Does Fair Use Provide a Celebrity Right to Plagiarize?

Background

By contrast with the fair dealing user’s right in Canada, the United States copyright law provides a fair use exemption. Since the reader might encounter US commentary of decisions addressing the fair use right the following comments are provided to introduce the fair use exemption.

The Canadian fair dealing user’s right has some superficial similarities to the United States fair use exemption. Under the US copyright law, “a copyright holder cannot prevent another person from making a “fair use” of copyrighted material.”^[1]

The US Supreme Court describes the fair use doctrine as “an “equitable rule of reason” that “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.”^[2]

The US fair use provision is open-ended in respect of the purposes of the uses^[3] but is built on 4 statutory criteria. It is noteworthy that when the Canadian Supreme Court redefined fair dealing users’ rights that they embedded very similar criteria. However, unlike the case of US fair use, in Canada the fair dealing purposes, that form the first stage of the analysis^[4], are limited and the secondary uses must fall into categories of research, private study, education, parody, satire, criticism or news reporting.

The US fair use provision states:

…. The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.^[5]

The Facts

The US Supreme Court had a recent occasion to examine the first fair use factor in a case involving an Andy Warhol version of a Prince photograph taken by Lynn Goldsmith.

The facts were that in 1984 the magazine Vanity Fair licensed the use of a photograph from Lynn Goldsmith for use as an “artists reference” and hired Andy Warhol to make a version of the photo to help illustrate an article about the musician. The license permitted “one use” only of the photo. Vanity Fair credited Goldsmith for the “source photograph,” and it paid her $400.

Without permission, Andy Warhol went on to make 15 versions of the Goldsmith photo.

After Warhols death, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed one of those works to Condé Nast, for the purpose of illustrating a magazine story about Prince. AWF received $10,000 for the licensed use. Goldsmith received nothing and was not credited as the author of the original photo.

When Goldsmith complained about the use of the image, AWF sued her seeking a declaration of non-infringement on the basis of fair use.

The District Court granted summary judgment for AWF on its assertion of “fair use”, but the Court of Appeals for the Second Circuit reversed. In the US Supreme Court, the sole question is whether the first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” weighs in favour of AWF’s commercial licensing to Condé Nast.

In the figures below are. to the right, Lynn Goldsmith’s photo and, to the left ,the orange version of Goldsmith’s photo made by Warhol superimposed on the photo.

Legal Analysis

Justice Sotomayor delivered the opinion of the Court.

She emphasized that the case was about two artists – Andy Warhol, whose derivative works are well-known, and Lynn Goldsmith, a rock and roll photographer.

Justice Sotomayor reviewed the legal history of the dispute noting that the Court of Appeals rejected the District Court’s logic that “each Prince Series work” is transformative because it “is immediately recognizable as a Warhol”^[6]. She noted that the Court of Appeal rejected the idea of a “celebrity-plagiarist privilege”.^[7]

The Court of Appeals found that the works were substantially similar.

Justice Sotomayor noted that “the first fair use factor” … “focuses on whether an allegedly infringing use has a different purpose or different character, which is a matter of degree, and degree of difference must be weighed against other considerations, like commercialism”.^[8]

At issue, the Court found that the specific use of Goldsmith’s photo is AWF’s licensing of the Orange Prince to Conde Nast. Both were used to illustrate magazine stories about Prince. As a result, “the original photograph and AWF’s copying use of it shares substantially the same purpose”.^[9]

As a result, the first fair use factor favoured Goldsmith.^[10]

The Court said the “central” question that it asks is “whether the new work merely ‘supersede[s] the objects’ of the original creation …. (‘supplanting the original’), or instead adds something new with a further purpose or different character”.^[11]

The Court noted that the copyright owner has a right to authorize the making of derivative transformations of her work and an overbroad concept of transformative use that “includes any further purpose or any different character would narrow the owner’s exclusive right to create derivative works.”^[12]

In summary, the Court found that “the first fair use factor considers whether the use of a copyrighted work has a further purpose or different character, which is a matter of degree, and the degree of difference must be balanced against the commercial nature of the use.”^[13]

Lastly, the Court noted that the analysis of the use must consider that a different purpose may be fair for one purpose, such as education, but not for another.^[14]

The dissent, by Justice Kagan, would have found that Warhol’s artistic treatment would have been so transformative that it would apply to all analyses of transformative use.

The result is a victory for creators whose works are used without amortization as references or foundation for derived works.

__________

^[1] See §107, Copyright Act (US); See also Google, LLC v. Oracle America, Inc., 593 U.S. ___ (2021).

^[2] See Google, LLC v. Oracle America, Inc., 593 U.S. ___ (2021) ; Stewart v. Abend, 495 U. S. 207, 236 (1990).

^[3] While the US provision refers to purposes such as “purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research” US Courts have consistently held that the purposes are open ended.

^[4] In Canada, the purposes assessment is followed by a fairness analysis.

^[5] See §107, Copyright Act (US).

^[6] See Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U. S. ____ (2023) at page 10.

^[7] See Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U. S. ____ (2023) at page 11.

^[8] See Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U. S. ____ (2023) at page 12 citing Campbell v. Scuff-Rose Music, Inc. 510 U.S. 569 at page 579 (1994).

^[9] See Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U. S. ____ (2023) at page 13.

^[10] See Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U. S. ____ (2023) at page 13.

^[11] See Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U. S. ____ (2023) at page 15 citing Campbell v. Scuff-Rose Music, Inc. 510 U.S. 569 at page 579 (1994) quoting Folsom v. Marsh., 9 F Cas, 342, 348 (No. 4,901) (CC Mass 1841)(Story, J.) and Harper & Row, Publishers, Inc. v. Nations Enterprises, 471 U.S. at 562.

^[12] See Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U. S. ____ (2023) at page 16.

^[13] See Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U. S. ____ (2023) at page 20.

^[14] See Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U. S. ____ (2023) at page 20.