
UPDATE: In March 2022, the U.S. Supreme Court granted certiorari in Warhol Foundation v. Goldsmith, announcing it will hear the fair use case during next year’s term. Authors Alliance will continue to monitor this case and update our readers as it moves forward.
This year is shaping up to be a big one for copyright: a new batch of works entered the public domain, the 2020 year-end stimulus bill made several changes to copyright law, the Copyright Office is currently undergoing its triennial rulemaking process to grant exemptions to section 1201โs prohibition on breaking digital locks, and courts are considering ever more difficult issues related to fair use. Two recent cases that have been making waves in the copyright community are Google LLC v. Oracle America, Inc. and The Andy Warhol Foundation v. Goldsmith. Both cases discuss “transformativeness,” a key component of the fair use test, but reach different results: In the former, the Supreme Court ruled in favor of fair use, and in the latter, the Second Circuit Court ruled against fair use.
At Authors Alliance, we care about fair use because it helps authors meet their goals of seeing their works shared broadly, facilitating the use of copyrighted works in some circumstances for certain specific purposes such as research, commentary, and teaching. Fair use also allows authors to use existing materials to strengthen their own research, commentary, and scholarship. We offer short summaries and takeaways from these cases here to keep you apprised of the goings on in copyright and offer some guidance on how these decisions might impact fair use cases more directly related to authors of literary works in the future.
Google v. Oracle
Earlier this month, the Supreme Court issued its long-awaited decision in Google v. Oracle, a case that has been percolating in the lower courts for years, which concerned the question of whether Googleโs unauthorized use of computer code to which Oracle held the copyright constituted fair use. In the case, Google was appealing a ruling by the U.S. Court of Appeals for the Federal Circuit, which had held that Googleโs use of APIs (also referred to as โdeclaring codeโ) was not fair use, despite a jury reaching the opposite conclusion. Google appealed to the Supreme Court on the question of whether APIs were protected by copyright at all and, if so, whether Googleโs use of the code was fair.
In a decision by Justice Breyer, the Court skirted the question of whether APIs were copyrightable, but overturned the Federal Circuitโs finding of infringement, holding that Googleโs use of the APIs was fair use. To come to this determination, the Court considered the four factors involved in fair use determinations. It found that declaring code was functional in nature: unlike the more creative โimplementing codeโ involved in designing Android (and written by Google), the Court viewed the declaring code as equivalent to โbuilding blocks.โ
The Court also found that Googleโs use was transformative in purpose and character because it used Oracleโs declaring code, as well as its own computer code, to create a new platform offering โa new collection of tasks operating in a distinct and different computing environment.โ The Court stated that this was sufficiently transformative to overcome the commercial nature of Googleโs endeavorโthe creation of the massively popular Android operating system. The Court further found that Google used a small quantity of Oracleโs code relative to the total code it used to create Android, overcoming arguments that the 11,500 lines of Oracleโs code that Google used was quite a substantial amount. Finally, the Court considered whether Googleโs Android usurped a market Oracle could have otherwise profited from, and decided that Oracle was not well-positioned to develop a mobile platform at the time and that Google had not usurped its market.
For authors who care about the widespread dissemination of their works and contributing to the commons of knowledge, Googleโs fair use victory may seem a hopeful sign. But there is reason to believe that the holding will be of limited applicability in the future: It is not clear that it even applies to all software copyright issues. The decisionโand importance of details such as the number of lines of code that were actually copiedโshows how fact-sensitive fair use is. And the Courtโs vision of transformativeness in the context of computer code is not an easy fit for other contexts, creating uncertainty as to whether and how the case will affect authors and creators in the future.
The Andy Warhol Foundation v. Goldsmith
In late March, the Second Circuit Court of Appeals issued its opinion in The Andy Warhol Foundation v. Goldsmith, a case concerning a series of screenprinted images created by artist Andy Warhol depicting the late musical artist (formerly known as) Prince, reproduced in court documents and referred to as the Prince series. The first image of Prince that Warhol created was commissioned by Vanity Fair, and was based on a photograph taken by plaintiff Lynn Goldsmith, a renowned celebrity photographer. All of this was authorized pursuant to agreements between Goldsmith and Vanity Fair and between Warhol and Vanity Fair. The Warhol image that appeared in Vanity Fair included credit lines for both Warholโ the artistโand Goldsmithโthe photographer of the work upon which Warholโs was based. But Warhol did not stop thereโ he created fourteen additional works in the same style, comprising the Prince series that was the subject of the litigation.
In the case, Goldsmith sued the Warhol Foundation for infringement in the New York district court, alleging that the Prince series infringed on her copyright in the photograph of Prince. The district court found for the Warhol Foundation on fair use grounds, focusing on the transformative nature of Warholโs silkscreen prints, which it believed โtransformed Prince from a vulnerable, uncomfortable person,โ as he was presented in Goldsmithโs photograph, โto an iconic, larger-than-life figure[.]โ Warholโs works also changed the image of Prince from a black and white, three-dimensional representation to two dimensional, colorful representations. Goldsmith appealed the ruling to the Second Circuit, which overturned the district courtโs finding of fair use.
The Second Circuit disagreed with the district court that Warholโs images were transformative. In its view, the district court improperly took on โthe role of art critic,โ making an artistic determination that Warholโs works were transformative, rather than comparing the elements of the images and their purposes and characters. Under this approach, the Second Circuit concluded that the work retained โessential elementsโ of Goldsmithโs photograph, and was functionally the same work with a new aesthetic.
Unlike the Google case, the narrow reading of transformativeness in Warhol v. Goldsmith can more readily be applied in other contexts where other creative works could be broken down into their elements and compared. The Warhol court was not the only one in recent months to constrain the so-called โtransformative use test,โ and courts are increasingly moving away from considering transformativeness subjectively, and towards examining elements of the two works more objectively. Yet the Google decision took a broader approach to fair use, and one which, as a Supreme Court case, will be more influential to courts across the country. The variations in treatment of fair use in general, and transformativeness specifically, show how fair use is a context-specific determination. Creators who would like to learn more about how fair use applies to the common situations they face can turn to our fair use guide for nonfiction authors and the best practices guides specific to other communities of creators.
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