Fair Use Protection Against Copyright Infringement Claims Just Got Smaller

Regarding copyright fair use, are we being ruled from beyond the grave by artists who died young?

The Supreme Court just decided an important fair use case against the Andy Warhol Foundation (Warhol died at age 58) concerning art he created based on a photograph of the musician Prince (died at 57). In doing so, it revamped its decision concerning the song “Oh, Pretty Woman” by Roy Orbison (died at 52), which was remade without permission by a rap group, 2 Live Crew (member Fresh Kid Ice died at 53).

The Warhol case has big implications for content creators and some effect on businesses generally.

First, consider this background. Copyright protects various rights of an author to what he or she creates, such as a photograph, news article, or software code. It protects the right to make copies and derivative works, the latter of which modify the original, such as a book’s second edition. Anytime you make a copy or derivative work of someone else’s copyright property, that’s infringement unless you get permission or your action constitutes fair use.

The federal copyright statute defines fair use only vaguely. Possible fair uses of other people’s copyright property include commentary, news reporting, and teaching.

The statute requires courts to consider four factors: (i) The purpose and character of the use, including whether the use is commercial or nonprofit, (ii) the copyrighted work’s nature, (iii) the amount and fraction of the copyrighted work used, and (iv) the effect on the copyrighted work’s market value. This is a fuzzy analysis, so it’s difficult to confidently say when a use is fair.

The leading case was the Supreme Court’s 1994 decision concerning Orbison’s song “Oh, Pretty Woman.” 2 Live Crew made a rap rendition of the song without the permission of the copyright owner.

The Supreme Court agreed with the rap group that its song was a parody. Some factors weighed against fair use, mainly that 2 Live Crew was a for-profit venture. But the Court held that the rap version was “transformative” because its parody altered the original with “new expression, meaning, or message,” so it concluded the rendition was fair use.

The recent Warhol decision changed that law. Here, Lynn Goldsmith took a photo of Prince in 1981 and licensed it to Newsweek for a story about the “up-and-coming” musician.

In 1984, Goldsmith sold a license for $400 to Vanity Fair magazine to use the photo once as an “artist reference” for a story about Prince. The artist, who reworked the picture into a silkscreen portrait, was Andy Warhol.

Warhol didn’t stop there. Without Goldsmith’s permission, he created 16 screen-prints of the same photograph in various color schemes. One of them, “Orange Prince,” renders the musician in orange and black.

After Prince died in 2016, Condé Nast magazine (a sister publication to Vanity Fair) published an issue about his life. Condé Nast put Orange Prince on the cover. It paid $10,000 to the Warhol Foundation for a license but nothing to Goldsmith and didn’t get her permission.

This led to litigation between Goldsmith and the Warhol Foundation. The Supreme Court decided this use of Orange Prince wasn’t fair.

In doing so, the Court tremendously reduced the importance of transformativeness. The Court held that when the copyrighted original and the unauthorized rendition are used for the same purpose, and when the defendant is for-profit, the defendant’s use usually isn’t fair even if it’s transformative. Here, the Warhol Foundation lost because the Goldsmith photo and Orange Prince both were magazine art for a story about Prince and Condé Nast is for-profit.

Who should care about this?

Creators can no longer count on fair use just because they substantially transform someone else’s work. This applies to anyone who borrows from someone else’s creative work without permission, such as from news stories, books, or software, and to people reworking pictures (such as with filters) for social media and websites.

Now, the borrowing artist must focus on whether the original work and the borrower’s rendition might be used for the same purpose. If the purposes are the same, such as artwork for a company’s blog post, and if the company is for-profit, there is a high risk that the borrowing isn’t fair use.

That puts the borrowing artist in a tough spot. Some uses of the new art might be fair use and others not. For example, while using Orange Prince for a magazine story about Prince wasn’t fair use, almost certainly displaying the Warhol Prince series in museums isn’t copyright infringement.

This decision affects businesses too. It strengthens the hand of copyright owners, which benefits businesses that create content and may expand licensing opportunities for that content.

But businesses must coach their content creators, especially those handling websites and social media. Tell them that using the copyright property of others without a license isn’t OK just because you transform it. If you use someone else’s work as your starting point, such as a news article or blog post, you must either completely rewrite it in your own words or vet it with the legal department.

Written on June 21, 2023

by John B. Farmer

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