Note about this Post
On March 28, 2022, the Supreme Court agreed to review the Second Circuit's decision that Andy Warhol did not make fair use of a photograph of Prince taken by Lynn Goldsmith. This post explains the Second Circuit's decision and the law leading up to it.
The argument is scheduled for October 12, 2022. The briefs of the parties and friends of the Court can be found on the docket.
Fair use is the most significant limitation on a creator's copyright. It is the privilege to use the creative work of another in a limited way without asking permission. Knowing when a use is fair, or not, is a particular challenge in copyright law and in a creative's practice. It would be nice to have clear fair use guidelines that allow creators avoid infringing the work of others or wrongly accusing another of infringement.
The recent decision rejecting the Andy Warhol Foundation's use of photographer Lynn Goldsmith's work offers the creative community some traction to get out of the muddy quagmire of earlier court rulings. In the wake of this decision with its slightly clearer fair use guidelines, the rights of original creators will be strengthened and the fair use defense narrowed.
Rules? They're More Like Guidelines
Much like the Pirate Code in Pirates of the Caribbean, there's no bright line when it comes to fair use. There’s no mathematical formula that you can apply to determine when a particular use is fair under the copyright law. You can’t say, “Well, I used less than 20% of the work, so that was fair” or “I only took three minutes of that video, so that was fair.”
In a case that went up to the Supreme Court involving former President Gerald Ford’s unpublished memoirs, the Court decided that when a magazine published only 300 words from a book-length memoir having to do with Nixon’s pardon, it was not fair use.
There are simply no hard and fast rules. Every case or instance has to be handled individually. Sometimes it just gets down to which judge is assigned to your case in which federal circuit. Because of that, there are countless court decisions applying the fair use provisions of the U.S. Code resulting in conflicting outcomes. The wild variety of decisions can be explored using the Fair Use Index managed by the Copyright Office.
There's Nothing New Under the Sun
The concept of fair use existed before it was included in the U.S. Copyright Statute. Judges embraced the idea that there really is nothing new under the sun; that all literature, art, and science, must borrow from what came before. Eventually, fair use was written into the statute. Here's how Congress accommodated fair use in 1976:
Notwithstanding the [the exclusive rights reserved to copyright owners], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The Benchmark of Fair Use: Transformation
For the past 25 or more years, the first factor, the purpose and character of the use, has been the most important factor to consider in the fair use analysis. This is because of a Supreme Court decision that said, "[The test is to see whether the new work is just a substitute for the original work or] “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative."” That quote is from the 1994 Supreme Court case titled Campbell v. Acuff–Rose Music, Inc.
With that, transformation became the litmus test for fair use.
But it is not a particularly useful test. In fact, attempting to find transformative use involves outright circular reasoning. Here's why:
One of the exclusive rights that belongs to an owner of copyright is the right to make derivatives of their work. A “derivative work” is defined as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted."
On one hand, the Supreme Court tells us that transformation is fair use and not infringement of the copyright owner's original work. But on the other hand, the Copyright Act uses the word "transformed" in the definition of a derivative work and only the copyright owner has the exclusive right to transform their original work.
So, who has the right to transform the work?
It's enough to make you scream in your pillow.
Fair Use Guidelines Develop: Artists' Protections Erode
In the following years, appropriation artists like Jeff Koons and Richard Prince pushed the bounds of the transformative use test seemingly beyond all recall.
In 2013, in Cariou v. Prince, the Second Circuit Court of Appeals found that Richard Prince made fair use of the work of Patrick Cariou. The case involved 30 works by Prince that incorporated images by photographer Patrick Cariou.
When asked about his use of Cariou's photographs, Prince said that he doesn't really have a message and that he was not trying to create anything with a new meaning. The court decided that the artist's intent wasn't important. What's important is how the viewer perceives the new work, whether the viewer imports a new meaning or message.
The court went on to act as the "viewer," did its own side-by-side comparison, and decided that 25 of Prince's works had a different character, added new expression, employed new "communicative results," and a fundamentally different aesthetic. This, despite the fact that Prince himself said he had no particular message to convey.
The collage-like work above "has not presented the same material as Cariou in a different manner, but instead has added something new and presented images with a fundamentally different aesthetic," according to the court.
Prince's work depicted in the comparison below isn't sufficiently different to support transformative fair use, according to the court. The work is different from, but still similar in key aesthetic ways.
