Andy Warhol Foundation v. Goldsmith Certiorari Brief Breakdown
The Andy Warhol Foundation For the Visual Arts v. Goldsmith case may be the most important copyright law case in decades, and the certiorari briefs were filed just a few months ago. This judgment can build on the guidance offered by the Supremes in Campbell v. Acuff-Rose Music, Inc. and further clarified in Google LLC v. Oracle America, Inc. It also has the potential to be the defining case for fair use, depending on how bold the court is feeling. At its heart, the case is a rare, in-depth look at the line between fair use and unlawful infringement. Zoom in deeper, and this is a debate regarding how much subjective reinterpretation of the messaging of original works by an audience can be considered to excuse infringement.
To put it more succinctly: what does it mean within the definition of copyright law to be “transformative,” and how much weight should transformativeness be given in a fair use analysis?
Several arguments are advanced, but the ones directly addressing the transformativeness standard will likely have the most profound implications. Below is a brief background and list of points and quotes addressing the most relevant portions of the transformativeness battleground. This is by no means an exhaustive list, but it gives a good idea of how the case is being defined at the high court during its outset, and where the rhetorical battlelines are drawn.
A painting used in the Vanity Fair article, Purple Fame, incorporating visual elements from a photo of Prince shot by Goldsmith
Second Circuit Case Background
At the Second Circuit, the case revolved around whether Andy Warhol’s use of Goldsmith’s copyrighted photo in creating a painting that shared visual elements of the photo was “fair use.” One of the touchstones of fair use, and where much of the exciting litigation occurs, is “transformativeness.” This is because courts have recognized that the transformation of pre-existing art into new work, i.e. through parody, is essential to freedom of speech and advancing creative works in general. Because of this, whether an infringing work is transformative is often the single most important question in fair use cases.
However, the definition of transformativeness is not particularly clear. For example, how much of a copyrighted work can be used, and how much consideration should the court give to an audience’s subjective perspective in determining the work’s message?
In the Andy Warhol Foundation case, the Second Circuit answered:
…whether a work is transformative cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic – or for that matter, a judge – draws from the work. Were it otherwise, the law may well “recogniz[e] any alteration as transformative.”… as we have discussed, the court must examine how the works may reasonably be perceived…. the judge must examine whether the secondary work’s use of its source material is in service of a “fundamentally different and new” artistic purpose and character, such that the secondary work stands apart from the “raw material” used to create it. Although we do not hold that the primary work must be “barely recognizable…” the secondary work’s transformative purpose and character must, at a bare minimum, comprise something more than the imposition of another artist’s style on the primary work such that the secondary work remains both recognizably deriving from, and retaining the essential elements of, its source material.
Dissatisfied with the judgment, the Andy Warhol Foundation appealed.
The major points of contention, outside of the potential existence of a circuit split, are the case’s framing and implications drawn from the Campbell and Google decisions.
Framing the Case
The Andy Warhol Foundation for the Visual Arts (AWF) has framed the questions presented in the case as:
Whether a work of art is “transformative” when it conveys a different meaning or message from its source material (as this Court, the Ninth Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it “recognizably deriv[es] from” its source material (as the Second Circuit has held).
Goldsmith has a somewhat narrower framing:
The question presented is whether the Second Circuit correctly held that Warhol’s silkscreens of Prince did not constitute a transformative use, where Warhol’s silkscreens shared the same purpose as Goldsmith’s copyrighted photograph and retained essential artistic elements of Goldsmith’s photograph.
Views on the Second Circuit Court Analysis
Throughout the briefs are different opinions of the validity of the Second Circuit’s interpretation of transformativeness. At the core of the AWF’s argument is that the Second Circuit misapplied the standard for transformativeness established in Campbell v. Acuff-Rose Music, Inc. and Google LLC. v. Oracle America, Inc. by not considering whether Warhol’s painting added a new expression, meaning, or message. They also touch on how fair use is designed to protect media that is recognizably derived from another.
