All eyes were on SCOTUS yesterday as the court heard arguments in the Warhol Prince case. I always look forward to copyright judgments from this court. This is another case on the application of the fair use doctrine or what I endearingly call, the “whatever-you-can-get-away-with doctrine”.
Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith is a copyright dispute over a photograph of the musician Prince. The issue before the court is to decide whether a work of art is “transformative” when it conveys a different meaning or message from its source material (as the Supreme Court, U.S. Court of Appeals for the 9th Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it “recognizably deriv[es] from” its source material (as the U.S. Court of Appeals for the 2nd Circuit has held).
Facts of the case: Rock photographer Lynn Goldsmith took the photo of Prince in 1981, when he was still an up-and-coming musical artist. When Prince became established in 1984 with his “Purple Rain” album, Vanity Fair licensed Goldsmith’s photo for use as an artist’s reference for an illustration to accompany a profile of Prince. The artist they engaged was Andy Warhol. Warhol cropped and silk-screened Goldsmith’s photo into a series of 16 images of Prince, now known as the Prince series. One of those — “Purple Prince” — ran with the Vanity Fair article. Another, “Orange Prince,” ran on the cover of a commemorative magazine that publisher Condé Nast issued after Prince’s death in 2016. The Andy Warhol Foundation charged Condé Nast a $10,250 licensing fee to publish the image and paid zero dollars to Goldsmith.
The Andy Warhol Foundation filed suit pre-emptively to seek a declaration that the entire Prince series was a fair use under copyright law on the basis that Warhol’s images transformed Goldsmith’s photo into a new work with a different meaning or message. Goldsmith however objected to the 2016 use as a violation of her copyright.
As one lawyer described the arguments hearing, “Justices dance around the middle ground in fair use showdown. The Court’s decision could impact everything from the mundane to the sublime.”
Roman Martinez, representing the Foundation, argued before the Court that “a ruling for Goldsmith would strip protection not just from the Prince series but from countless works of modern and contemporary art. It would make it illegal for artists, museums, galleries, and collectors to display, sell, profit from, maybe even possess a significant quantity of works. It would also chill the creation of new art by established and up-and-coming artists alike.”
The justices probed Martinez on what it takes to create a derivative work that falls under his test for transformation and whether the proposed test wouldn’t “eviscerate” a key analytical factor for fair use under the Copyright Act. They also gave many hypothetical examples, some very comical, as they usually do in similar lines of questioning, another reason why their judgments are so much fun to read. Martinez answered that it would depend on the degree of transformation in meaning or message.
Justice Amy Coney Barrett asked: “If a work is derivative, like Lord of the Rings, you know, book to movie, is your answer just like, well, sure, that’s a new meaning or message, it’s transformative?” Martinez view of the Lord of the Rings movies being “not fundamentally different” from the J.R.R. Tolkien works came as a surprise to the justices.
Lisa Blatt, representing Goldsmith, submitted that the Warhol Foundation unduly exploited Warhol’s reputation as a Pop Art icon to commit infringement, although Warhol himself used to follow the rules and pay licenses, “His foundation just failed to do so here.” Blatt also had book-to-movie and TV adaptations references, such as Jaws and Stanley Kubrick’s adaptation of Stephen King’s The Shining. She argued that under the Warhol Foundation test, such book-to-movie or TV show-to-spinoff adaptations might no longer require licensing.
What I think: I am 100% with Goldsmith. This is not a complicated case. I agree with Blatt that the New York court was sort of blinded by the art-aura of Andy Warhol. I don’t see where the fair use doctrine applies, or what “different message” is being conveyed through the 2016 transformation. It is clear infringement. You take someone’s photograph, you run it through an AI Stylizer, making sure to preserve its main essence, and poof you call it your own (I can make you 50 of those today), but it is still a photograph portrait preserving the exact same facial expressions of the subject as captured by the photographer. It is pure theft, y’all.
Another element of fair use is that it should favor humans over businesses and foundations. Do I need to remind everyone that the courts still think that human beings are the ones who create intellectual property, even when robots do all the work. In my example above, when I run a photograph or video through an AI Stylizer, and post those all over the internet, fair use applies to me. But if I license the new “works” to my “foundation” who begins selling copies of the 50 photos or videos (that I ran through the AI Stylizer today), and then my foundation begins licensing these photos and videos to magazines, without me asking for permission or paying a license, then it would be infringement. I hope this example clarifies it.
Of course, if SCOTUS says that the Foundation wins, you know that I will be taking advantage of that immediately. I will be licensing many catalogues of “transformed” material I don’t own and never paid a license for, to companies under my control, who in turn will be licensing the works to the highest bidders. And don’t even start me on NFT’s. I will be minting away. I won’t need to create an original work ever again. In 2022, you don’t need to be Warhol or Monet to produce Warhol or Monet quality “transformative works”. You need a computer.
I do tend to experiment a lot with fair use in my work for the sake of pushing boundaries of appropriation to ever new extremes. After all, the line between legality and infringement is quite fictional when it gets to fair use, but without fair use, we wouldn’t have creator platforms like TikTok. Content would be very boring indeed. It is a very safe bet that fair use viewership on popular and alt video platforms exceeds by many billion views original content programs like Netflix or Amazon on any given day.
The American fair use doctrine is the one that prevails around the world because the Supreme Court of the United States has written about it more than any other court in the world. It is important to take awareness that in a global context, a nation’s IP frameworks only exist (in the sense of articulation and enforcement) if the courts give them life and keep them alive through relentless hearing of cases and interpretation. If you are based in Canada however, where the Supreme Court hears a copyright case once in a blue moon, there is a lot more to get away with, not because of how the copyright act is drafted, but rather due to courts not being up to date with modern reality of fair dealing and relying on a very old case about a photocopy machine in a law library when Ontario was called Upper Canada (CCH Canadian Ltd v Law Society of Upper Canada) one of the most cited cases in Canadian copyright jurisprudence. The “new” sections on user generated content from 2012 have never been interpreted by the Supreme Court of Canada. All in all, in the past 10 years, there have been two judgments from the British Columbia courts discussing these sections (2022 BCCA 313 and 2016 BCSC 625).
So, if when refer to fair use, it would generally be about the US fair use doctrine that everyone has heard of as opposed to the fair dealing doctrine from Canadian law. Technically, fair use is only limited by commercial use in the strict sense where you overtly put a price tag on a copied work. In this day and age, however, revenue tends to be a bit more indirect and diversified. For example, you may not make money with unauthorized elements of a copied work, but you could do it indirectly by gathering personal information on the people who look at the final piece of content or comment on it and selling this data to the highest bidder. Moreover, many Canadian artists and organizations rely almost exclusively on government subsidies and tax breaks, so it is hard to tell if their work is commercial, even when they use unauthorized material, as they don’t openly sell it. These same artists may have direct commercial activity outside of Canada for different works, where it is socially accepted to make money with your art (or make more money than you spend). Generally, in the US royalties, revenue, and enforcement are significantly better and income tax is tremendously lower, so it makes more sense to license or sell your works in the States, while using Canada as an exploration playground where revenue is almost never directly tied to content.