Three icons of American pop culture–Andy Warhol, Prince, and the Supreme Court of the United States1–converged this week when the Court heard oral arguments in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The case concerns whether a Warhol print based on a portrait of Prince by photographer Lynn Goldsmith constituted fair use or was instead an infringement of Goldsmith’s copyright. Warhol’s “Orange Prince” was one of a series of 16 works based on the same photograph, none with a license from Goldsmith. Goldsmith has asserted that this infringed her reproduction and derivative work rights in the original photograph. The images in question may be viewed at SCOTUSBlog’s summary of the oral argument.
I have discussed copyright and fair use before for Ius et Iustitium, and in particular the manner in which the analysis of fair use has strayed far from the purpose and text of Section 107 of the Copyright Act. The parties’ briefs in this case and the oral argument on Wednesday have only highlighted the need for a full reconsideration of the scope of rights in a copyrighted work and the scope of fair use. As I previously discussed, the origins of fair use as a judicially created limitation on copyright protection in Folsom v. Marsh and the eventual codification of the doctrine in the Copyright Act of 1976 relied on illustrative “fair uses” directed to the public benefit and reception of a work. Such reliance fell from favor in Harper & Row v. Nation Enterprises, which ignored the public nature of the use and focused instead on the transformativeness of the use (the nature of the use being one of the four factors required for consideration in the fair use statute). Since Campbell v. Acuff-Rose Music, Inc., the transformative nature of the use has become the most preeminent element of the fair use standard.
The problem is that the Copyright Act grants to authors the exclusive right to “prepare derivative works based on the original work.” 17 U.S.C. 106(2). A “derivative work” is “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. 100. That last clause is extremely broad–any recasting, transformation, or adaptation is deemed a “derivative work” under the author’s exclusive control.
So a transformation of the original work is a derivative work, but a transformative use may nevertheless be deemed a fair use. The Copyright Act giveth transformative works unto authors, and the Copyright Act taketh away. The oral argument at times focused on exactly this point, as the justices and counsel struggled to determine to what extent an accused infringer must transform the original work to be deemed fair use. This is an impossible question, but it arises not just from the Supreme Court’s amorphous expansion of fair use but also from the statutory text. It is fair to say that litigants’ counsel and the Supreme Court have been pushed to expand the scope of fair use, a process which I have described in the posts linked above, by the problematic definition of “derivative work” and the scope of the derivative work right.
The current case, Andy Warhol Foundation v. Goldsmith, is a good example of this problem. Under the definition of “derivative work,” there is no question that Warhol’s “Orange Prince” is merely a “transformation” of Goldsmith’s original photograph. This is not an instance of an artist innocently alighting on the same image of Prince as the photographer; Warhol was given a copy of the Goldsmith photograph in order to prepare his works. So AWF is left to argue not that Warhol did not infringe Goldsmith’s copyright, but rather that he should not be punished for that infringement. (Warhol likely would have appreciated part of that argument, which amounted to, “It’s not infringement if a famous person does it.”)
Yet if this case were determined under the 1909 Copyright Act, the last major revision to copyright law before 1976, the case for infringement would be razor-thin. Rather than the all-encompassing derivative work right, the 1909 Copyright Act listed very specific rights beyond reproduction and distribution that applied only to individual types of works. It granted the author the right to translate literary works; to dramatize nondramatic works; to convert dramas into novels or other nondramatic works; and to arrange or adapt musical works. The owner of a dramatic or visual work of art could control the exhibition of the work and its bare reproduction, but exclusive control over transformation of the work into something else was not a right granted by the 1909 Act. The best that Goldsmith would be able to argue under that law would be that Warhol’s portraits of Prince violated the reproduction right, but intuitively that seems like a stretch. Warhol relied on the Goldsmith photograph, but he took it in entirely new directions. In any case, the argument put forth at the Supreme Court turns on the expansive derivative work right in the 1976 Act, not reproduction.
The expansion of fair use in the last 30 years, especially since Campbell v. Acuff-Rose Music, Inc., can thus be seen as a direct response to the overly expansive rights granted to authors by the 1976 Copyright Act’s derivative work right. The Supreme Court has recognized that dissemination and reception of copyrighted works by the public and their participation in the informational, cultural, and artistic interaction between authors and works is an important public good that should not be foreclosed by broadly granted copyrights. The courts have therefore latched onto the fair use defense to preserve that exchange. If we want to cabin the fair use defense to its rightful place in protecting certain public-benefitting uses, then the proper resolution lies not in judicial guesswork about the transformative nature of art in communication with other art, but rather the statutory language itself.
Congress originated this problem almost 50 years ago, and Congress should fix it by replacing the broad derivative work right with a list of specific exclusive actions concerning particular types of works, as the 1909 Act did. Until then, the Supreme Court will keep trying to scale the mountain of balancing derivative work rights and fair use. But as Prince once told Jim Walsh, “I’ve been to the mountaintop. There’s nothing there.”
- I leave it to the reader to determine whether I’m being ironic, and if so, which of the three should be dropped from the list of pop icons. And before you suggest SCOTUS is the odd one out, consider the pop culture treatment of the late Ruth Bader Ginsburg.