Copyright on Trial: Will the Supreme Court crack down on fair use?

It’s no laughing matter for student journalists.

Commenting on the Supreme Court case Warhol v. Goldsmith is Robert Bertsche, a member of the Student Press Law Center’s Attorney Referral Network. Bertsche wrote his first amicus curiae brief for SPLC twenty-five years ago. A media and First Amendment lawyer who represents some of the nation’s largest media outlets, Bertsche engages in litigation, counseling, and prepublication review from the Boston location of Klaris Law

By the end of this Supreme Court’s term, we’re going to have a different — and, I predict, stricter — test for determining when the unlicensed reproduction of another’s work of art counts as a “fair use” instead of copyright infringement. 

That could be a big deal for student newspapers and student artists, which often rely on fair use to provide them with access to a world of creative content they couldn’t possibly afford to license. Sometimes they knowingly invoke the doctrine when illustrating a news story or critiquing creative output. Other times, they frantically turn to the doctrine for shelter after they’ve received a scary letter claiming copyright infringement. Either way, fair use is a student journalist’s friend.  And it may soon become more difficult to establish.  

That’s my conclusion, at least, based on last week’s rollicking Supreme Court argument in the case of Andy Warhol Foundation v. Goldsmith.

The case involves the famed visual artist’s creation of a series of silkscreen prints and pencil illustrations of the musician Prince, and the licensing of one by his foundation as a magazine cover. Two facts are undisputed: Warhol based the paintings on a photograph by renowned celebrity photographer Lynn Goldsmith, which he used as a reference work for a legitimately licensed work (a 1984 Vanity Fair cover); and the message conveyed by the two parties’ respective works was noticeably different: Goldsmith conveyed a vulnerable, uncomfortable young musician; Warhol made a statement about the impact of commercial fame. 

And a third fact: Goldsmith was steamed when she learned in 2016 that Warhol had not only made multiple works based on the first license, but his foundation had also licensed one of those works to Condé Nast for another cover. She said they had infringed her copyright in her photograph by creating and licensing his works, which were based on her photo, without her permission. Therefrom grows a lawsuit.

A federal court in New York said the works were “fair use” because Warhol had so transformed the copyrighted photo as to imbue it with “new meaning and message.” The Second Circuit Court of Appeals reversed, saying that federal judges aren’t qualified to assess the meaning or message to be drawn from any given piece of art — and Warhol had infringed on Goldsmith’s rights. The copyright world erupted, and the Supreme Court took the case. 

Because of all that is at stake, last week’s Supreme Court argument was widely anticipated. Indeed, no fewer than three dozen groups filed friend-of-the-court briefs, from documentary filmmakers, artists, and the Brooklyn Museum (for Warhol) … to Dr. Seuss, the American Society of Media Photographers, and no less than (drumroll please) the U.S. Copyright Office (for Goldsmith) … to the Authors Guild (for, well, something in-between). 

The nearly two-hour session did not disappoint. For entertainment value, at least, it was one of the Court’s finest performances:

  • The once-reticent Justice Thomas played a starring role, with Justice Kagan stepping up as his “straight man” and Justice Sotomayor offering to be his lawyer. (Did you know he is a closet Prince fan, “only on Thursdays”?) 
  • Justice Alito archly parroted Goldsmith’s counsel’s use of the verb “yakking” to describe the august rhetoric of the Second Circuit Court of Appeals.
  • Arguments over high principles of art law descended into discussions of “All in the Family,” “The Jeffersons,” and “Happy Days.”  (Clearly, this is no longer the court of Antonin Scalia and Ruth Bader Ginsburg.)
  • Goldsmith’s lawyer lamented that “Norman Lear would be turning over in his grave right now” — which might be true, were it not for the fact that the 100-year-old is still very much alive and kicking.

Amidst all the good humor, one just might overlook that a major principle of U.S. copyright law — one that offers vast protections for authors, artists, and their audiences — could be upended when the court issues its decision in the case. 

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Before I go further, I should offer a side note of importance to student journalists. Very often the fair use question arises in the context of a new work that directly comments on a pre-existing work: the book review that discusses a brief passage and displays a small replica of the book cover; the Instagram that discusses a copyrighted performance gone viral, and includes a few seconds of the show; the parody that necessarily incorporates portions of the work being targeted. There, the comment is about the targeted work. That’s classic fair use, so long as not too much and not too substantial a part of the original is used. However the court decides this case, that aspect of fair use law is unlikely to change.

Warhol involves a harder case: a new work that is not commenting on the targeted work but is making an entirely different statement. Warhol was not commenting about or criticizing Goldsmith’s photograph. Rather, his silkscreens were making an external comment, one about the nature of celebrity and commercialization.

The debate at the heart of this case has to do with the first of the four factors of the fair use test contained in the Copyright Act. Section 107 says that a work of criticism, comment, news reporting, teaching, scholarship, or the like — even if it would otherwise be deemed a copyright infringement — will nonetheless be permitted if it is “fair.” 

Fairness is determined with reference to four factors. They are, briefly: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) how much and how substantial a portion of the original work is used; and (4) how much the market for the original is affected. 

Nowadays, the first factor is considered the most important, and has increasingly been restated as a quest to determine whether the original has been “transformed” to such an extent as to convey a “further purpose or different character, altering the first with new expression, meaning, or message.” The Second Circuit’s decision would have the first factor, when applied to works of visual art, focus instead on purpose as disclosed by the visual similarity of the two works. 

Critics of the Second Circuit’s ruling, including the Warhol Foundation, believe that if adopted by the Supremes, it would stifle the art world by preventing artists from creating — and disabling museums, galleries, and collectors from showing or selling — artworks containing appropriated elements, a style common not only in contemporary art but also in digital and social media. 

Those favoring the Second Circuit’s ruling—which would focus on “recognizability” — say that any other outcome poses an “existential threat” to photographers, favoring “copycats” over copyright holders, and is inconsistent with copyright protection for derivative works such as book-to-movie adaptations, which are routinely licensed. If Spielberg and Hendrix have to get licenses to create their films and music, they ask, why can’t Warhol be required to do the same for his art? 

How will this story end? Because fools rush in where wise lawyers fear to tread, I’ll take the plunge. I predict a Supreme Court ruling that makes neither side entirely happy, but that closes the gates to fair use to at least some degree. (We may now be living in the heyday of fair use.) The Court won’t eliminate the need for filmmakers to get licenses when their story is based on a novel. The market for derivative works will be preserved, and perhaps clarified. When evaluating whether a new work is fair use, changes in “meaning and message” will be a factor that matters, but will not be dispositive. Courts will be instructed to scrutinize the question of why a particular work was targeted for infringement, and whether the choice of that work was “necessary or useful.” The case will continue as the federal courts in New York apply the Supreme Court’s new guidelines.

And we will all continue to scratch our heads and cross our fingers when we make decisions in the murky realm of fair use.