Fair Use Protection Against Copyright Infringement Claims Just Got Smaller

Are we being ruled from beyond the grave by artists who died young?

(Left) Photo of Prince taken by Lynn GoldSmith in 1981
(Right) “Orange Prince” Warhol screen print based on the Goldsmith photo

When it comes to copyright fair use, are we being ruled from beyond the grave by artists who died too young?

The Supreme Court just decided an important fair use case against the Andy Warhol Foundation (Warhol died in 1987, age 58) concerning artwork he created based on a photograph of the musician Prince (died in 2016, age 57). In doing so, it revamped a decision from the 1990s concerning the famous song “Oh, Pretty Woman” by Roy Orbison (died 1988, age 52), which was remade without permission by a rap group, 2 Live Crew (band member Christopher Won Wong a.k.a. Fresh Kid Ice died in 2017 at age 53).

It’s a copyright zombie-ruled world. The Warhol case has big implications for content creators, such as artists, and some effect on businesses generally.

First, Some Copyright Law Basics

To understand why, consider this legal background.

Almost everything you read or see online is somebody’s copyright property, even if it doesn’t have a copyright-ownership notice.

Copyright protects various rights of an author to what he or she creates, such as a photograph, painting, song, book, news article, or software code. It protects only the expression and not the ideas or information therein. For example, you can avoid copyright infringement by rewriting something in your own words.

Copyright protects various rights of the author, including the right to make copies and derivative works, the latter of which are revisions of the original that add something new, such as a book’s second edition. Anytime you make a copy of someone else’s copyright property or a derivation of it, that’s infringement unless you get permission from the copyright owner or your actions constitute fair use.

The federal copyright statute defines fair use vaguely with nonexclusive examples. Possible fair uses of other people’s copyright property include criticism, commentary, news reporting, teaching, scholarship, and research.

The statute requires courts to consider four nonexclusive factors in deciding whether a use is fair:

·         the purpose and character of the use, including whether the use is commercial or nonprofit,

·         the nature of the copyrighted work,

·         the amount and fraction of the copyrighted work used, and

·         the effect of the use on the potential market for or value of the copyrighted work.

Because of the fuzzy nature of this analysis, it’s difficult to say with certainty when a use is fair.

There are two popular misconceptions about fair use: First, it isn’t fair use just because you don’t make money when using someone else’s copyright property. Also, giving credit to the source is not a legal substitute for getting a license where needed.

1994: Orbison and 2 Live Crew; Transformativeness Dominates Fair Use Analysis

Until recently, the leading case was the Supreme Court’s 1994 decision concerning Orbison’s song “Oh, Pretty Woman.”

There, 2 Live Crew made a rap rendition of the song without the permission of the copyright owner, Acuff-Rose Music. 2 Live Crew borrowed the original’s famous bass line and key lyrics.

The Supreme Court agreed with the rap group that its song is a parody and consequently held it was a fair use. The Court held that the rap version is “transformative” because it altered the original song with “new expression, meaning, or message.” Some factors weighed against fair use, mainly that 2 Live Crew is a for-profit venture. But the transformative and parody nature of the song carried the day and negated copyright-infringement liability.

2023: Prince and Warhol; Purpose of Use Takes Over; Transformativeness is Diminished

That law changed significantly with the recent Warhol decision.

Here, the original work was a photograph of Prince Rogers Nelson taken in 1981 by photographer Lynn Goldsmith, which she licensed to Newsweek for a story about the “up-and-coming” musician.

In 1984, Goldsmith sold a license for $400 to Vanity Fair magazine to use the photo once as an “artist reference” for a story about Prince. The artist, who reworked the picture into a purple silkscreen portrait, was Andy Warhol.

But Warhol didn’t stop there. Without Goldsmith’s permission, he created a series of 16 screen-prints of the same photograph in various color schemes. One of them, “Orange Prince,” shows the musician rendered in black and orange.

After Prince died in 2016, Condé Nast magazine published an issue commemorating Prince’s life. The same company owns Condé Nast and Vanity Fair. Condé Nast used Orange Prince on the cover.  It paid $10,000 to the Warhol Foundation for a license but nothing to Goldsmith and didn’t get her permission.

This led to litigation between Goldsmith and the Warhol Foundation over whether this use of Orange Prince was fair. The Supreme Court decided it wasn’t.

