Thus ends the 12th Annual Fair Use Week, and after the Warhol decision, it must be asked whether the parties who invented this holy week of the copyleft intend to continue the farce much longer. As a refresher, the fair use doctrine has been part of the U.S. Copyright Act since 1976 and a subject of judge-made law since at least 1841. So, why did certain parties begin celebrating Fair Use Week in 2013, and to what end? As stated in past posts, celebrating fair use is not comparable to something like Banned Books Week. The latter is a simple enough concept—namely, to oppose book banning on principle by highlighting and celebrating the titles that have been targeted. There is no complexity or nuance to consider beyond book banning is wrong, if that is one’s view, and it is certainly mine.
By contrast, fair use is not the antithesis of copyright protection for creative works, but a limiting doctrine that expands or enlarges the foundation of copyright’s constitutional purpose to promote progress. For instance, a follow-on work that makes fair use of a prior work is also protected by copyright’s exclusive rights, so the doctrine is complex and nuanced even before one gets to the application of a fair use defense in court. But Fair Use Week, since its inception, has been a PR tool of the “free culture” movement led by various anti-copyright scholars advocating a more expansive reading of the doctrine. By my lights, the campaign has done little for ordinary creators other than to sow confusion and, quite possibly, help certain parties get themselves into legal trouble.
Now, after the March 2023 Supreme Court ruling in Andy Warhol Foundation v. Goldsmith, the tip of the spear in the “fair use” campaign has been shorn off by Justice Sotomayor and thrown back to the year 1994. Or as stated in one of two recent academic papers, “Warhol drove a dagger into the free culture movement’s critique of copyright law.” In tandem, the two papers written by Professors Shyamklrishna Balganesh, Peter Menell, and Lateef Mtima, cite the legislative difficulty in codifying the judge-made fair use doctrine into the 1976 Act and illustrate a broad recognition of the doctrine’s inherent tension with the copyright owner’s exclusive right to “prepare derivative works” (§106(2)).
The Balganesh/Menell paper describes how the Warhol decision reconciled the concept of “transformativeness” with the derivative work right after years in which lower courts overlooked the distinction. Further, the authors, whose amicus brief was echoed by the Court, assert that the Warhol decision leaves behind a sound test—a “blueprint”—for courts to weigh the long-overlooked distinction between a transformative use and derivative work. The paper states:
The majority opinion in Warhol could not have been clearer in purporting to offer a theory to reconcile the derivative work right with fair use as understood in Campbell. Instead of rejecting the idea of transformativeness, it instead integrated that element into an analysis that would serve copyright’s overall goals.
The Menell/Mtima paper builds on that foundation and proposes that preservation of the derivative work right is essential as a matter of justice, perhaps most especially for new, or lesser-known, or potentially marginalized creators. For instance, citing two famous cases in which the transformative analysis crowded or weakened the derivative right, the authors state:
Both the Blanch and Cariou decisions illustrate the harm from the trampling of the derivative work right. Although Andrea Blanch and Patrick Cariou had not become household names, they were professional photographers looking to support themselves through photography. They had each achieved a modicum of success and no doubt would have been receptive to offers to sell and license their works. Unfortunately, however, copyright’s fair use doctrine veered off the rails at key points in their career, emboldening well-heeled appropriation artists to treat their photographs as free raw material for million dollar projects.
How this Relates to Fair Use Week
The “free culture” movement led by Lawrence Lessig and others who followed is primarily focused on the “derivative work” right. Whether advocating fan fiction, “remix culture” on YouTube, or the alleged right of everyone to rework and reuse material that is deeply ingrained in popular culture, all those purposes imply some form of “derivative works,” which only the copyright owner can legally authorize. The two main prongs of the campaign against the derivative work right have been 1) complaining about copyright duration (an unlikely path to actual revision of the law); and 2) promoting a broad interpretation of “transformative” use under the fair use doctrine.
As Balganesh, Menell, and Mtima describe—and as many copyright experts recognize—between 2006 (Blanch v. Koons) and 2013 (Cariou v. Prince), it was looking a lot like the courts’ interpretation of a “transformative” use might swallow the derivative work right altogether. In summary, there were two key problems in the making: 1) “transformative” was being more expansively interpreted to encompass nearly any use that produces something different; and 2) finding a use “transformative” on Factor One was tending to carry the entire four-factor fair use test with it. In other words, winning on “transformativeness” often meant winning on fair use across the board. In combination, these two judicial trends threatened to erase the boundaries of fair use and obliterate the derivative work right at the same time.
Although many a Lessig disciple might describe Warhol as altering fair use doctrine, this is incorrect. Instead, the 7-2 opinion merely re-sharpened the limits (i.e., meaning) of “transformativeness,” relying substantially on the 1994 opinion in Campbell v. Acuff-Rose to reaffirm that some element of “critical bearing” (comment) must be present to find that the purpose of the use favors fair use. Further, the Court also affirmed in Warhol that the “transformativeness” question is not wholly determinative of the fair use analysis.
In plain terms, the “free culture” movement’s effort to expand fair use doctrine alongside public-facing campaigns like Fair Use Week has lost the fight. The derivative work right endures, and the courts’ understanding of “transformativeness” has been restored to its seminal meaning articulated thirty years ago. If Warhol was the final word on that question, the recent judgment against appropriation artist Richard Prince in the “New Portraits” case was arguably the final act. In light of these events, perhaps the founders and proponents of Fair Use Week might realize that their rhetoric is more likely to confuse and harm creators than help them.
NOTES:
Balganesh/Menell: Going “Beyond” Mere Transformation: Warhol and Reconciliation of the Derivative Work Right and Fair Use, Columbia Journal of Law & the Arts, Vol. 47, forthcoming 2024
Menell/Mtima: Exploring the Economic, Social, and Moral Justice Ramifications of the Warhol Decision, Columbia Journal of Law & the Arts, Vol. 47, 2024
Photo source by: bondarillia
