Transformation

Artists often wonder about fair use. How much of a previously copyrighted work can be copied in a new work without infringing the copyright owner’s rights. It’s often an area shaded in gray rather than the black and white answer artists want. That’s because the origins of the “fair use” defense was balancing the copyright owner’s rights against the constitutionally protected right of free speech. Section 107 of the Copyright Act has statutorily defined fair use using four factors: 

• the purpose and character of the use; 
• the nature of the copyrighted work; 
• the amount of the copyrighted work that is taken; and 
• the effect of the use upon the potential market for the copyrighted work.

Now, the Supreme Court is going to hear a fair use case that tests the limits of fair use. According to an appellate court, Andy Warhol’s Prince Series infringed the copyright in a photograph of Prince taken by Lynn Goldsmith. This overturned the district court’s decision, which applied the test and found that Warhol’s Prince Series was “transformative” insulating the work from copyright infringement.

What is transformative? It’s long been seen as a highly subjective determination. What is transformative to one court is not transformative to another. Artists have probably heard that changing just 20% of a work is enough to make a work transformative, but this is a myth. Applying the case law in a fair use opinion is one of the most difficult exercises a copyright attorney can undertake, costing thousands, if not tens of thousands, in attorney time and effort. Due to the subjective nature of determining what is transformative, the attorney’s opinion, at the end of the day, is just that, an opinion, and it is likely not going to take a firm stand. It’s likely to weigh the issues and examine the risks without giving and artist a clear go ahead. 

So, will the Supreme Court clarify what is transformative? Maybe. If a decision is reached, it is likely going to be dissected by the copyright lawyers, the district courts and the appellate courts for everything that can possibly be gleaned from its decision. The decision is unlikely to ditch the “transformative” analysis entirely, but it may draw a new line for what is transformative in the context of artwork. Don’t expect the line to be a bright line, however. Any new line is likely to be just as gray and shadowy as the previous line. 

The appellate court in the Second Circuit opined that “…it does not follow … that any secondary work that adds a … new expression to its source material is necessarily transformative.” Instead, a transformative work “…must reasonably be perceived as embodying a distinct artistic purpose, one that conveys a new meaning or message separate from its source material.” When this reasoning was applied to Andy Warhol’s Prince Series, the appellate court found that it was not transformative of the original work, both capturing exactly the same portrait of Prince with only Andy Warhol’s style being added to Lynn Goldsmith’s photograph. This is where the courts in the Second Circuit have drawn a line, but other courts in other appellate circuits have drawn different lines. 

It’s time for the Supreme Court to revisit the “transformative” analysis, which is not found in the statute. It’s own reasoning in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) opened this can of worms by stating that “…the more transformative the new work, the less will be the significance of other factors…,” but over time, this phrase has rendered the “fair use” factors in some courts superfluous with a “transformative” analysis becoming determinative of whether a work is fair use or foul, and since transformation is in the eye of the beholder, Campbell has led to inconsistent results.

It’s quite possible that the Supreme Court of the United States takes issue with the appellate court’s Andy Warhol reasoning, which expressed its opinion that the Supreme Court’s decision in Google LLC v Oracle America, Inc., 141 S. Ct. 1183 (2021) helped inform its decision. The Supreme Court in that decision found Google’s use of Oracle’s programming interface a fair use for its new programming language, but the Supreme Court was careful to couch the transformative language in the Google decision, which focused on technological transformation, from traditional artistic “transformative” fair use analysis.

Regardless of the intent of the nine justices, any decision in the Andy Warhol case is going to be used by copyright lawyers and the courts to shape the analysis of statutory fair use in the future, which makes this case important to artists and entertainers.