supreme court roundup #1: fair use in copyright
warhol is rolling over in his grave
I always go on vacation in mid- to late June to avoid the inevitable social media maelstrom of videos, tweets, infographics, et al., about Supreme Court opinions. The Court—for good reason, honestly—always seem to save their most controversial opinions for the final days of their Term. While I always want to be the first to break the news or post an analysis, the truth of the matter is that I… can’t.
I like to think slowly. I like to melt into the words on the page and live amongst them for a few days before resurfacing. I do my best thinking and writing (which is essentially thinking on the page to me) in a cocoon, preferably in a beautiful library.
I actually hate making shortform videos (despite the fact that they’re my bread-and-butter) because the format always urges me to produce, produce, produce—when all I want to do is ruminate, mull, and consider.1
This week, I’ll be sending out my slow thoughts on three notable cases from this past Supreme Court term: (1) the copyright case challenging what constitutes “fair use” in our mimetic society; (2) the trademark case pitting parodic dog toys against a famous whiskey manufacturer; and (3) affirmative action (gulp). (I had all of these in one post initially but the post got way too long.)
As a preface: these roundups are not, and are not intended, to be full summaries—if you want that, go to SCOTUSblog—but are rather highlights that I find interesting and which implicate broader societal questions. I am not a “Supreme Court expert.” I am just a girl with a JD who teaches a course on intellectual property, has read a fair number of Supreme Court decisions, and likes thinking about the world we live in. Take from that what you will.
First up: the Supreme Court limiting what’s “fair” in fair use.
Background (skip if you’re a copyright nerd)
One of the exercises that my Copyright professor, William Fisher, had us do was decide fair use cases according to other fair use decisions. The exercise helps highlight how subjective the concept of fair use is, even when the Copyright Act gives us examples of uses that would be fair: “for purposes such as criticism, comment, news reporting, teaching [], scholarship, or research.”
The Copyright Act also includes four statutory factors to help guide judges and juries in deciding when using someone else’s work in your own is “fair.” The first factor is typically the most important, and also what the Court focused on in this case:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
If the second use transforms the purpose and character of the copied work, then this factor weighs in favor of the person copying or borrowing the work. Yes, the person copied something, but it was transformative, so it’s okay. If the second use has pretty much the same purpose and character, then this factor weighs in favor of the person being copied. Yes, the person copied something, and it wasn’t transformative, so the person is probably on the hook for copyright infringement.
Unsurprisingly, fair use decisions and verdicts are all over the place. I mean, who really knows when a work of art is “transformative?”
Is this transformative?
Putting aside the issue of the subsequent art using Pokémon characters,2 did Kiana “transform” the Barbie and Ken mug shots? Or just copy them with a similar “purpose and character” of use?
One man’s meme is another man’s copyright infringement. Richard Prince’s “entirely different aesthetic” collage is Patrick Cariou’s blatant theft. Prince’s framed and blown-up Instagram photos (taken from other people’s accounts!) is… an honor?
Honestly, fair use doctrine has been a mess.
So when the Supreme Court granted cert (i.e., said, “Yes, we’ll review this case”) to Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith, copyright nerds across the world rejoiced.
Warhol created silkscreen prints from one of Goldsmith’s photos of Prince (not Richard Prince—the other Prince, who also went by The Artist (Formerly Known as Prince)). The district court decided that Warhol’s silkscreen print was transformative of the original photo, explaining that Warhol “give[s] Goldsmith’s photograph a new expression, and employ[s] new aesthetics with creative and communicative results distinct from Goldsmith’s.”3
Take a look for yourself:
So what happened? The Supreme Court disagreed with the district court and held that new expression and new aesthetics do not transform the purpose and character of Goldsmith’s original photograph—in other words, Warhol’s use of Goldsmith’s work was not fair. Warhol should have sought a license from Goldsmith to use her photo in the way that he did.
The majority opinion drew the boundaries of “new purpose and character” to be narrower than some circuit courts had previously drawn, emphasizing two elements:
“Both are portraits of Prince used in magazines to illustrate stories about Prince,”4 i.e., the two works substantially share the same purpose—to be shown in magazines alongside articles, and
the commercial nature of Warhol’s use of Goldsmith’s photo—Warhol licensed the silkscreen to Condé Nast for $10,000.
