Fair Use in the Copyright Act

Section 107 of the Copyright Act provides for a “fair use” defense to claims of copyright infringement. The statute generally requires the application of a four-factor test to determine whether the defendant’s use of the plaintiff’s work, while infringing, is still permissible under the Act. The problem with this statute is that its application is not self-evident in numerous cases involving contemporary art.

The first element of first use, the purpose of the defendant’s use of the plaintiff’s work, involves a factual analysis of why the defendant did what she did with the plaintiff’s work. On the one hand, a defendant merely trying to profit from a plaintiff’s original work is probably not a fair use purpose, while a defendant that “transforms” the original work into a new expression may be a fair use purpose.

Recently, the Second Circuit had to address this issue in the case, Andy Warhol Foundation for the Visual Arts v. Goldsmith, 11 F.4th 26 (2nd. 2021) (cert. granted by USC Mar. 28, 2022). At issue in that case was a photograph taken by the Goldsmith of the late, well-known musician, Prince, which was subsequently used by the late Andy Warhol in a series of prints based on the photograph. On discovery of the unlicensed use, Goldsmith notified Andy Warhol Foundation for the Visual Arts (“AWF”) of the apparent infringement, and AWF subsequently filed a lawsuit for a declaration that the Warhol works were not infringing as a matter of law.

Appropriation artists are no stranger to copyright infringement lawsuits in the second circuit. Jeff Koons was subject to two different cases involving his use of photographs in his works. In Rogers v. Koons, 960 F.2d 301 (2nd cir. 1992), the Rogers Court found that Koons’ use of the photo was not a fair use as the use was not sufficiently transformative. However, in a later case, Blanch v. Koons, 467 F.3d 244 (2006), the Court found that Koons’ use of a different photograph was a fair use. Both, of course, were appropriations of another’s work, but the distinction of which was fair under the copyright statute turned on the Blanch court’s finding that the use was sufficiently transformative.

Another appropriation artist, Richard Prince (no relation to the late musician, Prince), was subject to a lawsuit involving copyright infringement by yet another photographer, Patrick Cariou. Cariou v. Prince, 714 F.3d 694 (2nd cir. 2013) (cert. denied). There, the Cariou court found that most of Prince’s paintings and collages were fair uses of Cariou’s works as a matter of law, and remanded the case to the district court to evaluate whether the remaining five were also fair use using the standards laid out in the appellate court’s decision.

In Goldsmith, however, the Second Circuit decided that Andy Warhol’s use was not a fair use of Goldsmith’s unpublished photograph of the late Prince. The Court found that Warhol’s removal of certain elements from Goldsmith’s photograph, and embellishing them with loud and unnatural colors was simply not transformative. While the Court is careful to insist that judges should not be transformed into art critics to decide fair use claims, the Court’s attempt to cabin in fair use to some objective standard for works may just be the Court’s rejection of “appropriationism.”

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Maryland technology attorney and college professor.

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