Thread by @michaelkasdan

The SCOTUS today handed down its long-awaited decision in the Warhol Foundation vs Goldsmith copyright infringement case involving Warhol’s Prince series based on Goldsmiths photo re the boundaries of fair use and when a work is an infringement vs a transformative use.

TLDR:

The Supreme Court ruled for Goldsmith and against Warhol, holding that this was NOT fair use and not transformative.

Warhol’s argument that the silk- screen image of the photograph was transformative because it “has a different meaning or message” was rejected.

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Note:

Only one of the four fair use factors - the purpose and character of the use - was at issue on appeal and before the SCOTUS in this case.
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This “copyright case involving not one, but two artists,” was a 7-2 decision, with the majority authored by Sotomayor. Kagan authored a quite scathing dissent which was joined by Roberts.
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The facts are pretty well known. Goldsmith photographed Prince. Warhol did a silkscreen for Vanity Fair using the photo as a starting point. And later others. Goldsmith found out and said “infringement.” Warhol Foundation sued arguing fair use and that it was transformative.
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Warhol (basically):

“Dude. I’m Andy Warhol. If I did it I transformed it. That’s my jam. Soup cans. Bananas. Marilyn. You get me.”

Goldsmith & the Majority:

“But um if everything an artist touches is transformed doesn’t fair use swallow up infringement by derivative work!?”
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Justice Sotomayor’s recitation of the facts emphasized that both Warhol and Goldsmith were in the business of licensing their works - including works featuring Prince - to magazines, i.e., the market for the original copyrighted image and the work at issue were the same.
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Stop! Procedural History time 🙌 What happened below?

The District Court ruled in favor of Warhol on fair use on summary judgment. On the 1st fair use factor it found Warhol’s work was transformative. He made it “a Warhol.” It also found the 3rd/4th factors favored Warhol 👀
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On appeal, the Second Circuit reversed, finding all four fair use factors favored Goldsmith. On transformative use the appeals court rejected that transforming it to “a Warhol” made it fair use requiring something more than “the imposition of another artist’s style.”
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The question at issue on cert:

Even though the works are “substantially similar,” “The question here is whether AWF can defend against a claim of copyright infringement because it made "fair use" of Goldsmith's photograph. 17
U.S. C. §107.

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And the only aspect of the Second Circuit ruling that Warhol challenged was its analysis of the first factor:

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On that issue, the majority opinion found the Second Circuit got it right and Warhol’s work was NOT transformative.

But the reasoning for this seems to be based not so much in the expression of the work itself but in the “use” or market for the work:

Licensing to mags.

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As @brianlfrye summarizes:

While we are at it, here is one more take on how focusing on *market harm* rather than expressive meaning could be .. not so bad … for many fair use defendants. Thanks 🙏 @CJSprigman @brianlfrye

And back to the opinion!

Fair use is all about striking the right balance.

And some are more concerned with protecting the original creator (copyright maxis?) while others are far more concerned with the rights of other artists.

/14 twitter.com/i/web/status/1…

The Court acknowledged that there will be tough cases & that this is a “matter of degree.” It depends on whether the purpose and character of the use is different than the original. Even if the secondary use adds something new that alone doesn’t necessarily render it “fair.”

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In considering the right balance, the Majority was clearly concerned with adopting a conception of fair use that was so broad that it would drive a truck through what could be considered to be copyright infringement. If everything is “fair,” what is infringing?

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Meanwhile, I’m clearly tweeting this out wayyyy too slowly. Some people go on CNN. Others do long slow threads on Twitter. 😂 🤷‍♂️ (This is me joking, by the way. Paul did a great job.)

...

The Majority focuses on the USE (it's not "fair creation" or "fair art" - its "fair USE"), asking was it commercial & whether the secondary work & original use share the same purpose...and found both uses to be in the "same environment" - i.e., a magazine about Prince.

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We will get to the dissent in a bit, but salty footnote 11 here, shows that the dissent was on the Majority's mind perhaps a bit more than usual...

"Fortunately, the dissent’s “magazine editor” test does not have much of a future in fair use doctrine."

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The Kagan Dissent quips that "the fact that a magazine editor might prefer one image to the other must mean the secondary use is transformative, either because it has a different aesthetic or conveys a different message."

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Sotomayer disagrees, arguing that would mean every derivative work would qualify as a fair use. (i.e., the exception would swallow the rule)

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Because Goldsmith's photograph & Warhol's 2016 licensing of Orange Prince "(a) share substantially the same purpose, and (b) the use was of a commercial nature—counsel against fair use, absent some other justification for copying," which did not exist here.