A few key quotes from the AWF argument include:
The Second Circuit’s ruling clearly conflicts with this Court’s precedent. The Court has repeatedly stated that whether a new work is transformative turns on whether that work “‘adds something new . . . [by] altering’ the copyrighted work ‘with new expression, meaning or message.’” Google, 141 S. Ct. at 1202 (quoting Campbell, 510 U.S. at 579). Departing from that principle, the Second Circuit applied a brand-new test of its own invention— holding that a new work of visual art cannot be transformative if it “remains both recognizably deriving from, and retaining the essential elements of, its source material.” App. 23a-24a;
The notion that visual or aesthetic “recognizability” is the touchstone for transformativeness is irreconcilable with Campbell and Google. In both those cases, the later work “recognizably deriv[ed] from, and retain[ed] the essential elements of, [the] source material.”… In neither Campbell nor Google did this Court even hint at a framework that turns on the “recognizability” of the first work in the second. Rather, the Court mandated a different analysis turning on the purpose for which the successor work used the original’s content. It is simply impossible to determine whether a new work adds “something new,” including “new expression, meaning or message”—the inquiry required by the decisions in Google, 141 S. Ct. at 1202 and Campbell, 510 U.S. at 579—if a court is forbidden from trying to “ascertain the intent behind or meaning of the works at issue,” as the Second Circuit now holds, App. 22a-23a;
A follow-on work that deploys preexisting content in the service of saying something new and distinct is much more likely to be fair use. The Second Circuit’s test, however, forbids ascertaining whether the follow-on work conveys a different meaning or message from the original, where both pieces are works of art that share a visual resemblance… the Second Circuit’s approach expressly forbids courts from inquiring into the message or meaning an artist sought to convey or that a relevant audience might reasonably perceive.
Here, there is no dispute that the Prince Series does communicate a different meaning and message than Goldsmith’s original… Nonetheless, the Second Circuit held that when assessing transformativeness under the first fair use factor, courts should not analyze alleged differences in meaning between two artworks that share a close visual resemblance. Pet. App. 22a-25a.
Goldsmith, on the other hand, agreed with the Second Circuit, arguing that the change in message interpreted by the audience was insufficient to qualify the work for protection under fair use.
Goldsmith argued:
Far from pioneering a novel fair-use test, the Second Circuit faithfully applied this Court’s test for transformativeness—a component of the first fair-use factor—by determining that a secondary work by Andy Warhol that replicated respondent Lynn Goldsmith’s photograph did not “add[] something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Pet.App.13a (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)).
This Court has never suggested that a work is always transformative if it carries any different meaning or message. Rather, this Court has held that the transformativeness inquiry involves “whether the new work merely ‘supersede[s] the objects’ of the original creation … or instead adds something new, with a further purpose or different character, altering the copyrighted work with new expression, meaning or message.” Campbell, 510 U.S. at 579 (emphasis added); see also Google, 141 S. Ct. at 1202.
The Second Circuit correctly applied this Court’s precedent by asking whether Warhol’s Prince Series “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character.” Pet.App.13a (quoting Campbell, 510 U.S. at 579).
In short, the Second Circuit simply rejected petitioner’s proposed categorical rule that whenever an artist or another viewer subjectively opines that the secondary work has a new meaning or message, that alone makes the work transformative. Id
Also Worthy of Note
The AWF also makes arguments about the necessity of appropriation in art, how a visual similarity test will undercut the core purpose of the fair use doctrine as it applies specifically to infringing works, and that the Second Circuit conflates transformativeness and substantial similarities inquiries.
In My Humble Opinion…
I disagree that the Second Circuit test allows for no consideration of a change in messaging, finding the word “merely” pivotal: “whether a work is transformative cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic – or for that matter, a judge – draws from the work.” This does not forbid an inquiry into the messaging; rather, it limits it to a factor in the analysis for the express purpose of preventing a situation where, as described by the Second Circuit, “the law may well ‘recogniz[e] any alteration as transformative.’”
The messaging of art is highly subjective, but if copyright law is to have any meaning, lines for infringement need to be drawn at some point. Looking to AWF’s argument, they barely address where they think that reasonable lines could be drawn. This can be seen in their reply brief, where they argue that the recreation of Prince’s image was akin to the Pretty Woman song parody in Campbell: parody making a statement on the original art is the clearest example of fair use and the song at issue in Campbell was an obvious case of parody, while Warhol’s appropriation of Prince’s image was, at the very least, more nuanced and would likely not be considered parody, but satire.
The natural endpoint of AWF’s argument is seemingly that any potential for an audience to draw differing conclusions from the same work of art pushes infringement into fair use. This is unfortunate because, while their unrestrained argument places my values with the other side, I can see the point that they are making regarding the transformativeness of the painting arguably placing it within fair use, just not in the way these attorneys argue.
I appreciate the middle-of-the-road approach of the Second Circuit, weighing both the reasonable messaging, as well as how much of the original work was recognizably taken. However, I would really want to see it mature into something more akin to the Reid factors for employment: an enumerated guideline with no single factor being dispositive, but still providing for some contractual and litigational clarity.
I for one will be fascinated to see how the Supremes rule. I have my fingers crossed that there will be some further guidance to define what is still a very nebulous estimation of the boundaries of fair use. While the case will likely be a strong statement on these boundaries considering the issues presented even with a narrow ruling, a broad ruling could easily change key concepts in art and entertainment law moving forward.