — there are uses that might have a different meaning and message, but nonetheless are not fair use for various reasons, because for example, they use too much of the original, or they don’t have a different enough meaning to avoid a negative market effect. But the Second Circuit’s approach can’t be right here.
HLT: How will the Court think through this case? What precedents will it consider?
Tushnet: I hope they will think through this case by agreeing with our amicus brief, that the Second Circuit erred in these particular ways, and that really harmed the rest of its analysis. There are two key precedents that I expect people to talk about. There is a case called Campbell v. Acuff-Rose, about a parody of the song “Oh, Pretty Woman” by 2 Live Crew, where the Supreme Court adopted the transformativeness test. And then from two years ago, Google v. Oracle, where the Supreme Court reinstated a jury verdict finding that Google’s reuse of elements of the Java programming environment were a fair use. That is a somewhat different situation, but the Court made clear that it was still interested in transformativeness. And hopefully, that will continue.
HLT: It seems clear that if the Warhol Foundation wins, it will continue with business as usual. What happens if Goldsmith wins?
Tushnet: I don’t like to speculate because depending on what the Supreme Court does, it could be terrible and a whole bunch of fair uses could be put under threat. Or it could say that this specific case loses because of very specific reasons, while keeping the larger structure of fair use basically the same. But it would be foolish to opine on which of these – or neither – would happen.
HLT: The internet and digital tools would seem to allow for even more instances of creative borrowing and transformation in the modern era. What kind of impact would this case have on creative culture moving forward?
Tushnet: The digital environment is now over 20 years old – there are many cases dealing with the digital environment. In fact, it’s actually interesting that this case is about an artist whose work is 50 years old, and that this isn’t a digital age case. This, unlike the aforementioned Google case, is actually about the core of what counts as “commentary.”
One of the ironies of the situation is that there are many people who take the position that fair use has gone way too far – that courts shouldn’t be finding stuff to be transformative in the way that they’re doing – but most of them also hate the big tech cases, the many cases Google has won over the years. It would be ironic, and I think pretty sad, if what we ended up with was that Google still wins all its fair use cases, but individual artists lose theirs. But if the Supreme Court affirms the Second Circuit here, then that’s what we’re looking at.