The court tried to explain that transformative use which is fair differs from transformation that is a protected an artist's derivative rights. An artist's derivative rights to transform their own work means they can present the same material but in a new form.
The fair use defense expanded as a result of this decision. Greater emphasis is placed on the first factor than on the other three factors, but what the fair use guidelines are and how they are to be applied remained clear as mud.
At least one court criticized the decision saying, "The fair use privilege . . . is not designed to protect lazy appropriators." Other courts followed the lead set by the decision in Cariou v. Prince which further broadened the fair use defense and eroded the rights of the original artists.
Fair Use Guidelines Continue to Evolve
In March 2021 in Andy Warhol Foundation v. Goldsmith, the Second Circuit revisited the fair use guidelines they set out in Cariou and seem to rein themselves back in when looking at the work of two different artists. Warhol created a series of silkscreen prints and pencil illustrations based on a 1981 photograph of the musical artist Prince (another Prince makes a mark in the fair use discussion) taken by Lynn Goldsmith.
The court decided that Warhol did not make fair use of Goldsmith's image because it is nothing more than the imposition of Warhol's style on Goldsmith's work. The purpose and function of the works is the same -- they are portraits of the same person. Warhol's work is closer to presenting Goldsmith's work in a different form than it is transformative of it.
The court went on to say that the fact that Warhol's work is immediately recognizable does not make it transformation. They rejected the celebrity-plagiarist privilege.
The court recognized the problems with what they did in Cariou. They acknowledged that an overly liberal standard of transformativeness risks crowding out protection for derivative work.
The court didn't back away from their reasoning in Cariou, but transformativeness recedes in importance in the fair use analysis. The other three factors regain their significance in the fair use analysis.
Wrapping Up: My Thoughts
When using the creative work of another without a license, it is good practice to have a solid reason why the work is being used. Even though the Second Circuit seems to pay little heed to the artist's intent, an artist needs to be able to articulate why the underlying work is needed, why there is something new, with a further purpose or different character, and how the new work alters the first with new expression, meaning, or message. It's not just a different style and it's much more than a change in form.
If the underlying work inspired the new, secondary work, what is that inspiration?
What do you think? What kind of fair use guidelines would really be fair in a way that promotes the creation of new art but preserves rights to the original artist? When and how should you be allowed to use someone else's work without their permission? When and how should they be allowed to use yours?
This is a two-part post, put up by me on your blog at your request.
Some might consider this “too long” and therefore of no value.
The issue of authors protecting their own works remains in turmoil to most people.
I can explain why it is not for me. But it does take more than “just a short sentence.”
— Backstory —
I have made movies, produced music, and now am publishing books for myself and others. So I have a bit of experience in the copyright trenches.
Let me share a recent event salient to the topic, then (at the end) answer the question you posed about what I would agree is fair use of my and my clients’ works.
— Recent Event —
I am a member of the Berlin Writer’s Group (Berlin NH), which is a very professional set of highly-published authors, including Star Trek episodes, several movies, and nearly 8,500 books in print. Or maybe that is 7,000+. I am not sure, never having counted all of them myself. These people #maketheirliving# writing great stuff!
When Bernie read part of his newly-contracted movie script to us, he launched into his protagonist’s opening gambit, namely plopping a severed head on the table of her team of assassins in their secret hiding Guild on Mars.
Whoa! Bernie! No backstory to that head???
So I wrote a short backstory and handed it to him.
His reply was “David, the script does not call for this. But it is well written. I suggest you use it in one of your westerns.”
Do 1890’s era westerns have Mars-based sword-wielding space-women assassins-for-hire?
Naw. That would stretch the fabric of belief beyond reasonable restraint.
But I really did want to use what I had written.
So, I created an entirely new female character, one who works modern-day as a freelance “problem solver”.
So far, I have 26 chapters of “Joyce”, a villain-protagonist who lops off the head of her lover and plops it on the table of her contractor. Hey, if writing that was hard, I’d not be a writer!
My point is, from a copyright perspective I was good to go once I created an entirely new character, in an entirely different setting, with an entirely different motive-operandi.
The mere casual lopping off heads and plopping them on tables is something humans have done since the invention of the sword, so no copyright problem there.
It does not hurt that Bernie knows and approves of what I am doing, and is satisfied that I am not just copying, nor or even borrowing, some of his work.
This all got me to thinking…
Would somebody take their own child’s finger painting, add a few squiggles of their own, then sign their name to the corner and sell it as their own work???
Joyce says “Hell yes! Indeed they would! Give me an address and I can fix that problem for less cost than a lawsuit.”
