Copyhype

In taking on the concept of “transformative use” for the first time in just shy of thirty years, the Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith provides a critical recalibration of the doctrine, restoring the importance of “justification” to transformative use.¹Although the more recent Google v. Oracle decision addresses transformative use within its broader discussion of fair use, the Court’s treatment was superficial—little more than a rote recitation of the standard articulated in Campbell along with its application to the specific facts of the case. The decision thus tethers fair use closer to the overall purpose of copyright.

Justification has long underlied transformative use. It was central to the Court’s holding in its previous transformative use decision, Campbell v. Acuff-Rose Music, serving as the dividing line between favorable-to-fair-use parody and unfavorable-to-fair-use satire. As the Court said there, “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”²Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580-581 (1994). The idea has surfaced in lower court decisions since then, such as Authors Guild v. Google, where Judge Leval wrote,

[T]he would-be fair user of another’s work must have justification for the taking. A secondary author is not necessarily at liberty to make wholesale takings of the original author’s expression merely because of how well the original author’s expression would convey the secondary author’s different message. Among the best recognized justifications for copying from another’s work is to provide comment on it or criticism of it. A taking from another author’s work for the purpose of making points that have no bearing on the original may well be fair use, but the taker would need to show a justification.³Authors Guild v. Google, Inc., 804 F.3d 202, 215 (2d Cir. 2015).

But many have noted that since Campbell, transformative use has caused fair use to grow overly expansive and unbalanced.⁴See, e.g., Jane Ginsburg, Fair Use in the United States: Transformed, Deformed, Reformed? 2020 Sing. J. Legal Stud. 265 (2020); Patricia Cohen, Photographers Band Together to Protect Work in ‘Fair Use’ Cases, New York Times, Feb. 21, 2014; Hearing on Fair Use, Statement of June Besek, House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet (Jan. 28, 2014). At the same time, a finding by courts of transformativeness has increasingly become dispositive, with one researcher finding that, in recent fair use decisions, a finding of transformativeness is correlated with a finding of fair use 94% of the time.⁵Jiarui Liu, An Empirical Study of Transformative Use in Copyright Law, 22 Stan. Tech. L. Rev. 163 (2019).

The concern about an unbalanced fair use doctrine is that it will undermine the goals of copyright itself.

Generally speaking, the purpose of copyright is advanced by, well, copyright. The exclusive, divisible, and marketable rights protected under copyright law facilitate a market for expressive works that encourages and rewards authorship, creativity, and innovation. The Supreme Court has previously explained how this works by saying,

The economic philosophy behind the Copyright Clause is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors. Accordingly, copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge. The profit motive is the engine that ensures the progress of science.⁶Eldred v. Ashcroft, 537 U.S. 186, 212 n.18 (2003) (cleaned up).

Fair use is an exception to these exclusive rights. The Warhol Court notes that fair use “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Indeed, the doctrine has long been described as a reinforcement of copyright’s very purpose. In his foundational study of fair use that prefaced the 1976 Copyright Act revision effort, Alan Latman wrote, “It has often been stated that a certain degree of latitude for the users of copyrighted works is indispensable for the ‘Progress of Science and useful Arts.'”⁷Alan Latman, Fair Use of Copyrighted Works, pg. 7, Copyright Law Revision Study No. 14, US Copyright Office (1958). Campbell reiterated this principle, saying, “From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts. . . .'”⁸Campbell v. Acuff-Rose Music, 510 US 569, 575 (1994).

An astute reader will recognize a potential paradox here: the purpose of copyright is served both by protecting expression against copying and by permitting expression to be copied. How do courts make sense of this seeming incongruity?

Justification.

The Warhol Court explains the role of justification in the first fair use factor. The task for courts there is to assess “whether and to what extent the use at issue has a purpose or character different from the original.” The majority identified two important points to keep in mind: first, “the fact that a use is commercial as opposed to nonprofit is an additional ‘element of the first factor,'” and second, of relevance here, the first factor relates to “the justification for the use.” It elaborated, “In a broad sense, a use that has a distinct purpose is justified because it furthers the goal of copyright, namely, to promote the progress of science and the arts, without diminishing the incentive to create.” And, “In a narrower sense, a use may be justified because copying is reasonably necessary to achieve the user’s new purpose.”

Congress has provided courts with an illustrative list of those uses which are justified in the broad sense in § 107: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Courts can further assess the fairness of a particular use by considering justification in the narrow sense; that is, asking to what extent the copying is reasonably necessary to achieving the new purpose.

Warhol provides a couple examples to help. Parody, for one, “needs to mimic an original to make its point.” A book review may also have a compelling reason to borrow from the original because it “targets the material for comment or criticism.”

Again, Warhol did not create this idea of justification; it has long been present in fair use decisions. For example, in rejecting a fair use defense for a defendant who had used photographs of a pop star’s secret wedding ceremony to illustrate a magazine article reporting on the ceremony, the Ninth Circuit remarked, “the controversy here has little to do with photos; instead, the photos here depict the couple’s clandestine wedding. The photos were not even necessary to prove that controverted fact—the marriage certificate, which is a matter of public record, may have sufficed to inform the public that the couple kept their marriage a secret for two years.”⁹Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1175 (9th Cir. 2012).

Similarly, in rejecting fair use for the inclusion of plaintiff’s copyrighted comedy routine in defendant’s play, the Second Circuit said,

The “dramatic” purpose served by the Routine in the Play appears to be as a “McGuffin,” that is, as a theatrical device that sets up the plot, but is of little or no significance in itself. To advance the plot of the Play, specifically, to have the puppet Tyrone take on a persona distinct from that of Jason, defendants needed Jason to lie about something and for Tyrone to call him on it. But the particular subject of the lie—the Routine—appears irrelevant to that purpose.¹⁰TCA TV Corp. v. McCollum, 839 F.3d 168, 182 (2d Cir. 2016).

The court went on to note that “Such unaltered use of an allegedly copyrighted work, having no bearing on the original work, requires justification to qualify for a fair use defense” and concluded that nothing in the record showed such justification.

In short, justification asks if the original work is necessary to the secondary use, or if it is fungible—that is, are there substitutes or alternatives that can be used to achieve the same purpose. When an original work is necessary to a secondary use (one that has a distinct purpose), then there is a risk that copyright protections may stifle such uses absent fair use. But where it is not necessary, because there are substitutes or alternatives available, then the risk of copyright blocking a new work disappears. The secondary creator could instead “work[] up something fresh,”¹¹510 U.S. at 580. find a work with favorable license terms, or turn to the public domain. As I’ve said previously, “Copyright’s purpose is to create a commercial market for creative works, and these outcomes are consistent with a functioning marketplace. When fair use privileges uses of original works that are not necessary to the creation of new works, it undermines this market, and, consequently, undermines copyright.”