This was a big week in Supreme Court decisions. The court handed down its much-anticipated take in the Andy Warhol Foundation v. Goldsmith copyright case, in which it was tasked with considering whether the first fair use factor – “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” – weighs in favor of Andy Warhol Foundation (“AWF”)’s commercial licensing to Condé Nast. Writing for the majority, Justice Sotomayor held that it does not favor AWF’s fair use defense to copyright infringement.
Some key (and quick) takeaways from the majority’s decision (7-2) and Justice Kagan’s dissent …
– “The first fair use factor focuses on whether an allegedly infringing use has a further purpose or different character,” and that “difference must be weighed against other considerations, like commercialism.” Although new expression “may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor.”
– “If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.”
– “As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF’s copying use of it share substantially the same purpose.” And “even though [AWF’s] Orange Prince adds new expression to Goldsmith’s photograph, in the context of the challenged use” – i.e., a commercial licensing deal – “the first fair use factor still favors Goldsmith.” In other words, the “degree of difference” between the two parties’ works “is not enough for the first factor to favor AWF, given the specific context and commercial nature of the use. To hold otherwise might authorize a range of commercial copying of photographs to be used for purposes that are substantially the same as those of the originals.”
– The court notes that “AWF asserts [that one] purpose of Orange Prince … is to comment on the ‘dehumanizing nature’ and ‘effects’ of celebrity.” According to the majority, “No doubt, many of Warhol’s works, and particularly his uses of repeated images, can be perceived as depicting celebrities as commodities. But even if such commentary is perceptible on the cover of Condé Nast’s tribute to ‘Prince Rogers Nelson, 1958–2016,’ on the occasion of the man’s death, the asserted commentary is at Campbell’s lowest ebb: It ‘has no critical bearing on’ Goldsmith’s photograph, thus the commentary’s ‘claim to fairness in borrowing from’ her work ‘diminishes accordingly (if it does not vanish).’”
– Distinguishing the case at hand from Warhol’s Campbell’s Soup cans, the court says: The Soup Cans “well illustrate the distinction drawn here, [as] the purpose of Campbell’s logo is to advertise soup. Warhol’s canvases do not share that purpose. Rather, the Soup Cans series uses Campbell’s copyrighted work for an artistic commentary on consumerism, a purpose that is orthogonal to advertising soup. The use therefore does not supersede the objects of the advertising logo.”
– In her dissent, which Chief Justice Roberts joined, Justice Kagan states that “copyright’s core value – promoting creativity – sometimes demands a pass for copying,” and argues that the “doctrinal shift” in the decision will leave the fair use first-factor “in shambles.”
– Still yet, Justice Kagan calls attention to the majority’s “indifference to purposes beyond the commercial,” which diverges from SCOTUS precedent, namely, the outcome in Google v. Oracle. (In a footnote, the majority says the dissent gets it wrong here, noting that the court “did not hold that any secondary use that is innovative, in some sense … is thereby transformative. The Court instead emphasized that Google used Sun’s code in a ‘distinct and different’ context, and ‘only insofar as needed’ or ‘necessary’ to achieve Google’s new purpose. In other words, the same concepts of use and justification that the Court relied on in Google are the ones that it applies today.”)
Share