The key takeaway is the Court tremendously reduced the importance of transformativeness in judging whether a rendition of another author’s work is fair use. The Court held that when the purpose of the copyrighted work and the use to which the defendant puts its rendition are the same, and when the defendant is for-profit, the defendant’s use usually isn’t fair.

Here, the Warhol Foundation lost because the Goldsmith photo and this use of Orange Prince both were magazine art for a story about Prince and because Condé Nast is a commercial enterprise.

The Impact on Creators, Including Artists

Who should care about the Warhol case and why?

While it may be apocryphal, Picasso purportedly once said, “Good artists borrow, great artists steal.” As Justice Kagan pointed out, a lot of content creation is based on someone else’s earlier work.

You can no longer count on fair use just because you substantially revise someone else’s work to infuse new meaning.

This doesn’t apply only to photographers and painters. It applies to anyone who borrows from someone else's creative work without permission, such as from news stories, blog posts, books, or software, and to people reworking pictures (such as with Instagram filters) for social media and websites.

Now, the borrowing artist must focus on whether the original work and the borrower’s rendition might be used for the same or similar purposes. If the purposes are the same, such as artwork for a magazine story about the subject of a picture, and if the borrowing artist works for money, there is a high risk that the borrowing isn’t fair use.

That puts the borrowing artist in a tough spot. Some uses of the new art might be fair use and others not. For example, while the Supreme Court held that using Orange Prince for a magazine story about Prince wasn’t fair use, almost certainly, the display of the Warhol Prince series in museums isn’t copyright infringement.

Worse yet, the borrowing artist might not control all of the uses of the new work. For example, what if the Warhol Foundation didn’t control how Condé Nast used Orange Prince? While use of Orange Prince for a story about Prince wasn’t fair use, it almost certainly would be fair use if the story was about Andy Warhol’s artistic style. Perhaps the borrowing artist should get an indemnity and defense agreement from whoever buys the work or a license to use it, just in case the work’s later use is deemed not fair.

The Impact on Businesses Generally

This decision also has implications for businesses generally.

On the plus side, the Warhol decision strengthens the hand of copyright owners, which benefits businesses that create copyright-protected property and may expand licensing opportunities for businesses seeking to monetize what they create.

On the defensive side, talk to your content creators, especially those who handle your website and social media. Tell them that using the copyright property of others without a license isn’t OK just because you revise the base work. For example, using a photo grabbed off the Internet isn't OK even if you crop it, run it through an Instagram filter, and add design elements.

If you use someone else’s work as your starting point, such as a news article or blog post, you must either completely rewrite it in your own words or vet with the legal department whether it’s fair use.

Cat Fight at the Supreme Court

Ironically, the most famous album by 2 Life Crew is “As Nasty as They Want to Be.” That name captures the shockingly biting back-and-forth in the Warhol opinion between two members of the liberal wing of the Court: Justice Sonia Sotomayor, who wrote the majority opinion, and Justice Elena Kagan, who wrote the dissent. Is this what it sounds like when doves cry?

Kagan was incensed that transformativeness was severely downgraded in fair use analysis. She recounted many instances in art history where later artists did great work based on that of other artists. For example, Kagan pointed out that Shakespeare’s Romeo and Juliet was most directly based on Arthur Brooke’s The Tragical History of Romeus and Juliet. Brooke himself was part of a chain of borrowing the same storyline.

Sotomayor called the dissent “a series of misstatements and exaggerations, from the dissent’s first sentence… to its very last.” Sotomayor then sprinkled in copious insults of Kagan’s dissent, such as “fumbling,” “misconstruing” the law, “does not follow, or chooses to ignore” the law, “the dissent is stumped,” the dissent engaged in “logical fallacy,” the “dissent would rather not debate these finer points,” and “the dissent thus misses the forest for a tree.”

In Kagan’s dissent, she noted, “the majority opinion is trained on this dissent in a way majority opinions seldom are.” She then accused Sotomayor of “slicing the baloney pretty thin.” She called the majority opinion “downright dismissive” of her views. She added, “It’s not just that the majority does not realize how much Warhol added [to the Goldsmith picture]; it’s that the majority does not care.” She accused the majority of “plant[ing] itself firmly in the ‘I could paint that’ school of art criticism.”

If any attorney spoke in open court of an opposing counsel the way Sotomayor and Kagan went after each other, the judge would scold the lawyers for incivility.

Written on June 22, 2023

by John B. Farmer

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