— Fair Use Question —
“When and how should they be allowed to use yours?”
Please, everybody, borrow my characters as (very) subordinate actors in your stories.
I only ask that they not be essential to your plot AND that their behavior be not substantially changed from how I present them.
Yes, print T-shirts and plush toys and mugs and wanted posters using my characters.
Please, sell them widely! Might I ask that you focus on Germany, Sweden, Russia, and China? They seem to have a real desire for all things “Wild West”. What better lead-in to book sales than seeing my characters’ wanted posters nailed up on telephone poles and pinned to school walls?
No, do not make a movie, a book, a recording, a billboard with my characters as essential to the plot.
Cameo appearances, humorous representations, sly references; these are encouraged, with no prior permission or attribution required.
By all means, make my characters world-wide household names.
My characters stand by themselves, currently poverty-stricken.
They could use the free advertising!
Thank you for this article, Kathryn! For years, I have hesitated to use torn pieces of paper from magazines, books, etc. in my art because it bothers me to use someone else’s work in any way–mainly because I’m scared to death of infringing. But also because I’m not sure how I would feel about someone painting over fragments of my words or artwork in their creations. Artists collage over copyrighted works all the time. It certainly could fit the transformative test, depending on how much of the text or picture is still identifiable, I suppose. I have often wondered, though, how artists, especially famous artists, were blatantly using well-known photographs, still clearly identifiable, in their work. I assumed they were getting permission. You just cleared this up for me–even well-known artists sometimes infringe.
Thank you for another interesting report on copyright issues. Although as an artist/author, I find it difficult to follow the arguments and opinions expressed in the court’s decision. I’m sure that many of your readers will say the same thing.
I recall a Communications Law class in my master’s degree program back in the late 70’s where we studied copyright. It was simple, copyright meant you couldn’t take work belonging to an artist and use it if it meant that the artist could not make a living (or close to that).
In this case, why wouldn’t Warhol research the photograph ownership and compensate the artist for the work? Was Goldsmith an unknown photographer? Or was the Warhol Foundation, one of the “lazy appropriators” the court’s ruling mentioned?
In recent years, I had two interesting copyright experiences. One involved my own nature photographs I posted on my website (www.WaterviewsBook.com). In searching a website of the Town of Brookhaven, NY – I found 4 of my nature photos were copied and pasted in a montage about the Carman’s River that the town was promoting. Even though my identify was clearly seen on my website (and my name imprinted on the images), no one contacted me. They just took them without permission. And I imagine a “fair use” argument could be used.
The second case involved a vendor at an “Art in the Park” event that I was displaying my nature photographs for sale. While taking a break, I walked around to see other vendor’s work. One caught my eye because within his tent, he was selling beautiful nature scenes, printed and framed. I asked the vendor, if he was the artist that took these photos and he responded no. He wished he was able to take such beautiful pictures. Instead, he found them on various website and copied them. Then used photoshop to improve the images as he printed them and later framed them for sale. I couldn’t believe he just admitted it—without thinking he was stealing. Could the vendor offer a “fair use” argument?
I don’t know, what is an artist to do?
John P. Cardone
Fair use is a difficult concept to explain in simple terms which is unfortunate because creators must engage with the concept on a regular basis. I don’t now why Warhol didn’t license the work. I can only speculate. He was an appropriation artist. Perhaps it was part of his philosophy that he didn’t need to license the work he used. Or, perhaps he thought he had permission because the Goldsmith images were given to him as raw material by Vanity Fair magazine whom he supposed had permission for their use. I just don’t know the answer to that. The idea that all uses of copyrighted works must be licensed, often referred to as the permission culture, denies the existence of fair use. Many uses of copyrighted works are fair. The law says so. Creative practice says so. The problem for working creatives and, apparently, trial court judges, is figuring out what is fair and what isn’t.
Excellent and informative piece; thank you so much for a thought-provoking result! In my case as a novelist I wonder about Fan Fiction, and the protections (or not) my readers might have when creating new story lines from my original characters and situations…
Fan fiction is an interesting area of copyright law. Essentially, fans can write new storylines with existing characters or extensions of existing storylines, but may not sell them. New storylines that comment on or are critical of existing storylines can be sold. Rebecca Tushnet is a legal scholar and author of fan fiction herself. Here’s a link to a brief interview she did explaining how fan fiction works: https://www.wnyc.org/story/274585-fan-fiction-and-law/