There’s Nothing Wrong with a Message-Blind Fair Use Analysis

In my long, admittedly meandering post of April 18, I asserted that although a traditional understanding of fair use often concerns itself with purpose as perceived through message, the Second Circuit in AWF v. Goldsmith was right to adopt a “message-blind” approach in its opinion reversing the lower court’s finding. I say this despite my personal view that the Warhol screens should be held fair uses of Lynn Goldsmith’s photograph—just not for most of the reasons advanced by AWF or others, and especially not the arguments now leaning substantially on the outcome in Google v. Oracle.

The simple answer as to why I would find the Warhol screens to be fair uses is that I see different expression in those works than I do in the Goldsmith photograph. Specifically, I agree with AWF’s claim that Warhol altered Prince’s gaze and, thereby, created works that convey a new mood. And because most of the expression in a portrait of this nature derives from the uncopyrightable face of the subject, a shift in gaze and mood may be distinction enough from the prior work to render the secondary a fair use. BUT we do not necessarily need to describe what that mood might be in terms of message, particularly the generalized cultural commentary that we associate with an artist like Warhol. 

Certainly, many observers may agree with Goldsmith that Prince looks “vulnerable” in her photograph and/or with Andy Warhol Foundation that Prince is rendered as “an icon” in the silkscreens; but even if hypothetical jurors would describe what they perceive in completely different terms, this subjective dialogue between observer and artwork should not necessarily serve as a matter of fact in the consideration under factor one of the fair use test. So, I partly disagree with AWF’s assertion in its petition for rehearing en banc, which states:

… no other court of appeals holds—as the panel did here—that a follow-on work is not fair use if it retains a ‘recognizable foundation’ in pre-existing material, even when the follow-on work objectively recasts the original to express a new meaning or message. The panel’s message-blind test for transformative use makes this Court a stark outlier among the circuits.

That a prior work may be “recognizable” in a fairly used secondary work is axiomatic. Or one could say that it would be anathema to fair use if recognizability of the prior work were a disqualifying factor. Naturally, the prior work, in nearly all cases, is going to be recognizable in some form in a secondary use of the work. Otherwise, how would we know a use exists at all?

But AWF’s error, in my view, is conflating “recognizability” with a requirement that a court find distinction in “message” between two works. Were this a trial, the jury would only be made aware of anything to “recognize” in the Warhol screens when it is first shown the unpublished Goldsmith photo. Then, what is instantly “recognized” in both images is Prince and, perhaps, Warhol in the screens. And if we asked the jury to tell us what the photo “says” and then what the screens “say,” we might possibly receive twelve different answers that reflect the purely subjective relationship between art and observer. That’s what art is supposed to provoke. But such considerations do not readily present themselves as factual evidence in a fair use consideration.

Suppose the two works at issue were instrumental sound recordings. Should the analysis rely upon either composer’s description of what they intended to communicate in terms of message? That would likely be folly. Instead, in such cases, musicologists often provide the factual element needed for the compare-and-contrast analysis, rather than leave the question to speculative “feeling” on the part of the observer, or claims of message by the litigating parties. Not that expert testimony of this nature may not be flawed, but I mention it to illustrate that “message-blindness” applies all the time when considering similarity and/or fair use.

As stated in that earlier post, a great deal of art rejects, or even scorns, any presumed consensus about a work’s message. So, not only is message-blindness often the correct perspective for a court to adopt when weighing fair use, this posture may also serve to restrain a court from overemphasizing the search for transformativeness in a secondary work simply because it appears to fulfill general social purpose.

In Google, the Breyer opinion overstates the value of software development in general as a rationale for finding transformativeness in Google’s unlicensed use of Oracle’s code. As a result, AWF now cites Google in it is petition by asserting the general value of art, including Warhol’s general commentary, as a rationale for finding transformativeness in the Prince silkscreens. From the petition:

Even though the defendant [Google] used the pre-existing material verbatim in its follow-on work, and even though both works were of the exact same type, the follow-on work served a socially constructive, distinct purpose—the development of a ‘highly creative and innovative’ alternative to the original. [Citations omitted]

If the Breyer opinion had weighed the copyrightability question, as it should have, and held the code at issue to be an improper subject of protection, people of good intent might disagree, but it would not be so potentially damaging to copyright law. Instead, parties like AWF now have a Supreme Court opinion with which to argue that “socially significant” is practically synonymous with “transformative.” Thus, it is easy to understand why those who advocate a doctrine of fair use without limiting contours are now filing briefs in support of AWF.

We all agree that software and art are important and valuable contributions to society, but reprising this undisputed generalization says almost nothing about whether a use is a fair use on the merits at issue. After all, these contributions to society are equally important constants when courts weigh cases in which they rule against fair use. But thanks to the outcome in Google, we see in the AWF petition that every putative fair user may now reiterate these almost meaningless generalizations.

As stated, I personally believe the Warhol screens are a fair use for the very simple, and very narrow, reason that they express something different than the Goldsmith photograph and achieve that distinction by copying only the unprotectable elements. But more importantly, I believe copyright law would be better served if the analysis were limited to those considerations, even if a court or a jury would arrive at the opposite conclusion that I do.

Instead, it seems that the attempt to define message in many cases may be intrinsically moot with respect to the works themselves, but also extrinsically damaging by feeding a rhetoric in case law that is so generalized it undermines the foundation that fair use is a case-by-case defense. Certainly, that would be consistent with the ambition of those who seek to weaken copyright protections for all authors of works.

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