Tag: AWF v. Goldsmith

It’s Fair Use Week again, but the party’s over.

fair use week 2024

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

Doc Filmmakers Brief in AWF v. Goldsmith is Misguided

In both Andy Warhol Foundation v. Lynn Goldsmith (SCOTUS) and Hachette et al v. Internet Archive (SDNY), the amicus briefs are piling up fast. Not that I have any intention of writing about every argument presented in either case, but rummaging through the briefs in Warhol, one filed by a group of documentary filmmakers on behalf of AWF caught my attention. I support documentary filmmakers as much as any other type of creator, but the arguments presented to find fair use for AWF are inappropriate and ill-advised.

As a general critique, the filmmakers’ brief is too dramatic (and frankly dishonest), claiming that if SCOTUS affirms the Second Circuit’s finding against fair use for Warhol, the decision “could devastate the documentary film genre.” This hyperbole reveals the central flaw in the brief which implies that doc filmmakers have enjoyed a degree of certainty in fair use prior to the current ruling in Warhol and, therefore, argues that upholding the ruling will further disrupt that certainty. This is untrue.

If the filmmakers would have the Court believe that documentarians have thus far relied on the fair use rationale as applied by the district court in this case, history does not support this claim. On the contrary, if the Court were to agree with AWF’s reasoning as presented, it would create a novel presumption of certainty by broadening fair use to encompass almost any use that adds “something” to the world. Such a holding may seem attractive to many users of protected works, but it is incorrect to argue that this reasoning is consistent with fair use doctrine to date, and it is folly for any class of creator to be so eager to weaken their own copyright rights.

Doc Films Do Not Depend on the Question Presented

The filmmakers’ brief relies heavily on an accurate but incomplete portrait of the doc filmmaker as a paradigm among fair users. It is true that a documentary may fulfill several, or all, of the exemplary fair use purposes enumerated in the preamble of Section 107 of the Copyright Act. A film might be simultaneously commentary, criticism, education, and news reporting, which is why documentaries enjoy what the brief describes as a “favored” status in a fair use consideration.

But there is no foundation to argue that this status will be disturbed if the Court rejects AWF’s fair use theory, and the filmmakers’ brief does not present a compelling argument to the contrary. It merely alleges that such an outcome would be harmful, even though documentary filmmakers are in roughly in the same posture vis-à-vis fair use as they have been since 1978, if not earlier.

The filmmakers argue that if their work is subjected to the Second Circuit’s “side-by-side” search for transformativeness, this would expose many documentaries to unprecedented liability for infringement. But this claim is inapt as a matter of law and inconsistent with traditional doc film production in practice. As a legal matter, AWF v. Goldsmith is fundamentally (and frustratingly) about the conflict between transformation as fair use and transformation as protected derivative work, but this doctrinal tension is rarely present in a typical documentarian’s use of protected material, including most, if not all, of the examples cited in the brief.

Because documentaries tend to fulfill one or more of the paradigmatic purposes of fair use, they benefit from a legal pedigree that predates the “transformativeness” doctrine and much of the confusion it has spawned. Most fair uses of protected material in documentary films are relatively easy to identify without addressing the theoretical distinction between a transformative fair use and a derivative work. Consequently, the filmmakers’ concern that they will encounter new liability on the basis that works are often used in films “without alteration” is misplaced and a poor reading of classical fair use doctrine.

For instance, the filmmakers argue somewhat breathlessly that, “Relying on Warhol, at least one trial court has already held that brief uses of a photojournalist’s footage in documentary programming were not transformative as a matter of law because they were not altered and were thus “even less transformative than the use at issue in Andy Warhol.” (Emphasis added). But in fact, the opinion cited (Fioranelli v. CBS) reprises a litany of Second Circuit holdings dating back to 1997 and summarizes the court’s general view thus:

A common thread running through [Second Circuit visual art] cases is that, where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a “higher or different artistic use,” is insufficient to render a work transformative.

So, the holding in Fioranelli is not a direct result of Warhol, and the requirement to “comment on…” the original work is longstanding doctrine when considering factor one in a fair use analysis. Moreover, that lawsuit was triggered by multiple uses by sublicensees made in breach of the photojournalist’s original agreement with the network. This detail further weakens the filmmakers’ argument in Warhol because the defendant’s initial obligation to license in that case demonstrates that documentary films usually rely on a combination of licensed and fairly used materials. A finding for Goldsmith will not place an unprecedented burden on filmmakers to consider fair use for each work used in a project, and the filmmakers’ brief is instructive when it undermines its own argument, stating:

… many copyrighted excerpts in documentaries are clearly recognizable, and the new work often does not comment on or directly relate back to them. Rather, the borrowed works are generally presented in combination with other archival sources, original content, and commentary via narration or interviews. This is done to provide viewers with historical, cultural or social context, for the purpose—different from the originals’—of enhancing viewers’ comprehension of the films’ subject matter.

That description encompasses a spectrum of plausible fair uses under the same doctrine that rejects AWF’s theory. It may be that presenting a work “in combination” with other elements “to provide viewers with cultural or social context” meets the classical purpose of the fair use exception, particularly in a nonfiction work like a doc film. And maintaining this paradigm does not rely upon the question presented in this case, let alone a finding for Warhol.

Fair Use Remains a Case-by-Case Consideration

Fair use analyses are standard practice before the release of a documentary film. As the brief notes, producers typically obtain errors and omissions insurance, which may require a fair use assessment of the final film by an attorney. This analysis will not be made more difficult or uncertain by rejecting AWF’s fair use defense, and to the extent the filmmakers hope the Court may foster broader certainty by expanding fair use, I would caution them to be careful what they wish for. Under AWF’s theory, it would be substantially easier to infringe the copyright rights of the documentarian, too.

Documentary filmmakers are essential creators, but they do not require greater latitude in fair use considerations than the creators whose works they might use. If anything, the broad “favored” status enjoyed by documentary filmmakers obliges them to make a good-faith effort to understand which uses are reasonably fair use and which are not. There is ample guidance for the most common uses of works in nonfiction films, and where guidance is uncertain, licensing is available. In those instances where licensing may be unattainable, as alluded to in the brief, fair use is, as ever, a possible exemption but never a certainty.

Photo by: Gorodenkoff