On June 17, 2022, the Authors Guild submitted an amicus curiae (meaning “friend of the court”) brief along with several other organizations in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a copyright fair use case currently in front of the Supreme Court. This case offers the Supreme Court the opportunity to clarify what constitutes “transformative use” under the fair use doctrine.
Copyright law directs courts to look at four different factors to determine whether one person’s use of another’s copyrighted work is an allowable fair use. In a 1994 decision, Campbell v. Acuff-Rose Music Inc., the Supreme Court held that under the first factor, the nature of the use, courts should consider whether the secondary use is “transformative” in addition to whether it is a commercial or nonprofit educational use. Since that ruling, lower courts have struggled to define when a use is transformative in various circumstances. Unfortunately, there has been a trend in recent years, especially in district courts, to find that new uses of existing works are transformative just because they contain new or modified expression. Once a work is found transformative, courts have applied the other fair use factors in a manner that automatically weighs in favor of fair use.
This broad interpretation has caused tension within copyright law, which gives authors the exclusive right to create or allow others to create derivative works, such as translations, abridgements, audiobooks, sequels, and film and television adaptations based on their work. Derivative works are extremely important income sources for authors and their publishers and help support the publishing ecosystem. While some derivative works—such as parodies and criticisms of an original work that don’t take more than is necessary to make their point—can and should be fair use, applying the transformative use doctrine too broadly risks cutting into the derivative work markets that authors and publishers rely on to make a living.
In the Warhol case, photographer Lynn Goldsmith took a series of portrait photographs of then “up-and-coming” recording artist Prince. Vanity Fair licensed one of those photos to provide to Andy Warhol as an artist’s reference to create an illustration for a Vanity Fair article about Prince. Years later, Goldsmith learned that Warhol had also used her photo to create additional lithographs, known as the “Prince Series,” and that the Andy Warhol Foundation was licensing the images into the same market as her photographs. At first, the Southern District Court of New York found that Warhol’s use of the photo was transformative and a fair use. On appeal, the Second Circuit disagreed, finding that the lithographs were not transformative, and that the other fair use factors also weighed against Warhol’s use being a fair use. The Warhol Estate appealed to the Supreme Court, and the Court accepted the case on the narrow issue of transformative use.
The Authors Guild’s amicus brief advises the Supreme Court of the importance of derivative work markets as incentives for authors to continue to create new works. It describes how an overly broad definition of what is transformative can severely impair authors’ abilities to license the creation of derivative works, harming not only authors but also, ultimately, their readers. It also asks the Court to limit the transformative use doctrine to ensure that it does not swallow derivative work rights. We also remind the Court of the importance of applying all four fair use factors to an analysis instead of automatically finding every transformative use to be fair use.
The Supreme Court is scheduled to hear oral arguments in the case in October. We will continue to keep our members advised about developments in this case.