The Court contrasted the Prince silkscreen with Warhol’s famous Campbell’s soup can series. That use of a prior work was different, the Court reasoned, because the purpose of Soup Cans was “artistic commentary on consumerism,” whereas the purpose of Campbell’s logo was to advertise soup.5 Same logo but different “purposes” and different fair use analysis. (Had Campbell’s printed out their labels and framed them, that might be a different story…)
Musings
I’m glad the Supreme Court weighed in on fair use. Much has changed about creation and the creative process since the Court last considered the issue of fair use in 1994. We didn’t even have meme generators in 1994, for crying out loud.
In fair use cases, I’m always sensitive to the relative market power/status between the two artists. Warhol is undeniably a famous artist—perhaps one of the most famous artists of the 20th century. Goldsmith is respected and successful, but by no means on the same level of fame or fortune as Warhol. Because of that, seeing Warhol’s silkscreen alongside Goldsmith’s original photo—with the knowledge that Warhol didn’t additionally compensate Goldsmith for his use—is, well, icky.
We like an underdog. We tend to support David in David & Goliath stories. We see ourselves in the “little guy.” And if Warhol made silkscreens from our photos and then went on to earn millions, we demand justice!!
But what if it were the other way around? What if an up-and-coming artist made a silkscreen using Warhol’s work as reference? After all, it’s fairly typical to mimic other people’s works when you’re developing your own artistic sense. Borrowing is an inevitable reality of creativity. The only question is what constitutes “too much” borrowing, versus “fair” borrowing.
The answer to that, I fear, is largely subjective. I emotionally agree with the majority’s opinion, but does circumscribing fair use in this way hinder or foster future creativity? Does this new rule strike the correct “balancing act between [encouraging] creativity and [ensuring free] availability ([of existing works] for use in new works)?”6
The Supreme Court judges are making their best guesses as to what rule best encourages creation. Justice Kagan’s dissent reads just as persuasively as Justice Sotomayor’s majority opinion—the animating difference between the two is their fundamental views of what incentivizes creativity in the world. Is it better to reward artists more for creating in the first place (Sotomayor) or give aspiring artists more leeway in borrowing from the world that they’re in (Kagan)?
When I left biglaw to pursue writing and other creative endeavors, I read up on the economics of creative fields. I talked to writers and journalists about how they made their living. My conclusion was that the economic landscape of art has changed dramatically since I first dreamed of being a writer in middle school. Publishing and writing, like most other artistic fields, have mirrored other industries more generally—the few winners take all, with the middle and the bottom extremely crowded.7 (Which isn’t dissimilar to legal practice, btw.)
In that landscape, there is something to be said about Sotomayor’s view of the world. If it is harder to sustain yourself financially through art, then the financial rewards from art needs to be greater. Kagan’s world, on the other hand, envisions a greater free exchange of ideas and wider latitude to take from what has come before. “[F]air use itself advances creativity and artistic progress.”8 And while that may be true, a broader interpretation of fair use doesn’t pay the bills.
“It will make our world poorer,” Kagan writes, lamenting the majority decision. And I can’t help but think, Yes, but it will also make the individual artist richer. ◆
What do you think about this decision? Should relative status and fortune ever factor into fair use considerations? Do you agree with Sotomayor’s or Kagan’s view of the world? Let me know in the comments!
An example of this tension is my video about the affirmative action ruling. I felt like I had to say something about the decision as soon as I got back from my trip, but I’ve gotten a few comments about how I sound anti-affirmative action or how I’m giving applicants “false hope” that affirmative action still exists—two polar interpretations, really—that I now regret not taking more time to ensure that I was clear about the exact thesis I was advancing. This happens more often than I would like on TikTok/IG Reels/YT Shorts.
598 U.S. ____, 10.
Id. at 22-23.
Id. at 26-27.
Id. at 13.
598 U.S. ____, 11 (Kagan, J., dissenting).
Cece, I always really enjoy your carefully considered and details opinions. It is your strength and gives people like me who do not have the same exposure good insights.