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However, that this does NOT mean "that derivative works borrowing heavily from an original cannot be fair use," citing the example from the Google case of a use/purpose of making artistic comment about consumerism, as Warhol's Campbell Soup Cans did, rather than to sell soup.
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This case, however, is different:

"Not all of Warhol’s works, nor all uses of them, give
rise to the same fair use analysis."

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"To hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals."
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"As long as the user somehow portrays the subject of the photo graph differently, he could make modest alterations to the original, sell it to an outlet to accompany a story about the subject, and claim transformative use."

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The dissent (more on that below) claims this will stifle creativity and artistic expression.

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The majority's view is that "It will not impoverish our world to require AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work"
Nor will the Court’s decision "snuff out the light of Western civilization, returning us to the Dark Ages."

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Elena Kagan super disagrees.

The Dissent: "You've probably heard of Andy Warhol..."

"Today, the Court declares that Andy Warhol’s eye-popping silkscreen of Prince—a work based on but dramatically altering an existing photograph—is (in copyright lingo) not “transformative.”
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The Kagan Dissent - Point No. 2:

"Still more, the Court decides that even if Warhol’s portrait were transformative—even if its expression and meaning were worlds away from the photo—that fact would not matter."

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The Kagan Dissent minces no words in its criticism of the majority opinion for focusing its analysis of what is “transformative” not on the “distinctiveness and newness” but on “a marketing decision.”

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To the Majority this focus on the market and business use/purpose is a feature - not a bug.

To the dissent, it wrongly disregards what the second artist added or changed. And is a big change in the law of fair use. (This last part is certainly true).

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And the dissent is concerned that this new focus in the fair use analysis on the business use / purpose and away from the nature of the transformation is bad for creativity in that it gives too much power to original creators and less to future artists who riff off them.

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I appreciate the focus on this issue / concern.

But as others have noted (cited above & in this piece below), I’m not sure that the majority’s approach provides less “breathing room” for “fair use” though it definitively does shift the analysis.

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creativecommons.org/2023/05/18/war…

IMO, the benefits of the majority test is that it provides a more bright line / rigorous framework for analysis and smartly side-steps the thorny issue of having courts examining art and deciding what is and what is not “transformative enough.” That would be a losing game.
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But I do understand the criticism that this is a new/ different test & in a world where artists copy/borrow/remix to create, it weights against fair use when defendants use has substantially the same purpose unless there is a “compelling justification for copying”

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And what if a new work of art is such a massively transformative work but its use is in a similar commercial field, what then under the new test? Can this still be a fair use? Should it be?

Perhaps it’s ok b/c that’s just not an infringement b/c not “substantially similar”

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The remainder of the dissent is a great read.

supremecourt.gov/opinions/22pdf…

It does a deep dive into Warhol’s creative process and illustrates why he is considered to be “the avatar of transformative copying.”
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It also uses the examples of reclining nudes to try to make a point about why protecting transformative works through fair use is critical to protecting art.

*I understand this may well be the first bits of color nudity to make it into a SCOTUS decision. Brava!

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The Kagan dissent concludes with a strong statement that providing less of a berth for transformative art is definitively a bad thing.
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IMO, I’m not sure that *less* of a berth is what’s provided by the majority opinion.

But it is a different berth and there will be differences at the margins of fair use.

This was a tough case on the facts. And it was an interesting and thoughtful decision.

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The feisty 🔥 debate b/w the majority and dissent in this case illustrates how difficult but important an issue this case raised, an issue that cuts directly at the purpose of copyright law and fair use and where the line is between infringement (bad!) and fair use (good!)
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It will be interesting to see how the lower courts apply this test. And it surely will not be the last word on "fair use" by SCOTUS. Though it might be for a while, since its been 30 years since the last one in 2v Live Crew!

en.wikipedia.org/wiki/Campbell_…
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In closing, if you've made it this far, thank you for reading!! Hope this was useful and interesting :)

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/END

NB: One lingering question:

Am I wrong to question the courts open/shut analysis under the majority’s own test regarding overlapping commercial purpose/use?

In other words, were Goldsmith and Warhol really competing in the same pool? Isn’t it more likely, that instead of saying “get me a picture of Prince” to caption this cover story, they said “Get me a Warhol!”  And should that matter in the fair use analysis?